Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases. (b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default. (c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect. (d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein. (e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities. (f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 2 contracts
Sources: Stock Purchase Agreement (UCI Holdco, Inc.), Stock Purchase Agreement (United Components Inc)
Real Property. (a) Schedule 5.10(aHRB or a HRB subsidiary (x) sets forth a complete list of (i) has good and marketable title to all the real property and interests specifically identified as “owned” on Section 4.19(a) of the HRB Disclosure Schedule or acquired after the date of this Agreement (except properties sold or otherwise disposed of since the date hereof in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries accordance with this Agreement) (individually, an “Owned Property” and collectively, the “HRB Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverLiens, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defectsEncumbrances, and (iiiy) are suitableis the lessee of all leasehold estates specifically identified as “leased” on Section 4.19(a) of the HRB Disclosure Schedule or acquired after the date of this Agreement (except for leases that have expired by their terms since the date of this Agreement) (the “HRB Leased Properties” and, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser truecollectively with the HRB Owned Properties, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the “HRB Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases”).
(b) Each With respect to each of the Real Property Leases HRB Leased Properties: (i) HRB or one of its Subsidiaries has a valid leasehold interest in each of the HRB Leased Properties; (ii) such lease is legal, valid, binding and enforceable in accordance with its terms and in full force and effect. Neither ; (iii) the Company transactions contemplated hereby do not require the consent of any other party to such lease and will not result in a breach of or default under such a lease, or otherwise cause such lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing; (iv) neither HRB nor any Subsidiary is (andits Subsidiaries nor, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the CompanyHRB’s knowledge, any other Person) party to the lease is in breach or default under such lease and no event has occurred under any Real Property Lease or circumstance exists which, if not remediedin any of the foregoing cases with delivery of notice, would (whether with or without notice or the passage of time or both) result in , would permit the termination, modification or acceleration of rent under such a defaultlease.
(c) The Company and Other than the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company HRB Real Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company neither HRB nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property other direct or any portion thereofindirect interest in real property, whether owned, leased, optioned or otherwise, and no such special assessment is pending or, to the Knowledge HRB Real Property comprise all real property associated with the operation of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company PropertyHRB’s business.
Appears in 2 contracts
Sources: Merger Agreement (Xenith Bankshares, Inc.), Agreement and Plan of Reorganization (Hampton Roads Bankshares Inc)
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) Schedule 4(k)(i) of the Disclosure Schedule lists all real property owned by the Companies and interests in their Subsidiaries. With respect to each such parcel of real property:
(A) the owner has good and marketable title to the parcel of real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrance, easement, covenant, or other restriction, except (A) those Liens set forth on Schedule 5.10(a) for installments of special assessments not yet delinquent, recorded easements, covenants, and other restrictions, and utility easements, building restrictions, zoning restrictions, and other easements and restrictions existing generally with respect to properties of a similar character that do not materially impair the current or contemplated use of such parcel or the value thereof;
(B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties there are not subject to any leases, rights, options, subleases, licenses, occupancy agreementsconcessions, concessions or other agreements or arrangements, written or oral, granting to any Person party or parties the right to purchaseof use or occupancy of any portion of the parcel of real property, other than leases, subleases, licenses and other agreements which do not, individually or in the aggregate, materially impair the current or contemplated use of such property or the right to use or occupy any such Company Property, except the Real Property Leases.value thereof;
(bC) Each of the Real Property Leases is in full force and effect. Neither the Company nor there are not any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with outstanding options or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right rights of first refusal or other contractual right to purchase, acquire, sell, assign or dispose purchase the parcel of any real estate property or any portion thereof (or interest therein.any binding commitment to grant or enter into any such option or right);
(eD) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There there are no pending or, to the Knowledge of the CompanySpecified Employees, threatened condemnation proceedings;
(E) all approvals of Governmental Agencies (including licenses and permits) required in connection with the ownership or eminent domain proceedings with respect operation thereof have been received, except those the failure to obtain which would not, individually or in the aggregate, materially impair the current or contemplated use of such property or the value thereof.
(ii) Schedule 4(k)(ii) of the Disclosure Schedule lists all leases and subleases of real property to which any material portion of any Company Propertythe Companies or their Subsidiaries is a party as of the date of this Agreement providing for lease payments in excess of $20,000 per year. HarnCo and Sellers have made available to Investor copies of the leases and subleases listed in Schedule 4(k)(ii) of the Disclosure Schedule. To the Knowledge of the Specified Employees, each lease and sublease relating to the property listed in Schedule 4(k)(ii) of the Disclosure Schedule is legal, valid, binding, enforceable, and in full force and effect.
Appears in 2 contracts
Sources: Recapitalization Agreement (MMH Holdings Inc), Recapitalization Agreement (Morris Material Handling Inc)
Real Property. (a) Schedule 5.10(a) sets forth a complete list With respect to each such parcel of Owned Real Property: (i) all real property the Contributor has good and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with marketable title to the Owned PropertiesReal Property, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all any Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) for Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, Liens; (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the CompanyContributor, threatened threatened, condemnation proceedings, lawsuits or eminent domain proceedings administrative actions relating to the Owned Real Property; (iii) the legal description for Owned Real Property contained in the deed thereof describes such Owned Real Property fully and adequately, the buildings and improvements are located within the boundary lines of the described parcels of land, are not in violation of applicable setback requirements, zoning laws and ordinances (and none of the Owned Real Property or buildings or improvements thereon are subject to “permitted non-conforming use” or “permitted non-conforming structure” classification), and do not encroach on any easement that may burden the land, and the land does not serve any adjoining property for any purpose inconsistent with the use of the land, except as is set forth on Section 2.13 of the Disclosure Schedule, the property is not located within any flood plain or subject to any similar type restriction for which any material Assigned Licenses have not been obtained and access to the property is provided by paved public right of way with adequate curb cuts available; (iv) all facilities have received all approvals of Governmental or Regulatory Authorities (including Licenses) required in connection with the ownership or operation thereof and have been operated and maintained in accordance with applicable Laws; (v) except as set forth in Section 2.13 of the Disclosure Schedule, there are no leases, subleases, Licenses, concessions, easements, servitudes, rights-of-way, encumbrances or other Contracts granting to any party or parties the right of use or occupancy of any portion of the Owned Real Property; (vi) neither the leases, subleases, Licenses, concessions, easements, servitudes, rights-of-way, encumbrances or Contracts set forth in Section 2.13 of the Disclosure Schedule nor the enforcement of any rights thereunder by any party thereto have or may have a material adverse impact on the Acquiror’s ability to continue to operate the Owned Real Property as a refinery in the same manner as the Contributor has operated the same prior to the Closing Date and (vii) with respect to any material portion the easements, licenses and rights-of-way comprising the Owned Real Property, the Contributor has good and marketable title to or interests therein sufficient to enable the Acquiror to use and operate the Contributed Assets in a reasonable and customary manner, free and clear of Liens except Permitted Liens.
(b) The Contributor has delivered to the Acquiror prior to the execution of this Agreement true and complete copies of all deeds, leases, mortgages, deeds of trust, certificates of occupancy, title insurance policies, title reports, surveys, easements, licenses, rights of way, restrictions and similar documents, and all amendments thereof, with respect to the Owned Real Property.
(c) There are no tenants or other parties in possession of any Company Owned Real Property. No Person has any right to purchase, or holds any right of first refusal to purchase, such properties.
(d) Except as set forth in Section 2.13 of the Disclosure Schedule, all public utilities, including, without limitation, water and wastewater, have been extended to a boundary line of each tract of the Owned Real Property through adjoining public streets, or if they pass through adjoining private land, do so in accordance with validly existing easements permitting such use, and all installation and connection charges necessary to use such public utilities have been paid in full. All facilities located on the Owned Real Property are supplied with utilities and other services, including gas, electricity, water, telephone, sanitary sewer and storm sewer as are necessary for their current use, all of which services are in accordance with all applicable Laws and are provided via public roads or via permanent, irrevocable, appurtenant easements benefiting the Owned Real Property. The improvements on the Owned Real Property are in good operating condition and in a state of good maintenance and repair, ordinary wear and tear excepted, and are adequate and suitable for the purposes for which they are presently being used and there are no condemnation or appropriation proceedings pending or, to the Knowledge of the Contributor, threatened, against any such Owned Real Property or the improvements thereon.
Appears in 2 contracts
Sources: Contribution Agreement (Martin Midstream Partners Lp), Contribution Agreement (Martin Midstream Partners Lp)
Real Property. (a) Schedule 5.10(a4.14(a) sets forth forth, as of the date of this Agreement, a complete list of (i) all material real property and interests in real property, including improvements thereon foreign and easements appurtenant thereto domestic, owned in fee by Satlynx or any of its Subsidiaries (individually, a “Satlynx Owned Property”) or that is used exclusively in the Company and the Subsidiaries AMC-23 Business (individually, an “AMC-23 Owned Property” and collectively, the “Owned Properties”). Schedule 4.14(b) sets forth, (ii) as of the date of this Agreement, a complete list of all material real property and interests in real property leased by the Company Satlynx or the any of its Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together Satlynx Leased Property”) or that is leased exclusively in connection with the Owned PropertiesAMC-23 Business (individually, being referred to herein individually as a an “Company AMC-23 Leased Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have .
(i) Either Satlynx or one of its Subsidiaries has good and marketable fee title to all Satlynx Owned Property and valid leasehold estates in all Satlynx Leased Property (a Satlynx Owned Property or Satlynx Leased Property being sometimes referred to herein, individually, as a “Satlynx Property”), and (ii) a either SES or one of the SES Entities has good and marketable fee title to all AMC-23 Owned Property and valid leasehold interest inestates in all AMC-23 Leased Property (an AMC-23 Owned Property or AMC-23 Leased Property being sometimes referred to herein, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) ofindividually, all Company Properties subject to Real Property Leasesas an “AMC-23 Property”), in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (Aa) those Liens Permitted Encumbrances, (b) leases, subleases and similar agreements set forth on in Schedule 5.10(a4.14(b), (c) easements, covenants, rights-of-way and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection other similar restrictions of record that do not materially interfere with the business current use of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildingsrelevant Satlynx Property or AMC-23 Property, fixtures and Improvements thereon are, to the Knowledge of the Company, (d) (i) in good operating conditionzoning, building and other similar restrictions, (ii) are free from material structural defectsEncumbrances that have been placed by any developer, landlord or other third party on property over which either SES or one of the SES Entities has easement rights or on any Satlynx Leased Property or AMC-23 Leased Property and subordination or similar agreements relating thereto and (iii) are suitableunrecorded easements, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leasescovenants, rights, options, subleases, licenses, occupancy agreements, concessions or -of-way and other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if similar restrictions that do not remedied, would (whether materially interfere with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company relevant Satlynx Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company AMC-23 Property.
Appears in 2 contracts
Sources: Share Redemption Agreement, Share Redemption Agreement (AsiaCo Acquisition LTD)
Real Property. (a) Schedule 5.10(aSection 4.10(a) of the Disclosure Schedules sets forth a complete list each parcel of (i) all real property owned by each Seller and interests used in real propertyor necessary for the conduct of the Business as currently conducted (together with all buildings, including fixtures, structures and improvements situated thereon and easements all easements, rights-of-way and other rights and privileges appurtenant thereto owned in fee by the Company and the Subsidiaries (individuallythereto, an “Owned Property” and collectively, the “Owned PropertiesReal Property”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectivelyincluding with respect to each property, the “Real Property Leases” and, together with the Owned Properties, being referred address location and use. Seller Parent has delivered to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name Buyer Parent copies of the third party lessor or lessee deeds and other instruments (as recorded) by which any Seller acquired such parcel of Owned Real Property, and copies of all title insurance policies, opinions, abstracts and surveys in the date possession of the lease or sublease and all amendments thereto)such Seller with respect to such parcel. The Company and the Subsidiaries have With respect to each parcel of Real Property:
(i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens as set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently usedSection 4.10(a)(i), occupied no Seller has leased or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation portion thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.; and
(dii) Neither the Company nor any Subsidiary ownsthere are no unrecorded outstanding options, holds, is obligated under rights of first offer or is a party to, any option, right rights of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate purchase such Owned Real Property or any portion thereof or interest therein.
(eb) Subject to market limitations Section 4.10(b) of the Disclosure Schedules sets forth each parcel of real property leased by each Seller and the other events affecting the geographical area used in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably or necessary for the operation conduct of the Business as currently conducted (together with all rights, title and interest of such Company Seller in and to leasehold improvements relating thereto, including, but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “Leased Real Property”), and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether written or oral), including all amendments, extensions renewals, guaranties and other agreements with respect thereto, pursuant to which such Seller holds any Leased Real Property (collectively, the “Leases”). Seller Parent has delivered to Buyer Parent a true and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.complete copy of each Lease. With respect to each Lease:
(fi) Neither such Lease is valid, binding, enforceable and in full force and effect, and each Seller enjoys peaceful and undisturbed possession of the Company nor any Leased Real Property;
(ii) no Seller is in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of its Subsidiaries notice, passage of time or both, would constitute such a breach or default, and each Seller has paid all rent due and payable under such Lease;
(iii) no Seller has received written or given any notice of any material special assessment relating default or event that with notice or lapse of time, or both, would constitute a default by such Seller under any of the Leases and, to the Knowledge of Seller Parent, no other party is in default thereof, and no party to any Company Lease has exercised any termination rights with respect thereto;
(iv) no Seller has subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof; and
(v) no Seller has pledged, and no such special assessment is mortgaged or otherwise granted an Encumbrance on its leasehold interest in any Leased Real Property.
(c) No Seller has received any written notice of (i) violations of building codes and/or zoning ordinances or other governmental or regulatory Laws affecting the Real Property, (ii) existing, pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, or threatened condemnation proceedings affecting the Real Property, or eminent domain proceedings with respect (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which could reasonably be expected to adversely affect the ability to operate the Real Property as currently operated. Neither the whole nor any material portion of any Company PropertyReal Property has been damaged or destroyed by fire or other casualty.
Appears in 2 contracts
Sources: Master Purchase Agreement (Emcore Corp), Master Purchase Agreement (Emcore Corp)
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all real property Geo has good and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good marketable fee title to all Owned an undivided twenty percent (20%) interest the Vulcan Property, and there are no liens, encumbrances, leases, security interests, easements, rights-of-way, charges, adverse claims, management agreements, continuing contracts or other exceptions to title affecting title to the Vulcan Property and other than the matters set forth in the Preliminary Commitment for Title Insurance issued by Commonwealth Land Title Insurance Company under Order No. 35376, (iithe “Title Report”) a valid leasehold interest in, true and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant correct copy of which has been provided to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each The Geothermal Properties comply in all material respects with all applicable laws, ordinances, rules and regulations (including without limitation those relating to zoning and platting), and none of Geo or the Real Property Leases Principal Geo Shareholders has any Knowledge of a violation of any such laws, ordinances, rules or regulations. There is in full force and effect. Neither the Company nor any Subsidiary is (and, sufficient access to the Knowledge of Geothermal Properties to permit Geo to conduct the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultBusiness as contemplated.
(c) The Company All notices, licenses, permits, certificates and authority required in connection with the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Propertyconstruction, and any agreementuse, easement or other right from any other Personoccupancy, necessary to permit the lawful use and operation of the Improvements Geothermal Properties by Geo prior to and as of the date hereof and the Company Property or any drivewaysEffective Time, roads have been obtained and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is are in full force and effect, and there none will be adversely affected by the Merger.
(d) None of Geo or the Principal Geo Shareholders has any Knowledge of any structural defects in any improvements located on the Geothermal Properties.
(e) Schedule 3.24 sets forth an accurate, correct and complete list of the Geothermal Agreements, a description of the leasehold rights, street address (if applicable), annual rent, royalty or other consideration obligations, expiration date, other material provisions, and list of contracts, agreements, leases, subleases, options and commitments, oral or written, affecting the Geothermal Properties or any interest therein to which Geo is no pending ora party or by which any of its interests in the Geothermal Properties is bound, and all improvements thereon. Geo has been in peaceable possession of the real property covered by each Geothermal Agreement since the commencement of the original term of such agreement, and has performed all obligations required to be performed by it to date under such Geothermal Agreement. Except as disclosed on Schedule 3.24, neither the Geothermal Properties nor the leasehold interest nor any of the leasehold improvements of Geo with respect to the Geothermal Properties is subject to any Liens; and none of the Geothermal Properties is subject to any easements, rights of way, licenses, grants, building or use restrictions, exceptions, reservations, limitations or other impediments which adversely affect the value of the Geo’s interest therein or which interfere with or impair the present and continued use thereof in the usual and normal conduct of the business of Geo as contemplated to be conducted. Neither Geo nor, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, Geo or the operation or maintenance thereofPrincipal Geo Shareholders, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected party to have a Material Adverse Effect.
(d) Neither the Company nor Geothermal Agreements is in default under any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesGeothermal Agreements.
(f) Neither Except as disclosed on Schedule 3.24, no real property other than the Company nor any Geothermal Properties is or has been used in the business of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending orGeo. Except as disclosed on Schedule 3.24, to the Knowledge of Geo and the CompanyPrincipal Geo Shareholders, threatenedno Geothermal Property is located within a wetland or flood or waterfront erosion hazard area, and the buildings, structures and improvements situated thereon and appurtenances thereto and are in good condition (subject to normal wear and tear), and as such are adequate to conduct the business of Geo as presently conducted and as contemplated. There are Neither the whole nor any portion of any Geothermal Property has been condemned, requisitioned or otherwise taken by any public authority, and no pending ornotice of any such condemnation, requisition or taking has been received. No such condemnation, requisition or taking is, to the Knowledge of Geo or the CompanyPrincipal Geo Shareholders, threatened condemnation or eminent domain proceedings contemplated. Except as disclosed on Schedule 3.24, there are no public improvements pending or contemplated which may result in special assessments against or otherwise affect the Geothermal Properties.
(g) The Geothermal Properties are, to the Knowledge of Geo and the Principal Geo Shareholders, in compliance with, include all rights necessary to assure compliance with, and all buildings, structures, other improvements and fixtures on such Properties and the operations thereon conducted conform in all respects to, all applicable health, fire, water, environmental, safety, zoning, building, use or similar Rules. The zoning of each parcel of the Geothermal Properties permits the existing improvements and the continuation following consummation of the transactions contemplated hereby of the business of Geo as presently conducted thereon. Geo has all licenses, certificates of occupancy, permits and authorizations required to operate its businesses and utilize the Geothermal Properties. Geo has all easements and rights necessary or appropriate to conduct its operations, including easements for all utilities, services, roadway and other means of ingress and egress and each parcel of the Geothermal Properties has direct access to public roadways. The execution, delivery and performance of this First Amendment and the transactions contemplated hereby will not result in the imposition of any transfer or other Tax with respect to any material portion of any Company Propertythe Geothermal Properties.
Appears in 2 contracts
Sources: Merger Agreement (Us Geothermal Inc), Merger Agreement (Us Geothermal Inc)
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary ownsowns or has owned any real property.
(b) Section 3.17(b) of the Company Disclosure Schedule contains a true, holdscomplete and correct list of (i) the street address of each parcel of Leased Real Property, (ii) the identity of the lessor, lessee and current occupant (if different from lessee) of each such parcel of Leased Real Property, (iii) the term (referencing applicable renewal periods) and rental payment terms of the leases (and any subleases) pertaining to each such parcel of Leased Real Property and (iv) the current use of each such parcel of Leased Real Property. The Company has made available to Nu Skin true, complete and correct copies of each lease or sublease for each parcel of Leased Real Property listed in Section 3.17(b) of the Company Disclosure Schedule (including, without limitation, all amendments, consents for alterations and documents recording variations and evidence of commencement dates and expiration dates).
(c) Except as described in Section 3.17(c) of the Company Disclosure Schedule, to the knowledge of the Company, there is no material violation of any Law (including, without limitation, any building, planning or zoning Law) relating to any of the Leased Real Property. The Company has made available to Nu Skin all of the title insurance policies, title reports, surveys, certificates of occupancy, environmental reports and audits, appraisals, permits, other title documents and other documents in possession of the Company and relating to or otherwise affecting the Leased Real Property, the operations of the Company or any Subsidiary thereon or any other uses thereof. Either the Company or a Subsidiary, as the case may be, is obligated under in peaceful and undisturbed possession of each parcel of Leased Real Property and, to the knowledge of the Company, there are no contractual or legal restrictions that preclude or restrict the ability to use the premises for the purposes for which they are currently being used. All existing water, sewer, steam, gas, electricity, telephone and other utilities required for the construction, use, occupancy, operation and maintenance of the Leased Real Property are adequate for the conduct of the Business as it has been and currently is conducted. To the knowledge of the Company, there are no material latent defects or material adverse physical conditions affecting the Leased Real Property or any of the facilities, buildings, structures, erections, improvements, fixtures, fixed assets and personalty of a party permanent nature annexed, affixed or attached to, located on or forming part of the Leased Real Property. Except as set forth in Section 3.17(c) of the Company Disclosure Schedule, neither the Company nor any option, right of first refusal Subsidiary has leased or other contractual right to purchase, acquire, sell, assign or dispose of subleased any real estate parcel or any portion thereof of any parcel of Leased Real Property to any other person, nor has the Company or any Subsidiary assigned its interest thereinunder any lease or sublease listed in Section 3.17(b) of the Company Disclosure Schedule to any third party.
(d) With respect to each lease and sublease delivered to Nu Skin pursuant to Section 3.17(b):
(i) such lease or sublease, together with all ancillary documents delivered pursuant to Section 3.17(b), is legal, valid, binding and enforceable on the Company and, to the Company's knowledge, on the other party thereto and in full force and effect and represents the entire agreement between the respective landlord and tenant with respect to such property;
(ii) except as otherwise set forth in Section 3.17(d)(ii) of the Company Disclosure Schedule, such lease or sublease will not cease to be legal, valid, binding and enforceable and in full force and effect on terms identical to those currently in effect as a result of the consummation of the transactions contemplated by this Agreement, nor will the consummation of the transactions contemplated by this Agreement constitute a breach or default under such lease or sublease or otherwise give the landlord a right to terminate such lease or sublease;
(iii) except as set forth in Section 3.17(d)(iii) of the Company Disclosure Schedule, with respect to each such lease or sublease (A) neither the Company nor any Subsidiary has received any notice of termination or cancellation under such lease or sublease and no lessor has any right of termination or cancellation under such lease or sublease except in connection with the default of the Company or any Subsidiary thereunder, (B) neither the Company nor any Subsidiary has received any notice of a breach or default under such lease or sublease, which breach or default has not been cured, and (C) neither the Company nor any Subsidiary has granted to any other person any rights, adverse or otherwise, under such lease or sublease; and
(iv) none of the Company, any Subsidiary nor, to the knowledge of the Company, any other party to such lease or sublease, is in breach or default in any material respect, and no event has occurred that, with notice or lapse of time would constitute such a breach or default or permit termination, modification or acceleration under such lease or sublease.
(e) Subject to market limitations and To the other events affecting knowledge of the geographical area in which Company, there are no condemnation proceedings or eminent domain proceedings of any Company Property is located, kind pending or threatened against the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesLeased Real Property.
(f) Neither To the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge knowledge of the Company, threatened. There all of the Leased Real Property is occupied under a valid and current certificate of occupancy or similar permit, the transactions contemplated by this Agreement will not require the issuance of any new or amended certificate of occupancy and there are no pending orfacts that could reasonably be expected to prevent the Leased Real Property from being occupied by the Company or any Subsidiary, as the case may be, after the Effective Time in the same manner as occupied by the Company or such Subsidiary immediately prior to the Knowledge Effective Time.
(g) To the knowledge of the Company, threatened condemnation no improvements on the Leased Real Property and none of the current uses and conditions thereof violate any applicable deed restrictions or eminent domain proceedings other applicable covenants, restrictions, agreements, existing site plan approvals, zoning or subdivision regulations or urban redevelopment plans as modified by any duly issued variances, and no permits, licenses or certificates pertaining to the ownership or operation of all improvements on the Leased Real Property, other than those which are transferable with the Leased Real Property, are required by any Governmental Authority having jurisdiction over the Leased Real Property.
(h) Except as otherwise set forth in Section 3.17(h) of the Company Disclosure Schedule, there have been no improvements of a value in excess of US$10,000 in the aggregate made to or construction on any Leased Real Property within the applicable period for the filing of mechanics' liens.
(i) The rental set forth in each lease or sublease of the Leased Real Property is the actual rental being paid, and there are no separate agreements or understandings with respect to the same.
(j) Either the Company or a Subsidiary, as the case may be, has the full right to exercise any material portion renewal options contained in the leases and subleases pertaining to the Leased Real Property on the terms and conditions contained therein and upon due exercise would be entitled to enjoy the use of any Company Propertyeach Leased Real Property for the full term of such renewal options.
Appears in 2 contracts
Sources: Merger Agreement (Nu Skin Enterprises Inc), Merger Agreement (Nu Skin Enterprises Inc)
Real Property. (a) Section 4.11(a) of the Seller Disclosure Schedule 5.10(a) sets forth a true, complete list and correct listing of each parcel of Owned Real Property (including street address, legal description (if known), owner and the Company’s use thereof). With respect to each parcel of Owned Real Property:
(i) all real property and interests in real propertyexcept as set forth on Section 4.11(a)(i) of the Seller Disclosure Schedule, including improvements thereon and easements appurtenant thereto owned in fee by the Company has good, valid, insurable, marketable and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee simple title to all such Owned Property and (ii) a valid leasehold interest inReal Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, Encumbrances (except (A) those Liens set forth on Schedule 5.10(afor Permitted Encumbrances) and Buyer will receive such title and/or interest in the Owned Real Property at the Closing free and clear of all Encumbrances (B) other than Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, Encumbrances); and
(ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The neither Seller nor the Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications leased or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leasesor any portion thereof.
(b) Each Section 4.11(b) of the Seller Disclosure Schedule sets forth a true, complete and correct listing of all Leased Real Property Leases is (including street address, legal description (if known), lessor, rent and the Company’s use thereof), and a true, complete and correct list of all lease Contracts for such Leased Real Property. Seller has made available to Buyer true and complete copies of each such lease Contract, as amended through the date hereof. With respect to each such lease Contract:
(i) the Company has a valid leasehold interest to the leasehold estate in the Leased Real Property granted to the Company pursuant to each such lease Contract;
(ii) each such lease Contract is, and will continue to be, legal, valid, binding, enforceable and in full force and effect. Neither effect against the Company nor any Subsidiary is (and, to parties thereto in accordance with its terms following the Knowledge consummation of the Company, transactions contemplated hereby;
(iii) no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) event has occurred under any Real Property Lease or circumstance exists which, if not remediedwith the delivery of notice, would (whether with or without notice or the passage of time or both, would constitute a material breach or default under such lease Contract; and
(iv) result neither Seller nor the Company has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in any Leased Real Property held pursuant to such a defaultlease Contract.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation Except as set forth on Section 4.11(c) of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is locatedSeller Disclosure Schedule, the Company Real Property and all present uses and operations of the Improvements are sufficiently supplied Company Real Property comply in all material respects with utilities easements and other services as reasonably necessary for disposition agreements affecting the operation of such Company Real Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There there are no pending or, to the Knowledge of Seller, threatened condemnation, fire, health, safety, building, zoning or other land use regulatory proceedings, lawsuits or administrative actions relating to any portion of the Company Real Property or the current use, occupancy or value thereof, nor has the Company or Seller received written notice of any pending or threatened special assessment proceedings affecting any portion of the Company Real Property, in each case except to the extent that such actions or notice would result in a Material Adverse Effect on the Company.
(d) To the Knowledge of Seller, threatened condemnation no fact or eminent domain proceedings with respect condition exists which could result in the termination or material reduction of the current access from the Company Real Property to any material portion of any existing roads or to water, sewer or other utility services presently serving such Company Real Property.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Thoratec Corp), Stock Purchase Agreement (Thoratec Corp)
Real Property. (a) Schedule 5.10(aSection 4.10(a) of the Disclosure Schedules sets forth a complete list each parcel of (i) all real property owned by Seller and interests used in real propertyor necessary for the conduct of the Business as currently conducted (together with all buildings, including fixtures, structures and improvements situated thereon and easements all easements, rights-of-way and other rights and privileges appurtenant thereto owned in fee by the Company and the Subsidiaries (individuallythereto, an “Owned Property” and collectively, the “Owned PropertiesReal Property”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectivelyincluding with respect to each property, the “Real Property Leases” and, together with the Owned Properties, being referred address location and use. Seller has delivered to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name Buyer copies of the third party lessor or lessee deeds and other instruments (as recorded) by which Seller acquired such parcel of Owned Real Property, and copies of all title insurance policies, opinions, abstracts and surveys in the date possession of the lease or sublease and all amendments thereto)Seller with respect to such parcel. The Company and the Subsidiaries have With respect to each parcel of Owned Real Property:
(i) Seller has good and valid fee title to all Owned Property and (ii) a valid leasehold interest insimple title, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (A) those Liens set forth on Schedule 5.10(a) Permitted Encumbrances and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business those Encumbrances set forth on Section 4.10(a)(i) of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, Disclosure Schedules;
(ii) are free from material structural defectsexcept as set forth in Section 4.10(a)(ii) of the Disclosure Schedules or in any Permitted Encumbrance, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company Seller has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications not leased or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation portion thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.; and
(diii) Neither the Company nor any Subsidiary ownsto Seller’s Knowledge, holdsthere are no unrecorded outstanding options, is obligated under rights of first offer or is a party to, any option, right rights of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate purchase such Owned Real Property or any portion thereof or interest therein.
(eb) Subject to market limitations Section 4.10(b) of the Disclosure Schedules sets forth each parcel of real property leased by Seller and the other events affecting the geographical area used in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably or necessary for the operation conduct of such Company Property and Improvements the Business as currently operated conducted (together with all rights, title and interest of Seller in and to leasehold improvements relating thereto, including adequate watersecurity deposits, storm reserves or prepaid rents paid in connection therewith, collectively, the “Leased Real Property”), and sanitary sewera true and complete list of all leases, gassubleases, electriclicenses, cable concessions and telephone facilities.other agreements (whether written or oral), including all amendments, extensions renewals, guaranties and other agreements with respect thereto, pursuant to which Seller holds any Leased Real Property (collectively, the “Leases”). Seller has delivered to Buyer a true and complete copy of each Lease. With respect to each Lease:
(fi) Neither except as set forth in Section 4.10(b) of the Company Disclosure Schedules, such Lease is valid, binding, enforceable, and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, whether considered in a proceeding at law or in equity, and Seller enjoys peaceful and undisturbed possession of the Leased Real Property, subject to Permitted Encumbrances;
(ii) To Seller’s Knowledge, Seller is not in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such a breach or default, and Seller has paid all rent due and payable under such Lease;
(iii) Seller has not received nor given any of its Subsidiaries has received written currently-effective notice of any material special assessment relating default or event that with notice or lapse of time, or both, would constitute a default by Seller under any of the Leases and, to the Knowledge of Seller, no other party is in default thereof, and no party to any Company Lease has exercised any termination rights with respect thereto;
(iv) Except as set forth in Section 4.10(b)(iv) of the Disclosure Schedules, Seller has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof; and
(v) Seller has not pledged, mortgaged or otherwise granted an Encumbrance on its leasehold interest in any Leased Real Property.
(c) Seller holds sufficient title in all easements, licenses, franchises and other interests in real property other than the Owned Real Property and Leased Real Property that are used in or necessary for the conduct of the Business as currently conducted (together with all of Seller’s equipment and fixtures situated thereon and all other rights and privileges appurtenances thereto, collectively, the “Other Real Property Interests”). Section 4.10(c) of the Disclosure Schedules contains a list of all material Other Real Property Interests. With respect to all Other Real Property Interests:
(i) Except as provided in Section 4.10(c) of the Disclosure Schedules, the Other Real Property Interests are valid, binding, enforceable, and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, whether considered in a proceeding at law or in equity, and Seller enjoys peaceful and undisturbed possession of the rights or occupancy conferred by the Other Real Property Interests, subject to Permitted Encumbrances;
(ii) To Seller’s Knowledge, Seller is not in breach or default under any agreement evidencing or granting the Other Real Property Interests, and no event has occurred or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such special assessment is pending ora breach or default, and Seller has paid all consideration due and payable with respect to the Other Real Property Interests;
(iii) Seller has not received nor given any currently-effective notice of any default or event that with notice or lapse of time, or both, would constitute a default by Seller with respect to any of the Other Real Property Interests and, to the Knowledge of Seller, no other party is in default thereof; and
(iv) Seller has not subleased, sublicensed, assigned or otherwise granted to any Person the Company, threatened. There are no pending or, right to the Knowledge use or occupy any of the CompanyOther Real Property Interests or any portion thereof.
(d) Seller has not received any written notice of (i) violations of building codes or zoning ordinances or other governmental or regulatory Laws affecting the Real Property, (ii) existing, pending or threatened condemnation proceedings affecting the Real Property, or eminent domain proceedings (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which would reasonably be expected to adversely affect the ability to operate the Real Property as currently operated and in accordance with respect to Prudent Utility Practices. Neither the whole nor any material portion of any Company PropertyReal Property has been damaged or destroyed by fire or other casualty.
(e) The Real Property is sufficient for the continued conduct of the Business immediately after the Closing in substantially the same manner as conducted prior to the Closing and constitutes all of the real property necessary to conduct the Business as currently conducted.
Appears in 2 contracts
Sources: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Real Property. (ai) None of the Targets owns any parcels of Owned Real Property. The Targets have no outstanding options or obligations, rights of first offer or rights of first refusal to purchase any real property.
(ii) Section 4(n)(ii) of the Sellers Disclosure Schedule 5.10(a) sets forth the address of each parcel of Leased Real Property, and a true and complete list of all Leases for each such Leased Real Property (iincluding the date and name of the parties to such Lease document). Sellers have delivered to Buyer a true and complete copy of each such Lease document (including any amendments, renewals, extensions, guarantees and SNDAs related thereto), and in the case of any oral Lease, a written summary of the material terms of such Lease. Except as set forth in Section 4(n)(ii) all of the Sellers Disclosure Schedule, with respect to each of the Leases:
(A) each of the applicable Targets has the right to use the Leased Real Property for the full term of each such Lease (and any renewal option relating thereto);
(B) each of the applicable Targets has a valid leasehold interest in the real property subject to a Lease included in the Leased Real Property, free and interests clear of all Liens, other than Permitted Encumbrances;
(C) such Lease is legal, valid, binding, enforceable and in full force and effect;
(D) the transactions contemplated by this Agreement do not require the consent of any other party to such Lease (except for those Leases for which Lease Consents (as hereinafter defined) are obtained), will not result in a breach of or default under such Lease, and will not otherwise cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing;
(E) none of the applicable Target’s possession and quiet enjoyment of the Leased Real Property under such Lease has been disturbed and there are no disputes with respect to such Lease;
(F) neither the applicable Target, nor, to the Knowledge of Sellers, any other party to the Lease is in breach of or default under such Lease, and no event has occurred or circumstance exists that, with the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease;
(G) no security deposit or portion thereof deposited with respect to such Lease has been applied in respect of a breach of or default under such Lease that has not been redeposited in full;
(H) the applicable Target does not owe, or will not owe in the future, any brokerage commissions or finder’s fees with respect to such Lease;
(I) the other party to such Lease is not an Affiliate of, and otherwise does not have any economic interest in, any Target or Seller;
(J) the applicable Target has not subleased, licensed or otherwise granted any Person the right to use or occupy the Leased Real Property or any portion thereof; and
(K) the applicable Target has not collaterally assigned or granted any other Lien in such Lease or any interest therein.
(iii) The Leased Real Property identified in Section 4(n)(ii) of the Sellers Disclosure Schedule comprise all of the real propertyproperty used in the business of the Targets; and no Target is a party to any agreement or option to purchase any real property or interest therein.
(iv) The buildings, structures, fixtures, building systems and equipment, and all components thereof, included in the Leased Real Property (the “Improvements”) are, taken as a whole, in good condition and repair and sufficient for the operation of the Business. There are no facts or conditions affecting any of the Improvements that would, individually or in the aggregate, interfere in any material respect with the use or occupancy of the Improvements in the operation of the Business as currently conducted thereon.
(v) To the Knowledge of Sellers, the Leased Real Property is in material compliance with all applicable building, zoning, subdivision, health and safety and other land use Laws, including improvements thereon The Americans with Disabilities Act of 1990, as amended, and easements appurtenant thereto owned in fee by all insurance requirements affecting the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Leased Real Property Lease” and (collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company PropertiesLaws”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms No Target has received any notice of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear violation of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultLaw.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 2 contracts
Sources: Stock Purchase Agreement (HC2 Holdings, Inc.), Stock Purchase Agreement (HC2 Holdings, Inc.)
Real Property. (a) Schedule 5.10(a3.11(a) sets forth a complete list the addresses and uses of (i) all real property that Nah-Nah or any Subsidiary owns, leases or subleases (the "Nah-Nah Real Property"), and interests any Lien on any such owned real property or on Nah-Nah's or a Subsidiary's leasehold interest therein, specifying in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectivelycase of each such Nah-Nah Lease or sublease, the “Owned Properties”name of the lessor or sublessor, as the case may be, the lease term and rent obligations of the lessee thereunder. Except as set forth on Schedule 3.11(a), (ii) Nah-Nah or its Subsidiary, as the case may be, has a valid leasehold interest in all real property and interests in real property leased by either of them and good and marketable title to the Company or Improvements on the Subsidiaries (individually, a “Nah-Nah Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” has good and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee marketable title to all Owned Property and (ii) a valid leasehold interest into, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, owns all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.real
(b) Each of Schedule 3.11(b) sets forth with respect to the Nah-Nah Real Property Leases is a list of all title insurance policies, appraisal reports, surveys and engineering and environmental reports held or controlled by Nah-Nah, copies of which have been provided to He-Ro. All Improvements located on the Nah-Nah Real Property are in full force good operating condition (subject to normal wear and effecttear) with no structural or other defects known to Nah-Nah that could interfere in any material respect with the operation of Nah-Nah's business, are located within applicable boundary lines and are suitable for the purposes for which they are currently used. Neither the Company Nah-Nah nor any Subsidiary is (andin violation in any material respect of any building, to the Knowledge zoning, anti-pollution, health, occupational safety or other Law, Order, Permit or non-transferable license in respect of the CompanyNah-Nah Real Property. Except as disclosed on Schedule 3.11(b), no person, other Person is) in default under than Nah-Nah or a Subsidiary, as the case may be, has any Real Property Lease, and no breach by the Company (or, right to the Knowledge occupy or possess any of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultreal property.
(c) The Company Except as set forth in Schedule 3.11(c):
(i) all work, repairs and improvements (including capital improvements) required to have been done on or prior to the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for Closing under the current use and operation of each Company PropertyNah-Nah Leases by Nah-Nah has been completed in accordance therewith, and Nah-Nah has waived any agreement, easement and all rights to terminate the Nah-Nah Leases with respect thereto;
(ii) the Nah-Nah Leases are superior to any and all mortgages now or other right from any other Person, necessary hereafter constituting a Lien on the real property and/or the interest of either party to permit the lawful use and operation each of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.Nah-Nah Leases therein;
(diii) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right there are no rights of first refusal or other contractual right refusal, options to purchase, acquire"buy-out" rights, sellor other termination rights which have been exercised, assign or dispose are currently exercisable, by either party to each of any real estate or any portion thereof or interest therein.the Nah-Nah Leases; and
(eiv) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities rent and other services as reasonably necessary for amounts payable by Nah-Nah under the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither Nah-Nah Leases have been paid to the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereofdate hereof, and no such special assessment is pending or, shall be paid to the Knowledge date of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company PropertyClosing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Han Hong J), Stock Purchase Agreement (He Ro Group LTD)
Real Property. (a) Schedule 5.10(a2.10(a) of the Disclosure Schedule sets forth a true and complete list of all real property owned by Seller that is used in or necessary for the operation of the Business as currently conducted (the “Owned Real Property”), including with respect to each property, the address, location and use. With respect to each parcel of Real Property: (i) all real property the Seller has good and interests in real property, including improvements thereon and easements appurtenant thereto owned in valid fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee simple title to all each parcel of Owned Property and (ii) a valid leasehold interest inReal Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens other than Permitted Liens; (ii) the Seller is in possession of each parcel of Owned Real Property and there are no leases, licenses, occupancy agreements or any nature whatsoeverother similar arrangement pursuant to which any third party is granted the right to use any Owned Real Property, except (A) those Liens other than as set forth on Schedule 5.10(a2.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and Disclosure Schedule; (iii) there are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies no outstanding options or rights of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications first offer or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose in favor of any real estate third party to purchase any Owned Real Property or any portion thereof or interest therein.
; and (eiv) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There there are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any Owned Real Property.
(b) Schedule 2.10(b) of the Disclosure Schedule sets forth each interest in real property leased by Seller (together with all rights, title and interest of Seller in and to leasehold improvements relating thereto, including, but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “Leased Real Property”, collectively with the Owned Real Property, the “Real Property”) and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether written or oral), including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, or any other arrangement under which such property is leased (the “Real Estate Leases”). Seller has delivered to Purchaser a true and complete copy of each Real Estate Lease. Each of the Real Estate Leases is valid, binding, enforceable and in full force and effect, and the Seller enjoys peaceful, quiet and undisturbed possession of the Leased Real Property. Seller is not in breach or default under any of the Real Estate Leases, and no event has occurred, or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such a breach or default, and Seller, as applicable, has paid all rent due and payable under each of the Real Estate Leases. The Seller has not received nor given any notice of any default or event that with notice or lapse of time, or both, would constitute a default by Seller under any of the Real Estate Leases and, to the knowledge of the Seller, no other party is in default thereof, and no party to any of the Real Estate Leases has exercised any termination rights with respect thereto. Seller has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof. Seller has not pledged, mortgaged or otherwise granted any Lien on its leasehold interest in any Leased Real Property. The Leased Real Property is adequate for the needs of the Business as currently conducted. None of the buildings, plant or structures on any Leased Real Property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are, individually and in the aggregate, immaterial. There is no pending or, to the knowledge of the Seller, threatened condemnation, eminent domain or similar proceeding with respect to any Leased Real Property.
(c) The Seller has not received any written notice of (i) violations of building codes and/or zoning ordinances or other governmental or regulatory laws affecting the Real Property, (ii) existing, pending or threatened condemnation proceedings affecting the Real Property, or (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which could reasonably be expected to adversely affect the ability to operate the Real Property as currently operated and as required to satisfy the needs of the Business. Neither the whole nor any material portion of any Company PropertyReal Property has been damaged or destroyed by fire or other casualty which has not been fully restored.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOSTON OMAHA Corp), Asset Purchase Agreement (BOSTON OMAHA Corp)
Real Property. 4.7.1. All of the Assets consisting of Real Property interests are disclosed on SCHEDULE 4.7. To the extent that SCHEDULE 4.7 fails to disclose the specific Seller holding each interest listed thereon, Seller will provide such information to Buyer within 30 days after the date of this Agreement. Except as otherwise disclosed on SCHEDULE 4.7, Seller is the sole owner (aboth legal and equitable) Schedule 5.10(a) sets forth a complete list and holds, or at the time of (i) the Closing Company will hold, good and marketable fee simple absolute title to each parcel of Real Property disclosed as being owned by Seller on SCHEDULE 4.7 or is otherwise owned by Seller and all real property buildings, structures and interests in real property, including improvements thereon and easements appurtenant thereto has the valid and enforceable right to use and possess such owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leasesimprovements, in each case free and clear of all Liens of any nature whatsoeverEncumbrances except for Permitted Encumbrances. Seller has, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The at the Closing Company Properties constitute all will have, valid and enforceable leasehold interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leasesdisclosed as being leased by Seller on SCHEDULE 4.7 or is otherwise leased by Seller and, together with respect to other Real Property not owned or leased by Seller, Seller has, and at the Closing Company will have, the valid and enforceable right to use all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject other Real Property pursuant to any leases, rights, options, subleasesthe easements, licenses, occupancy rights-of-way or other rights disclosed on SCHEDULE 4.7 or is otherwise used by Seller, and all improvements thereon owned by Seller and included in the Assets, in each case free and clear of all Encumbrances except for Permitted Encumbrances. With respect to leasehold interests and other material interests in Real Property, Seller is not in breach or default of any terms or conditions of any written instrument relating thereto and, to Seller's Knowledge, no other party thereto is in material breach or default of any terms or conditions of any such written instrument.
4.7.2. There are no leases or other agreements, concessions oral or other agreements or arrangements, written or oralwritten, granting to any Person other than Seller the right to purchase, occupy or the right to use or occupy any such Company Real Property, except the Real Property Leasesas disclosed on SCHEDULE 4.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 2 contracts
Sources: Reorganization Agreement (Charter Communications Inc /Mo/), Reorganization Agreement (Charter Communications Inc /Mo/)
Real Property. (a) Schedule 5.10(a2.2(a) sets forth a complete list of (i) lists and describes all real property and interests other than the Excluded Assets that LLC or any other Person owns that is used in real property, including improvements thereon and easements appurtenant thereto owned in fee by connection with the Company and the Subsidiaries Business (individually, an “Owned Property” and collectively, the “Owned PropertiesReal Property”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred . With respect to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including parcel of owned real property, except as disclosed on the name of the third party lessor Title Report or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have Survey:
(i) the LLC has good fee and marketable title to all Owned Property and (ii) a valid leasehold interest inthe LLC Assets, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrance, easement, covenant, or other restriction, except as disclosed on the Title Report;
(Aii) those Liens set forth there are no pending or, to the knowledge of LLC or Company, any threatened condemnation proceedings, lawsuits, or administrative actions relating to the LLC Assets or other matters affecting materially and adversely the current use, occupancy, or value thereof;
(iii) to LLC’s knowledge, the legal description for the LLC Assets contained in Schedule 2.2(a) describes such parcel fully and adequately, the buildings and except as disclosed in Schedule 3.22(a)(iii) to LLC’s knowledge, improvements are located within the boundary lines of the LLC Assets, are not in violation of applicable setback requirements, zoning laws, and ordinances (and none of the properties or buildings or improvements thereon are subject to “permitted non-conforming use” or “permitted non-conforming structure” classifications), and to LLC’s knowledge, do not encroach on Schedule 5.10(aany easement which may burden the land, and the land does not serve any adjoining property for any purpose inconsistent with the use of the land, and the LLC Assets are not located within any flood plain or subject to any similar type restriction for which any permits or licenses necessary to the use thereof have not been obtained;
(iv) to Company and LLC’s knowledge, all Facilities have received all approvals of governmental authorities (Bincluding licenses and permits) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use required in connection with the business of the Company ownership or operation thereof and the Subsidiaries have been operated and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildingsmaintained in accordance with applicable laws, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defectsrules, and regulations;
(iiiv) there are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any no leases, rights, options, subleases, licenses, occupancy agreementsconcessions, concessions or other agreements or arrangementsagreements, written or oral, granting to any Person party or parties the right to purchase, or the right to of use or occupy occupancy of any such Company Property, except portion of the Real Property Leases.LLC Assets other than the Lease;
(bvi) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, there are no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with outstanding options or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right rights of first refusal or other contractual right to purchasepurchase the LLC Assets, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.;
(evii) Subject to market limitations and there are no parties (other than Company) in possession of the other events affecting LLC Assets;
(viii) all Facilities located on the geographical area in which any Company Property is located, the Company Property and the Improvements LLC Assets are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated facilities, including adequate gas, electricity, water, storm and telephone, sanitary sewer, gasand storm sewer, electricall of which services are adequate and to LLC’s and Company’s knowledge, cable in accordance with all applicable Laws, and telephone facilitiesare provided via public roads or via permanent, irrevocable, appurtenant easements benefiting the parcel of real property; and
(ix) the LLC Assets abut on and have direct vehicular access to a public road, or have access to a public road via a permanent, irrevocable, appurtenant easement benefiting the parcel of real property, and access to each property is provided by paved public right-of-way with adequate curb cuts available.
(fb) Neither Other than the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereofLease, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There there are no pending orleases of real property to or from Company.
(c) The LLC Assets are not specially assessed for property taxes (e.g. farm, to forest, or other) in a way which may result in levy of additional taxes in the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Propertyfuture.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Phibro Animal Health Corp)
Real Property. (a) Schedule 5.10(a5.9(a) sets lists all Real Property owned by Seller (the “Owned Real Property”). Except as set forth on Schedule 5.9(a):
(i) Seller has good, marketable, and indefeasible fee simple title to all of the Owned Real Property, free and clear of all Encumbrances other than Permitted Encumbrances;
(ii) There are no leases or other use or occupancy agreements granting to any Person a complete list right to occupy or otherwise use any part of the Owned Real Property;
(iii) There are no outstanding options, rights of first offer, rights of first refusal or other agreements granting to any Person a right to purchase the Owned Real Property or any part thereof or interest therein;
(iv) There are no arrangements or commitments of any kind pursuant to which the Owned Real Property (or any part thereof or interest therein) will become subject to any Encumbrances other than Permitted Encumbrances;
(v) There are no Persons other than Seller in possession of any Owned Real Property or any part of any Owned Real Property;
(vi) Seller has received no notice in writing or by publication of any appropriation, condemnation or like proceeding or of any violation of any applicable zoning-related Legal Requirement relating to or affecting any of the Owned Real Property, and to the Knowledge of Seller, there is no such violations.
(b) Schedule 5.9(b) lists (i) all Purchased Assets consisting of real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all leases pursuant to which any real property and interests in real property is leased by the Company or the Subsidiaries Seller (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest inall Purchased Assets consisting of other interests in real property that are not Owned Real Property, and enjoys peaceful that have been memorialized in writing, including easements, Licenses, rights to access, rights-of-way and undisturbed possession (consistent with historical use and pursuant to other real property interests that are used in the terms operation of the applicable lease) ofSystems (collectively, all Company Properties subject to the “Easements”). Each Real Property LeasesLease and Easement is legal, valid, binding and enforceable against Seller and, to Seller’s Knowledge, against each other party thereto in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens accordance with its terms. Except as set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used5.9(b), occupied Seller has not received any notice of any violation or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchasebreach of, or the right to use or occupy any such Company Propertydefault under, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, Lease or Easement and there are presently no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred uncured breaches or defaults under any Real Property Lease whichor Easement. To Seller’s Knowledge, if not remediedno event has occurred that, would (whether with or without notice or the passage of time or both) result in such , would constitute a defaultviolation or breach of, or default under, any Real Property Lease or Easement by Seller or any other party thereto.
(c) The Company To Seller’s Knowledge, each parcel of Owned Real Property and the Subsidiaries have all certificates of occupancy real property covered by a Real Property Lease (“Leased Real Property”), including any improvements constructed thereon and material Permits of any Governmental Body necessary or useful for the current use thereof, conform in all material respects to all applicable Legal Requirements and operation any restrictive covenants or other Encumbrances affecting all or any part of each Company such Real Property. There are no material physical, structural, or mechanical defects on, and all of the fixtures and improvements, including leasehold improvements, to the Owned Real Property and Leased Real Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Owned Real Property and each such PermitLeased Real Property are in good condition and repair, agreementexcept for ordinary wear and tear and routine repairs, easement or other right is in full force and effectare operating, and there are sufficient to enable the Owned Real Property and Leased Real Property to be used in all material respects in the manner in which it is no pending or, currently being used and operated by Seller. Each parcel of Owned Real Property and to the Knowledge of the CompanySeller, threatened proceeding which could result in the material each parcel of Leased Real Property has access, ingress and adverse modification or cancellation thereof. No default or violationegress, or event that with the lapse of time or giving of notice or both would become a default or violationvalid, has occurred in the due observance of any Permit. No Improvementperpetual easement to a public right-of-way providing access, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effectingress and egress adequate for their current use.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Northland Cable Properties Eight Limited Partnership)
Real Property. (a) Schedule 5.10(a(i) sets forth The Seller has previously delivered to the Purchaser a schedule which contains (A) a true, current and complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, (B) a true and accurate description of (1) the “street address for each parcel of Owned Real Property Leases” andProperty, together with the Owned Properties, being referred an indication as to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of whether each such parcel is active or inactive and (2) the net book value as of March 31, 2009 for each parcel of Owned Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property Property; and (ii) the Company or a valid leasehold interest in, Subsidiary has good and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant marketable title in fee simple to the terms each parcel of the applicable lease) of, all Company Properties subject to Owned Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverliens and Encumbrances, except Permitted Encumbrances. There are no outstanding options, rights of first offer or rights of first refusal to purchase any Owned Real Property or any portion thereof. The Seller has made a good faith effort to make available to the Purchaser copies of all policies of title insurance currently existing in favor of the Company and/or a Subsidiary with respect to Owned Real Property.
(b) (i) The Seller has previously delivered to the Purchaser a schedule that contains a true, current and complete list of (1) the street address of each parcel of Leased Real Property, (2) the identity of the lessee of each such parcel of Leased Real Property, and (3) the current base rent payments due under such leases; (ii) the Company or a Subsidiary has, and at Closing will have, good and valid leasehold interests in each of the Leased Real Properties, and such leasehold interests are free and clear of all Encumbrances, except Permitted Encumbrances; and (v) (A) those Liens set forth on Schedule 5.10(a) the Seller has delivered to the Purchaser, true and complete copies of the documentation relating to each Continuing Lease and (B) Permitted Exceptions. The there has not been any sublease or assignment entered into by the Company Properties constitute all interests or any Subsidiary in real property currently used, occupied or currently held for use in connection with the business respect of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of Continuing Leases.
(i) Neither the Company, (i) in good operating conditionnor any Subsidiary, (ii) are free from material structural defectshas leased, and (iii) are suitablesubleased, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications licensed or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to otherwise granted any Person the right to purchase, or the right to use or occupy all or any such Company Property, except the Real Property Leases.
(b) Each portion of the Real Property and other than the Company and/or a Subsidiary there are no parties in possession of any portion of the Real Property, whether as lessees, tenants at will, trespassers or otherwise; (ii) neither the Company, nor any Subsidiary, has received notice of any pending condemnation or similar proceeding affecting any portion of the Real Property and, to the Seller’s Knowledge, no such action is presently contemplated or threatened; and (iii) to the Seller’s Knowledge, there is no law, ordinance, order, regulation or requirement now in existence which would require (in the absence of any applicable grandfathering and waivers) any material expenditure to remediate, remedy, remove, modify or improve any portion of the Real Property in order to bring it into material compliance therewith.
(d) All Continuing Leases is are valid and in full force and effect except to the extent they have previously expired in accordance with their terms or where the failure to be in full force and effect, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the CompanySubsidiaries has violated any provision of, no other Person is) in default under or committed or failed to perform any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease act which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Propertynotice, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become constitute a default under the provisions of, any Continuing Lease, except in each case for those violations and defaults which, individually or violation, has occurred in the due observance of any Permit. No Improvementaggregate, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would not reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 2 contracts
Sources: Restructuring and Investment Agreement (Stock Building Supply Holdings, Inc.), Restructuring and Investment Agreement (Stock Building Supply Holdings, Inc.)
Real Property. (a) Schedule 5.10(a) sets forth a complete list 5.5.1 All the Assets consisting of (i) all real property Real Property interests are described on SCHEDULE 1.28. Except as otherwise disclosed on SCHEDULE 1.28, Seller holds indefeasible fee simple title to the Real Property shown as being owned by Seller on SCHEDULE 1.28 and the valid and enforceable right to use and possess such Real Property, subject only to the Permitted Encumbrances. Seller has valid leasehold interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject leases described on SCHEDULE 1.28 with respect to other Real Property Leasesnot owned or leased by Seller, in each case free Seller has the valid and clear of enforceable right to use all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, other Real Property pursuant to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleaseseasements, licenses, occupancy agreements, concessions rights-of-way or other agreements or arrangementsrights described on SCHEDULE 1.28, written or oral, granting subject only to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Permitted Encumbrances. The Real Property Leasesincludes all the real property interests necessary to permit Buyer to conduct the Business substantially as it is being conducted on this date in compliance with all Legal Requirements.
(b) Each 5.5.2 The documents delivered by Seller to Buyer as evidence of the each lease of Real Property Leases is constitute the entire agreement with the landlord in question and are valid and in full force and effect. Neither There are no leases or other agreements, oral or written, granting to any Person other than Seller the Company nor right to occupy or use any Subsidiary is (andReal Property, to the Knowledge of the Companyexcept Permitted Encumbrances or as described on SCHEDULE 1.28. All leases, no easements, rights-of-way and other Person is) in default under rights appurtenant to, or which are necessary for Seller's current use of, any Real Property Lease, are valid and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification Seller has not given or cancellation thereof. No default or violation, or event that with the lapse of time or giving of received any notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion the termination or breach of any Company rights or obligations under such agreements. Each parcel of Real Property, any improvements constructed thereon and their current use conform to (a) all applicable Legal Requirements, including zoning requirements and the Americans with Disabilities Act, and (b) all restrictive covenants, if any, or other Encumbrances affecting all or part of such parcel.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Friendship Cable of Arkansas Inc), Asset Purchase Agreement (Classic Communications Inc)
Real Property. (a) Schedule 5.10(aSection 3.15(a) sets forth a complete list of the Disclosure Schedules lists: (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “street address of each parcel of Owned Real Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “date on which each parcel of Owned Real Property Lease” and collectivelywas acquired, (iii) the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description current owner of each such parcel of Owned Real Property, (iv) information relating to the recordation of the deed pursuant to which each such parcel of Owned Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property was acquired and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (iiv) the current use of each such parcel of Owned Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each Section 3.15(b) of the Disclosure Schedules lists: (i) the street address of each parcel of Leased Real Property, (ii) the identity of the lessor, lessee and current occupant (if different from lessee) of each such parcel of Leased Real Property, (iii) the term (referencing applicable renewal periods) and fixed or basic rental payment terms of the leases (and any subleases) pertaining to each such parcel of Leased Real Property Leases is in full force and effect. Neither (iv) the Company nor any Subsidiary is (and, to the Knowledge current use of the Company, no other Person is) in default under any each such parcel of Leased Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultProperty.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation Except as described in Section 3.15(c) of the Improvements and the Company Property or any drivewaysDisclosure Schedules, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, violation of any Law relating to the Knowledge any of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event Owned Real Property that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect. MS has made available to the Sellers (to the extent such copies are in MS' physical possession) true and complete copies of each deed for each parcel of Owned Real Property and, to the extent available, for each parcel of Leased Real Property and all the title insurance policies, title reports, surveys, certificates of occupancy, environmental reports and audits, appraisals and Permits relating to the Real Property, the operations of MS or any MS Subsidiary thereon or any other uses thereof. Subject to all applicable leases, either MS or a MS Subsidiary, as the case may be, is in peaceful and undisturbed possession of each parcel of Real Property and neither MS nor any MS Subsidiary has executed and delivered any contractual restrictions that preclude or materially restrict the ability to use the premises for the purposes for which they are currently being used. Except as set forth in Section 3.15(c) of the Disclosure Schedules, neither MS nor any MS Subsidiary has leased or subleased any parcel or any portion of any parcel of Real Property to any other Person, nor has MS or any MS Subsidiary assigned its interest under any lease or sublease listed in Section 3.15(b) of the Disclosure Schedules to any third party.
(d) Neither MS has, or has caused to be, delivered to the Company Sellers true and complete copies of all leases and subleases listed in Section 3.15(b) of the Disclosure Schedules. With respect to each of such leases and subleases:
(i) such lease or sublease represents the entire agreement between the respective landlord and tenant with respect to such property; and
(ii) except as otherwise disclosed in Section 3.15(b) of the Disclosure Schedules, with respect to each such lease or sublease: (A) neither MS nor any MS Subsidiary ownshas received any notice of cancellation or termination under such lease or sublease and (B) neither MS nor any MS Subsidiary has received any notice of a breach or default under such lease or sublease, holds, is obligated under which breach or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest thereindefault has not been cured.
(e) Subject There are no condemnation proceedings or eminent domain proceedings of any kind pending or, to market limitations and the other events affecting actual knowledge of MS (without investigation), threatened against the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesOwned Real Property.
(f) Neither To the Company nor any best knowledge of its Subsidiaries has received written notice MS, all improvements on the Real Property constructed by or on behalf of any material special assessment relating to any Company Property MS or any portion thereofMS Subsidiary were constructed in material compliance with all applicable Laws (including, and no but not limited to, any building, planning or zoning Laws) affecting such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Real Property.
Appears in 2 contracts
Sources: Stock Purchase Agreement (MS Acquisition), Stock Purchase Agreement (Aetna Industries Inc)
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all real property TFSB is the sole and interests in real propertyexclusive holder of the land use rights approval certificate No. 1998 (032), including improvements thereon and easements appurtenant thereto owned in fee issued by the Company Changping Municipal Land and Natural Resources Administration Bureau in 2001 with respect to the Subsidiaries Site (individually, an “Owned Property” the "Site Land Use Rights Certificate") and collectively, listed on Section 3(l)(i) of the “Owned Properties”), Disclosure Schedule.
(ii) all Except as noted on Section 3(l)(ii) of the Disclosure Schedule, with respect to each such parcel of real property and interests in real property leased under lease by the Company or the Subsidiaries TFSB:
(individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”A) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither effect and TFSB has a valid leasehold interest in the Company nor any Subsidiary property subject to such lease;
(B) TFSB is (and, to the Knowledge of the Company, no other Person is) not in breach or default under any Real Property Leasesuch lease or sublease, and no event has occurred that, with notice or lapse of time, would constitute a breach or default by the Company TFSB or permit termination, modification, or acceleration thereunder;
(or, to the C) TFS has no Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with breach or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had party to any such lease or would reasonably be expected to have a Material Adverse Effect.sublease;
(dD) Neither no party to the Company nor lease or sublease has notified TFSB, TFSI and TFS that it has repudiated any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.provision thereof;
(eE) Subject to market limitations TFSB has not assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in the leasehold or subleasehold;
(F) all facilities leased or subleased thereunder have received all approvals of governmental authorities (including licenses and permits) required in connection with the other events affecting the geographical area operation thereof by TFSB and have been operated and maintained by TFSB in which any Company Property is locatedaccordance with applicable laws, the Company Property rules and the Improvements regulations;
(G) all facilities leased or subleased thereunder are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone said facilities.; and
(fH) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating lease or sublease will continue to any Company Property or any portion thereofbe legal, valid, binding, enforceable and no such special assessment is pending or, to in full force and effect on identical terms following the Knowledge consummation of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Propertytransaction contemplated in this Agreement.
Appears in 2 contracts
Sources: Purchase Agreement (International Displayworks, Inc), Purchase Agreement (Three Five Systems Inc)
Real Property. (a) Section 3.18(a) of Partners Disclosure Schedule 5.10(a) sets forth forth, as of the date hereof, a true, correct and complete list of (i) all the real property owned by Partners and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the its Subsidiaries (individually, an “Owned Property” and collectively, the “Partners Owned Properties”), (ii) all real property . Partners has good and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee marketable title to all Partners Owned Property (except properties sold or otherwise disposed of in accordance with Sections 5.1 and (ii) a valid leasehold interest in5.2, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever(except statutory Liens securing payments not yet due, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in for real property currently usedTaxes not yet due and payable), occupied easements, rights of way, and other similar encumbrances that do not materially affect the value or currently held for use in connection with the business of the Company properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties and such imperfections or irregularities of title or Liens as do not materially affect the Subsidiaries and which are necessary for the continued operation value or use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties (collectively, “Permitted Encumbrances”).
(b) Section 3.18(b) of Partners Disclosure Schedule sets forth as of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildingsdate hereof, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser a true, correct and complete copies list of all the real estate leases, subleases, licenses and occupancy agreements (together with any amendments, modifications, supplements, replacements, restatements and guarantees thereof or thereto, including any oral amendments) to which Partners or any of its Subsidiaries is a party with respect to all real property leased, subleased, licensed or otherwise used or occupied by Partners or any of its Subsidiaries on the date hereof (collectively, the “Partners Leased Real Property”), whether in Partners’ or any of its Subsidiaries’ capacity as lessee, sublessee, licensee, lessor, sublessor or licensor, as the case may be (the “Partners Real Estate Leases”). Partners or its Subsidiaries has valid leasehold interests in the Partners Leased Real Property, free and clear of all Liens, except Permitted Encumbrances. Each Partners Real Estate Lease is (i) all deedsvalid, title reports binding and surveys for in full force and effect without material default thereunder by the Owned Properties lessee or, to the knowledge of Partners, the lessor, and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, enforceable against Partners or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any applicable Subsidiary is (and, to the Knowledge knowledge of Partners, the Companycounterparty thereto (except as may be limited by the Enforceability Exceptions). Partners and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it under each Partners Real Estate Lease, no other Person is) and to the knowledge of Partners, each counterparty to each Partners Real Estate Lease has in default all material respects performed all obligations required to be performed by it under any such Partners Real Property Estate Lease, and no breach by the Company (event or condition exists which constitutes or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without after notice or the passage lapse of time or both) result in such , will constitute, a defaultmaterial default on the part of Partners or any of its Subsidiaries under any Partners Real Estate Lease. Partners has made available to LINK a true, correct and complete copy of each written Partners Real Estate Lease and each written amendment to any Partners Real Estate Lease.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company Partners nor any of its Subsidiaries has received written notice of leased, subleased, licensed or otherwise granted any material special assessment relating person a right to any Company Property use or occupy all or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatenedany Partners Owned Property or Partners Leased Real Property. There are no pending or, to the Knowledge knowledge of the CompanyPartners, threatened condemnation proceedings against the Partners Owned Property or eminent domain proceedings with respect to any material portion of any Company Partners Leased Real Property.
Appears in 2 contracts
Sources: Merger Agreement (LINKBANCORP, Inc.), Merger Agreement (Partners Bancorp)
Real Property. (a) Schedule 5.10(aSection 5.25(a) sets forth a complete list of the MAF Disclosure Letter identifies (i) all each parcel of real property and interests in real property, including any improvements thereon and easements appurtenant thereto on a Leased Premises owned in fee by the Company and the Subsidiaries MAF or a MAF Subsidiary (individually, each an “Owned Real Property”) and (ii) each real property premises leased by MAF or a MAF Subsidiary, including any ground lease (each a “Leased Premises” and together with Owned Real Properties, the “Real Estate”), and lists the corresponding lease for each Leased Premises to which MAF or the applicable MAF Subsidiary is a party (collectively, the “Owned PropertiesLease Agreements”).
(b) MAF or the MAF Subsidiary, (ii) as applicable, has good and marketable, indefeasible, fee simple title to each Owned Real Property, free and clear of any and all real property encumbrances other than Permitted Real Property Encumbrances. MAF and each MAF Subsidiary, if applicable, have valid leasehold interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name are in possession of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest inLeased Premises, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case case, such leasehold interests are free and clear of all Liens of any nature whatsoeverLiens, except (A) those Liens set forth on Schedule 5.10(a) and (B) other than Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultEncumbrances.
(c) The Company To the Knowledge of MAF, the building, structures and improvements located on, fixtures contained in, and appurtenances attached to, each Real Estate conform and are in compliance with all applicable Laws, including the Subsidiaries have Americans With Disabilities Act. MAF has not received any notice from a lessor, any Governmental Authority or any other Person requiring any work or repairs to Real Estate that the tenant has not completed in compliance with such notice. To the Knowledge of MAF, in their present state of repair all certificates structural and mechanical components of occupancy the facilities serving the Real Estate (including the roof, all heating, ventilation, plumbing and material Permits electrical systems used in the operation thereof) are adequate for MAF’s or the applicable MAF Subsidiary’s purposes.
(d) Neither MAF nor any MAF Subsidiary has entered into any sublease, license or assignment of a Leased Premises and, other than MAF or an applicable MAF Subsidiary under the applicable Lease Agreement, there are no Persons physically occupying any portion of a Leased Premises.
(e) No brokerage fees, commissions or any similar payments are owed or payable by MAF or any MAF Subsidiary to any third party in connection with the existence or execution of a Lease Agreement, or in connection with any renewal, expansion or extension of any Governmental Body necessary Lease Agreement.
(f) MAF has delivered or useful for the current use made available to National City a correct and operation complete copy of each Company PropertyLease Agreement, together with all amendments and supplements thereto. Neither MAF nor any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right MAF Subsidiary is in full force and effectdefault under any Lease Agreement, which default is reasonably likely to have, either individually or in the aggregate, a Material Adverse Effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or has not occurred any event that with the lapse of time or the giving of notice or both would become constitute such a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effectdefault.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 2 contracts
Sources: Merger Agreement (Maf Bancorp Inc), Merger Agreement (National City Corp)
Real Property. (a) Schedule 5.10(aSection 4.9(a) of the Disclosure Letter sets forth the owner, address and description of each real property owned by a complete list Banner Company or for which it holds in The Netherlands a right of superficies (opstalrecht) (the “Owned Real Property”). Except as set forth on Section 4.9(a) of the Disclosure Letter, with respect to each Owned Real Property:
(i) all real property the Banner Companies have good and interests in real propertymarketable fee simple title, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary only for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defectsPermitted Encumbrances, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company Seller has delivered made available to Purchaser Buyer true, correct and complete copies of (i) each deed for each parcel of Owned Real Property and all deeds, title reports insurance policies and surveys for issued to or prepared at the request of a Banner Company that relate to the Owned Properties and Real Property;
(ii) the Real Property Leases, together with all amendments, modifications no Banner Company has leased or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation portion thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.;
(diii) Neither the Company nor any Subsidiary ownsthere are no outstanding options, holds, is obligated under rights of first offer or is a party to, any option, right rights of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate purchase such Owned Real Property or any portion thereof or interest therein.;
(eiv) Subject to market limitations Seller’s Knowledge, all structural elements of the buildings, structures and improvements on the other events affecting the geographical area Owned Real Property are in which any Company Property is locatedworking condition, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary sufficient for the current operation of such Company the Owned Real Property and Improvements as currently operated including adequate waterand, storm and sanitary sewerto Seller’s Knowledge, gas, electric, cable and telephone facilities.
(f) Neither there are no proceedings instituted or threatened by any Governmental Authority to condemn or acquire the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Owned Real Property or any portion thereof, by eminent domain;
(v) there are no outstanding material violations of any covenant, condition or restriction affecting such Owned Real Property; and
(vi) there exists no default under any mortgage, nor any event which, with notice or lapse of time or both, would constitute a monetary or material non-monetary default thereunder by any party thereto. Seller has delivered or made available to Buyer a true and no complete copy of all mortgage loan agreements and any modifications or amendments of such special assessment is pending ormortgage loan agreements and documents relating to such mortgage loan agreements, to the Knowledge affecting each Owned Real Property.
(b) Section 4.9(b) of the Disclosure Letter sets forth (i) the address of each real property currently leased or subleased to or by a Banner Company, threatenedas lessee or sublessee (the “Leased Real Property”), and (ii) a true and complete list of all leases and subleases, and all modifications and amendments of and agreements relating to such leases and subleases (such leases and subleases, as modified and amended, collectively, the “Leases” or individually a “Lease”) for each such Leased Real Property. There are no pending or, Seller has delivered or made available to the Knowledge Buyer a true and complete copy of each such Lease. Except as set forth in Section 4.9(b) of the CompanyDisclosure Letter, threatened condemnation or eminent domain proceedings with respect to each of the Leases:
(i) such Lease is legal, valid, binding, enforceable and in full force and effect;
(ii) the transactions contemplated by this Agreement do not require the consent of any material other party to such Lease, will not result in a breach of or default under such Lease and will not otherwise cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing;
(iii) none of the Banner Companies has assigned any of its Leases or any interest in such Leases or sublet any portion of the premises leased to them under such Leases;
(iv) to Seller’s Knowledge, all structural elements of the buildings, structures and improvements on the Leased Real Property are in working condition, sufficient for the current operation of the Leased Real Property and, to Seller’s Knowledge, there are no proceedings instituted or threatened by any Company PropertyGovernmental Authority to condemn or acquire the Leased Real Property or any portion thereof, by eminent domain; and
(v) to Seller’s Knowledge, there exists no monetary or material non-monetary default under any Lease, nor any event which, with notice or lapse of time or both, would constitute a monetary or material non-monetary default thereunder by any party thereto.
(c) To Seller’s Knowledge, all of the land, buildings and structures used by the Banner Companies in the conduct of the Business are included in the Owned Real Property or Leased Real Property and the Owned Real Property and use of the Owned Real Property and Leased Real Property conforms with all Legal Requirements.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Patheon Inc)
Real Property. (a) Schedule 5.10(aThe members of the Merger Partner Group hold valid fee simple title to the Merger Partner Owned Real Property set forth in Section 3.9(a) sets forth a complete list of the Merger Partner Disclosure Letter, in each case, free and clear of Encumbrances other than Permitted Encumbrances. Neither the whole nor any part of the Merger Partner Owned Real Property is subject to any pending suit for condemnation or other taking by any Governmental Authority and, to the Knowledge of Merger Partner, no such condemnation or other taking is threatened or contemplated. To the Knowledge of Merger Partner, all improvements constituting part of the Merger Partner Owned Real Property (i) all real property comply with valid and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee current certificates of occupancy or similar Permits to the extent required by applicable Laws for the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”)use thereof, (ii) are in good operating condition and repair (ordinary wear and tear excepted), (iii) are adequately served with all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary utilities for the continued operation of the business of the Company Merger Partner Business in the ordinary course of business in all material respects, and (iv) have current uses and operations that do not violate in any material respect any Laws, covenants, conditions, restrictions, easements, licenses, permits, or agreements, except in the Subsidiaries case of each of clauses (i) through (iv), as would not, individually or in the business is currently conductedaggregate, reasonably be expected to be material to the Merger Partner Business or the Merger Partner Group, taken as a whole. All (b) The members of the Company Properties and Merger Partner Group have a valid leasehold interest (as lessee, sublessee, licensee or sublicensee) in all real property leased, licensed or otherwise used by the members of the Merger Partner Group (collectively with all buildings, structures, fixtures and Improvements thereon areother improvements leased thereunder, the “Merger Partner Leased Real Property”). After giving effect to the Contemplated Transactions and in the event that all necessary consents (written or otherwise) are obtained from the relevant lessors, sublessors, or licensors of each lease or Contract relating to the Merger Partner Leased Real Property, each of the leases or other Contracts relating to the Merger Partner Leased Real Property will create (or will have created) as of the Closing (i) a valid and subsisting leasehold interest, or valid right to use, of one of the members of the Merger Partner Group; (ii) a valid and binding obligation of such member of the Merger Partner Group free of Encumbrances (other than Permitted Encumbrances); and (iii) enforceable by and against such member of the Merger Partner Group in accordance with its terms, except in the cases of clauses (i) through (iii), as would not, individually or in the aggregate, reasonably be expected to be material to the Merger Partner Business or the Merger Partner Group, taken as a whole. None of the members of the Merger Partner Group, nor, to the Knowledge of the CompanyMerger Partner, any other party to any such lease or other Contract (i) in good operating conditioneach, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the a “Merger Partner Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(bLease”) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in breach or default under any such Merger Partner Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) event has occurred under any Real Property Lease or failed to occur or circumstance exists which, if not remediedwith the delivery of notice, would (whether with or without notice or the passage of time or both) result in , would constitute such a breach or default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary , or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation termination, modification or acceleration of the Improvements and the Company rent under such Merger Partner Real Property Lease, except as individually or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violationaggregate, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would not reasonably be expected to have be material to the Merger Partner Business or the Merger Partner Group, taken as a Material Adverse Effect.
whole. Merger Partner has Made Available to Merger Partner complete and correct copies of (dA) Neither the Company nor any Subsidiary ownsall leases, holdslicenses, is obligated under or is a party to, any option, right of first refusal subleases or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.Contracts pursuant to
Appears in 2 contracts
Sources: Merger Agreement (Everi Holdings Inc.), Merger Agreement (International Game Technology PLC)
Real Property. (a) Schedule 5.10(aSection 2.11(a) sets forth of the Company Disclosure Letter contains a true and complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the its Subsidiaries (individually, a “Real Property Lease” and collectively, the “Owned Real Property Leases” and, Property”) (together with all land, buildings, structures, fixtures and improvements located thereon). With respect to the Owned PropertiesReal Property, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) the Company or one of its Subsidiaries, as applicable, has good fee and marketable title to all such Owned Property and (ii) a valid leasehold interest inReal Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverother than Permitted Liens, except (A) those Liens set forth on Schedule 5.10(a) and (Bii) there are no outstanding options or rights of first refusal to purchase such Owned Real Property or any portion of the Owned Real Property or interest therein.
(b) For purposes of this Agreement, “Permitted Exceptions. The Company Properties constitute all interests Lien” means: (i) specified Liens described in real property currently used, occupied or currently held for use in connection with the business Section 2.11(b) of the Company and the Subsidiaries and Disclosure Letter; (ii) Liens for current Taxes or other governmental charges not yet due or delinquent or which are necessary for due or delinquent but are being contested in good faith by appropriate proceedings and, if required pursuant to GAAP, are reflected on or specifically reserved against or otherwise disclosed in the consolidated balance sheets included in the Company Reports; (iii) mechanics’, carriers’, workmen’s, repairmen’s or other like Liens arising or incurred in the ordinary course of business consistent with past practice; (iv) Liens with respect to zoning, entitlement, building and other land use regulations imposed by Governmental Entities having jurisdiction over the Owned Real Property which are not violated by the current use and operation of the Owned Real Property; (v) Liens with respect to Owned Real Property that do not, individually or in the aggregate, materially impair the continued operation use, operation, value or marketability of the specific parcel of Owned Real Property to which they relate or the conduct of the business of the Company and the its Subsidiaries as the business is currently presently conducted. All , or restrictions or exclusions which would be shown by a current title report or other similar report; (vi) all matters that are disclosed in any title insurance policy provided to Purchaser; (vii) any restriction on transfer arising under applicable securities laws; (viii) Liens of the Company Properties lessors and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, licensors arising under lease agreements or license arrangements; and (iiiix) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered any condition or other matter with respect to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplementsProperty, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions that may be shown or other agreements disclosed by a current and accurate survey or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leasesphysical inspection.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 2 contracts
Sources: Debt Conversion and Purchase and Sale Agreement (B. Riley Financial, Inc.), Debt Conversion and Purchase and Sale Agreement (Bebe Stores, Inc.)
Real Property. (a) Schedule 5.10(a4.14(a) sets forth a complete list describes each parcel of Owned Real Property. With respect to each parcel of Owned Real Property (other than the Rights-of-Way):
(i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company has good and the Subsidiaries (individuallyindefeasible fee simple title, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, Encumbrances;
(ii) are free from material structural defectsexcept as set forth in Schedule 4.14(a)(ii), and (iii) are suitableneither the Seller, sufficient and appropriate in all respects for their current and contemplated uses. The any Seller Affiliate nor the Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions will have leased or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation portion thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.; and
(diii) Neither the Company nor any Subsidiary ownsthere are no outstanding options, holds, is obligated under rights of first offer or is a party to, any option, right rights of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate purchase such Owned Real Property or any portion thereof or interest therein.
(eb) Subject Except as set forth on Schedule 4.14(b), with respect to market limitations and the other events affecting Rights-of-Way comprising the geographical area in which any Company Property is locatedOwned Real Property, the Company Property has good and indefeasible title to, or interests therein, sufficient to enable the Company to use and operate the Gathering Assets and the Improvements are sufficiently supplied Business in a reasonable and customary manner, free and clear of all material respects Encumbrances, except for Permitted Encumbrances, and to cause a prudent Person engaged in the business of purchasing, owning and operating the Business to accept such title. Except as set forth on Schedule 4.14(b), with utilities respect to the Rights-of-Way comprising the Gathering Assets, (A) the entire and other services as reasonably continuous length of each of the pipeline systems necessary for the operation conduct of the Business is covered by valid, enforceable and recorded Rights-of-Way in favor of the Company (or their predecessors in title, with assignment(s) of record vesting title into the Company) and their successors and assigns, and there are no spatial gaps in any of such Rights-of-Way, (B) the Rights-of-Way grant the Company Property (or their predecessors in title, with assignment(s) of record vesting title into the Company) the right to construct, operate, and Improvements as currently operated including adequate watermaintain each of these pipeline systems in, storm over, under, and sanitary seweracross the real property covered thereby, gasand to receive, electric, cable gather and telephone facilitiesredeliver gas produced from lands throughout the Dedicated Acreage and (C) each of these pipeline systems is located within the confines of such contiguous Rights-of-Way and does not encroach upon any adjoining real property.
(fc) Schedule 4.14(c) describes each parcel of Leased Real Property, and a true and complete list of all Leases for each such parcel of Leased Real Property. The Company has made available to Buyer a true and complete copy of each such Lease document.
(i) Neither the Seller, any Seller Affiliate nor the Company nor has not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in such Leases, except for assignments, transfers, conveyances, mortgages, deeds of its Subsidiaries trust or other Encumbrances which will be released prior to Closing. The Company has received written notice adequate rights of ingress and egress with respect to the Leased Real Property and all buildings, structures, facilities, fixtures and other improvements thereon. None of such Leased Real Property, buildings, structures, facilities, fixtures or other improvements, or the current use thereof, contravenes or violates any building or zoning Law, or any administrative, occupational safety and health or other applicable Law, in each case, in any material special assessment relating to any respect (whether or not permitted on the basis of prior nonconforming use, waiver or variance).
(ii) Except as set forth on Schedule 4.14(c)(ii), the Company has a valid leasehold interest in accordance with the terms of each Lease for the full term of the Lease thereof. Each Lease covering the Leased Real Property or any portion thereofis a legal, valid and no such special assessment is pending orbinding agreement enforceable in accordance with its terms against the Company and, to the Knowledge of Seller, each other Person that is a party thereto, and the CompanyCompany is not in, threatenedand the Company or Seller has not received notice of any, default (or any condition or event which, after notice or lapse of time or both, would constitute a default) thereunder. There are no pending orNeither Seller nor, to the Knowledge of Seller, any other party to any Leased Real Property is in breach or default, and, to the CompanyKnowledge of Seller, threatened condemnation no event has occurred which, with notice or eminent domain proceedings lapse of time, could reasonably be expected to constitute such a breach or default or permit termination, modification or acceleration under such Leased Real Property. The Company does not owe any brokerage commission with respect to any material portion of any Company such Leased Real Property.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (GMX Resources Inc)
Real Property. (a) Schedule 5.10(a2.12(a) sets forth a an accurate and complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Company Subsidiaries or that otherwise primarily relates to the Business and is owned by Seller or any of its Affiliates, in each case, as of the date hereof (individuallytogether with all structures, an “Owned Property” facilities, improvements and collectivelyfixtures presently or hereafter located thereon or attached thereto, the “Owned PropertiesReal Property”), including the address and owner of each parcel of such Owned Real Property.
(iib) Schedule 2.12(b) sets forth an accurate and complete list of all real property and interests in real property leased leased, subleased, licensed or occupied by the Company or any Company Subsidiary or that otherwise relates primarily to the Subsidiaries Business and is leased, subleased, licensed or occupied by Seller or any of its Affiliates (individuallythe “Leased Real Property”), a “including all leases, subleases or licenses (together with any and all amendments and modifications thereto and any guarantees thereof) in effect as of the date hereof pursuant to which such Leased Real Property Lease” and is leased, subleased, licensed or occupied by the Company, any Company Subsidiary or Seller (or any Affiliate thereof) as lessee, sublessee, licensee or occupant (collectively, the “Real Property Leases” and”), together with and identifying the Owned Propertieslandlord, being referred tenant and address for each Real Property Lease. Seller has delivered to herein individually as a “Company Property” Investor accurate and collectively as the “Company Properties”) as lessee or lessor, including a description complete copies of each such Real Property Lease Lease.
(including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (ic) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens Except as set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used2.12(c), occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge none of the Company, any other Personof the Company Subsidiaries or Seller (or any Affiliate thereof) has occurred under leased, subleased or granted to any Person any right to possess, lease or occupy any portion of the Owned Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Leased Real Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither Except as set forth on Schedule 2.12(d), none of the Company, any of the Company nor Subsidiaries or Seller (or any Subsidiary owns, Affiliate thereof) holds, has granted or is obligated under or is a party to, any option, right of first offer, right of first refusal or other contractual right to purchase, acquire, sell, assign sell or dispose of any real estate the Owned Real Property or the Leased Real Property or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property therein or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Propertyother real property.
Appears in 2 contracts
Sources: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all The Seller does not own any real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee that is primarily used by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests Seller in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name respect of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property LeasesBusiness.
(b) Each Section 3.13(b) of the Disclosure Schedule lists: (i) the street address of each parcel of Leased Real Property Leases is in full force and effect. Neither Property, (ii) the Company nor any Subsidiary is (andidentity of the lessor, to the Knowledge Seller’s Knowledge, of each such parcel of Leased Real Property, (iii) the Company, no other Person isterms (referencing applicable renewal periods) in default under any and rental payment amounts (including all escalations) pertaining to each such parcel of Leased Real Property LeaseProperty, and no breach by (iv) the Company (or, to the Knowledge current use of the Company, any other Person) has occurred under any each such parcel of Leased Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultProperty.
(c) The Company Except as described in Section 3.13(c) of the Disclosure Schedule, to the Seller’s Knowledge, there is no material violation of any Law (including any building, planning or zoning law) relating to any of the Leased Real Property. To the extent in the Seller’s actual possession, the Seller has made available to the Purchaser true, legible and complete copies of all the Subsidiaries have all certificates of occupancy occupancy, environmental reports and material Permits audits, permits, other Encumbrances and other documents relating to or otherwise affecting the Leased Real Property, the operations of the Seller (as they relate to the Business) thereon or any Governmental Body necessary or useful for the current use other uses thereof. The Seller is in peaceful and operation undisturbed possession of each Company parcel of Leased Real Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of Seller’s Knowledge, there are no contractual or legal restrictions that preclude or restrict the Company, threatened proceeding ability to use the Leased Real Property for the purposes for which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effectit is currently being used.
(d) Neither Section 3.13(d) of the Company Disclosure Schedule sets forth a true and complete list of all Leases relating to the Leased Real Property and any and all ancillary documents (the “Ancillary Lease Documents”) pertaining thereto (including all amendments, modifications, supplements, exhibits, schedules, addenda and restatements thereto and thereof and all consents, including consents for alterations, assignments and sublets, documents recording variations, memoranda of lease, rights of expansion, extension, first refusal and first offer and evidence of commencement dates and expiration dates). With respect to each of such Leases, neither the Seller has exercised or given any notice of exercise of, nor has any Subsidiary owns, holds, is obligated under lessor or is a party tolandlord exercised or received any notice of exercise by the Seller of, any option, right of first offer or right of first refusal contained in any such Lease, including any such option or other contractual right pertaining to purchase, acquireexpansion, sellrenewal, assign extension or dispose relocation that will be consummated after the date of any real estate or any portion thereof or interest thereinthis Agreement (collectively, “Options”).
(e) Subject to market limitations and To the other events affecting Seller’s Knowledge, there are no condemnation proceedings or eminent domain proceedings of any kind pending or threatened against the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesLeased Real Property.
(fi) Neither All the Company nor any Leased Real Property is occupied under a valid and current certificate of its Subsidiaries has received written notice occupancy or similar permit, (ii) the transactions contemplated by this Agreement and the Ancillary Agreements will not require the issuance of any material special assessment relating to any Company Property new or any portion thereofamended certificate of occupancy, and (iii) subject to the receipt of any necessary landlord consents to the actions contemplated by this Agreement, there are no such special assessment is pending facts that would prevent the Leased Real Property from being occupied by the Purchaser after the Closing in the same manner as occupied by the Seller immediately prior to the Closing.
(g) All improvements on the Leased Real Property constructed by or on behalf of the Seller or, to the Knowledge Seller’s Knowledge, constructed by or on behalf of any other Person, were constructed in material compliance with all applicable Laws affecting such Leased Real Property and wholly within the lot limits of such Leased Real Property.
(h) No improvements on the Leased Real Property and none of the Companycurrent uses and conditions thereof violate any Encumbrance, threatened. There applicable deed restrictions or other applicable covenants, restrictions, agreements, existing site plan approvals, zoning or subdivision regulations or urban redevelopment plans as modified by any duly issued variances, and no permits, licenses or certificates pertaining to the lease or operation of all improvements on the Leased Real Property, other than those which are transferable with the Leased Real Property, are required by any Governmental Authority having jurisdiction over the Leased Real Property.
(i) The rent set forth in each Lease of the Leased Real Property (as increased according to rent increase schedules or increases pursuant to indexes set forth in such Leases) is the actual rental being paid, and there are no pending or, to the Knowledge of the Company, threatened condemnation separate agreements or eminent domain proceedings understandings with respect to any material portion of any Company Propertythe same.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Goodman Networks Inc)
Real Property. (a) Schedule 5.10(a5.12(a) attached hereto sets forth a complete list of all Purchased Owned Real Property. With respect to each Purchased Owned Real Property or as set forth on Schedule 5.12(a) hereto: (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case Seller has good and marketable indefeasible fee simple title free and clear of all Liens of any nature whatsoever, (except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition), (ii) there are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any no written leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to of use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary material portion of such Owned Real Property; and (iii) there are no outstanding options or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right rights of first refusal or to purchase such Owned Real Property (other contractual than the right of Purchaser pursuant to purchasethis Agreement), acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries . No Seller has received any written notice of any material special assessment relating to pending or threatened condemnation proceedings in the nature of eminent domain in connection with any Company parcel of Purchased Owned Real Property or Leased Real Property that is subject to a Purchased Lease (“Purchased Leased Real Property”).
(b) Schedule 5.12(b)(1) attached hereto sets forth a true and complete list of all Leases other than Excluded Leases, together with the address of the Leased Real Property thereunder. In addition, except for the Excluded Leases and except as set forth on
(c) Schedule 5.12(c) sets forth a true and correct list of all Existing L/Cs and security deposits provided by any portion thereofSeller or any of its Affiliates under the Leases (including an identification of the Lease and Leased Real Property to which they relate).
(d) All buildings, structures, improvements, fixtures, and no such special assessment is pending orbuilding systems included in the Purchased Owned Real Property and the Leasehold Improvements (collectively, to the “Improvements”) are in working order. To the Knowledge of the CompanySellers, threatened. There there are (i) no pending or, to the Knowledge structural deficiencies or latent defects affecting any of the Company, threatened condemnation or eminent domain proceedings with respect to Improvements in any material portion respect, and (ii) no facts or conditions affecting any of the Improvements which would, individually or in the aggregate, interfere in any Company Propertymaterial respect with the use or occupancy of the Improvements.
Appears in 1 contract
Sources: Asset Purchase Agreement
Real Property. (a) None of the Companies owns or has ever owned any Real Property. None of ▇▇▇▇▇▇▇▇, Export or PEC has, or has ever had, any Leased Real Property (as defined below).
(b) Section 3.17(b) of the Disclosure Schedule 5.10(a) sets forth the street address of each parcel of Real Property in which any Acquired Subsidiary has a complete list of (i) all leasehold, subleasehold, license, concession or other real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries right or interest (individually, an “Owned Property” and collectively, the “Owned PropertiesLeased Real Property”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies list of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or and other agreements or arrangements, (whether written or oral), granting including all amendments, extensions renewals, guaranties, subordination agreements and other agreements with respect thereto, pursuant to which the any of the Acquired Subsidiaries holds any Leased Real Property (each a “Lease” and, collectively, the “Leases”). The Leased Real Property comprises all of the Real Property (owned or leased) used or intended to be used in, held for use in or otherwise necessary for the conduct of the Business. With respect to each Lease:
(i) such Lease is valid, binding, enforceable in accordance with its terms and in full force and effect;
(ii) The applicable Acquired Subsidiary is not, nor is, to the Companies’ Knowledge, any other Person under any of the Leases, in breach or default under such Lease;
(iii) the applicable Acquired Subsidiary has not assigned, transferred, sublet, or granted any Person the right to purchase, or the right to use or occupy such Leased Real Property or granted any other security interest in such Company PropertyLease or any interest therein, except as expressly set forth in Section 3.17(b) of the Real Property Leases.Disclosure Schedule; and
(bc) Each of the Acquired Subsidiaries has a good and valid leasehold interest in the Leased Real Property Leases is in full force free and effectclear of all Encumbrances, other than Permitted Encumbrances. Neither the Company nor No amounts are owed and no obligations remain unsatisfied by any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default Companies under any Real Property LeaseLease for buildout, tenant improvements, capital expenditures, allowances, brokerage commissions, finder’s fees or rent abatement, and no breach such amounts will be owed by Buyer or any Acquired Subsidiary after assignment of any Lease or the Company (or, to the Knowledge consummation of the Companytransactions contemplated hereunder. There is no condemnation, any other Person) has occurred under any Real Property Lease whichexpropriation, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is proceeding in full force and effect, and there is no eminent domain pending or, to the Knowledge of the CompanyCompanies’ Knowledge, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of affecting any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate Leased Real Property or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property . There is locatedno injunction, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate waterdecree, storm and sanitary sewerorder, gaswrit, electricor judgment outstanding, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment claims, litigation, administrative actions, or similar proceedings pending or, to the Companies’ Knowledge, threatened, relating to any Company the ownership, lease, use, or occupancy of the Leased Real Property or any portion thereof, or the operation of the Business thereon. To the Companies’ Knowledge, all public utilities currently serving the Leased Real Property and public and quasi-public improvements upon or adjacent to the Leased Real Property, as applicable (including, all applicable electric lines, water lines, gas lines and telephone lines):
(A) are adequate to service the requirements of the Leased Real Property and the applicable Acquired Subsidiary, and all payments for the same have been made, (B) enter the Leased Real Property directly through adjoining public streets and do not pass through adjoining private land and (C) are installed and operating, and all installation and connection charges have been paid for in full. Each of the Leased Real Properties consists of a single zoning lot and no other property is within such special assessment zoning lot. To the Companies’ Knowledge, the Leased Real Property is pending or, not encumbered by a declaration or other agreement transferring any development rights or air rights appurtenant to the Knowledge Leased Real Property to any other property. The Leased Real Property is in compliance with all applicable zoning ordinances
(d) Section 3.17(d) of the CompanyDisclosure Schedules sets forth a description of all material Leasehold Improvements made by the Acquired Subsidiaries for each Leased Real Property. Subject to the terms of the appliable Leases, threatenedthe Acquired Subsidiaries have good and marketable title to the Leasehold Improvements, free and clear of all liens, and there are no outstanding options, rights of first offer or rights of first refusal to purchase any such Leasehold Improvements or any portion thereof or interest therein. There are no pending or, to the Knowledge structural deficiencies or latent defects affecting any of the CompanyLeasehold Improvements and there are no facts or conditions affecting any of the Leasehold Improvements which would, threatened condemnation individually or eminent domain proceedings in the aggregate, interfere in any material respect with the use or occupancy of the Leasehold Improvements or any portion thereof in the operation of the Business. The Leasehold Improvements are in good condition and repair and the systems located therein are in good working order and adequate to operate such facilities as currently used and do not require material repair or replacement in order to serve their intended purposes, except for scheduled maintenance, repairs and replacements conducted or required in the Ordinary Course of Business with respect to the operation of the Leased Real Property that are not material in nature or cost.
(e) All buildings, fixtures, tangible personal property and leasehold improvements used in the Business are located on the Leased Real Property and none of the Leasehold Improvements encroach on (i) any material portion adjoining property owned by others or public rights of way, or (ii) any Company part of the Leased Real Property which is subject to or encumbered by a right-of-way, easement or similar Contract. Each parcel of Leased Real Property abuts on at least one side a public street or road in a manner so as to permit reasonable, customary, adequate and legal commercial and non-commercial vehicular and pedestrian ingress, egress and access to such parcel, or has adequate easements across intervening property to permit reasonable, customary, adequate and legal commercial and non-commercial vehicular and pedestrian ingress, egress and access to such parcel from a public street or road. There are no restrictions on entrance to or exit from the Leased Real Property to adjacent public streets and no conditions which will result in the termination of the present access from the Leased Real Property to existing highways or roads.
(f) There has not been in the past twelve (12) months, and there is not now, any casualty affecting the Leased Real Property, and there is not now any disrepair or damage that remains unrepaired, due to any prior casualty, if any, affecting the Leased Real Property.
Appears in 1 contract
Sources: Plan of Merger and Equity Purchase Agreement (Agrify Corp)
Real Property. (a) Schedule 5.10(a3.5(a) sets forth contains a complete and accurate list of the following as of the date of this Agreement:
(i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in All real property leased by any Seller and used primarily in connection with the Company or businesses conducted at the Subsidiaries Bens Run Facility and the Specialty Facility and the buildings, structures and improvements thereon (individually, a “Real Property Lease” and collectively, the “Leased Property”) and all real property leases and subleases (and all material amendments, addenda, extensions and modifications thereto) relating to the Leased Property;
(ii) All real property owned by any Seller and used primarily in connection with the businesses conducted at the Bens Run Facility and the Specialty Facility (the “Owned Real Property LeasesProperty” and, together with the Owned PropertiesLeased Property, being referred to herein individually as a “Company Property” and collectively as the “Company PropertiesReal Property”);
(iii) as lessee All Contracts or lessoroptions (and all amendments, including a description extensions and modifications thereto) held by Sellers, to purchase or acquire any interest in real property used primarily in the businesses conducted at the Bens Run Facility or Specialty Facility; and
(iv) All Contracts or options (and all amendments, extensions and modifications thereto) granted by Sellers, or contractual obligations (and all amendments, extensions and modifications thereto) on the part of each such Sellers to sell or dispose of any interest in Real Property Lease (including the name that are in effect as of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leasesthis Agreement.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, Sellers have valid title to the Knowledge of the Company, no other Person is) in default under any Owned Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultProperty.
(c) The Company Sellers have the right to occupy and use all Real Property. Except as set forth in Schedule 3.5(c)(i), there are no leases, subleases, licenses or other agreements granting to any third Person the Subsidiaries have all certificates right of use or occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation portion of each Company Property, and any agreement, easement or Real Property (other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to than Permitted Encumbrances). To the Knowledge of Sellers, the CompanyBens Run Facility and the Specialty Facility have received all required approvals of Governmental Authorities (including, threatened proceeding which could result without limitation, Permits) required in connection with the material and adverse modification or cancellation operation thereof. No default or violationExcept as set forth on Schedule 3.5(c), or event that with the lapse of time or giving of notice or both would become a default or violationimprovements constructed on the Bens Run Facility and the Specialty Facility, has occurred in the due observance of any Permit. No Improvementincluding, or the operation or maintenance thereofwithout limitation, violates any restrictive covenantall leasehold improvements, or encroaches on any property owned or leased by any Sellers at such facilities, are (x) in good operating condition and repair, subject to ordinary wear and tear and (y) in conformity in all material respects with all applicable Laws, ordinances, orders, regulations and other Personrequirements relating thereto currently in effect, which has had except to the extent that failure to comply with either clause (x) or clause (y) individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor Except as set forth on Schedule 3.5(d), Sellers have not received any Subsidiary owns, holds, is obligated under or is a party to, written notice of any option, right of first refusal material proceeding in eminent domain or other contractual right similar proceeding materially affecting any Real Property. There exists no material Court Order outstanding against the Sellers which relates solely to purchasethe ownership, acquirelease, selluse, assign occupancy or dispose operation of any real estate or any portion thereof or interest thereinthe Real Property.
(e) Subject to market limitations and To the other events affecting Knowledge of the geographical area in which any Company Property is locatedSellers, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services except as reasonably necessary for set forth on Schedule 3.5(e), (i) the operation of the businesses at the Bens Run Facility and Specialty Facility on the Real Property, does not violate in any material respect, any zoning, use, occupancy, building or wetlands Law or requirement relating to the Bens Run Facility and Specialty Facility, (ii) the use and operation of the Real Property in the conduct of the businesses at the Bens Run Facility and the Specialty Facility, as currently conducted, do not violate in any material respect any instrument of record or agreement affecting such Company Real Property and Improvements as currently operated including adequate water(iii) there is no material violation of any covenant, storm and sanitary sewercondition, gasrestriction, electriceasement or agreement or order of any Governmental Authority that affects such Real Property or the ownership, cable and telephone facilitiesoperation, use or occupancy thereof.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating The Real Property, together with easements appurtenant to any Company Property or any portion thereofsuch Real Property, and no such special assessment is pending or, to the Knowledge includes all of the Company, threatened. There are no pending or, to real property used or held for use in connection with the Knowledge operation of the Companybusinesses at the Bens Run Facility and the Specialty Facility, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Propertytaken as a whole.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aleris International, Inc.)
Real Property. (a) Schedule 5.10(aSection 3.13(a) sets forth of the Company Disclosure Letter contains a complete and accurate list of (i) all real property and interests in owned by the Company or any of its Subsidiaries (such real property, including together with all appurtenant easements thereunder or relating thereto and all structures, fixtures and improvements thereon located thereon, the “Owned Real Property”). The Company and easements appurtenant thereto owned in fee by its Subsidiaries have good, valid and marketable title to all Owned Real Property, free and clear of all Liens, except for Permitted Liens.
(b) Section 3.13(b) of the Company Disclosure Letter contains a complete and accurate list of all of the Subsidiaries existing leases, subleases or other agreements (individually, an “Owned Property” and collectively, the “Owned PropertiesLeases”), (ii) all real property and interests in real property leased by under which the Company or any of its Subsidiaries uses or occupies or has the Subsidiaries right to use or occupy, now or in the future, any real property (individually, a “Real Property Lease” and collectivelysuch property, the “Leased Real Property”). The Company has made available to Parent a complete and accurate copy of all Leases of Leased Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee all material modifications, amendments, supplements, waivers and the date of the lease or sublease and all amendments side letters thereto). The Company and the and/or its Subsidiaries have (i) good fee title to all Owned Property and (ii) a own valid leasehold interest ininterests in the Leased Real Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) other than Permitted ExceptionsLiens. The Company Properties Owned Real Property and the Leased Real Property constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Company’s Subsidiaries and which are necessary for the continued operation of the business of the Company and the Company’s Subsidiaries as the business is currently conducted. All .
(c) Section 3.13(c) of the Company Properties Disclosure Letter contains a complete and buildings, fixtures and Improvements thereon are, to the Knowledge accurate list of all of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, existing Leases granting to any Person Person, other than the right to purchaseCompany or any of its Subsidiaries, or the any right to use or occupy occupy, now or in the future, any such Company material portion of the Leased Real Property, except the Real Property Leases.
(bd) Each All of the Real Property Leases is set forth in Section 3.13(b) or Section 3.13(c) of the Company Disclosure Letter are, and at the Closing, unless expired, shall be, legal, valid and binding and in full force and effecteffect and will not have been assigned, supplemented or amended other than in the ordinary course of business. Neither the Company nor any Subsidiary of its Subsidiaries is (in material breach of or material default under, or has received written notice of any material breach of or material default under, any such Lease, and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) event has occurred under any Real Property Lease which, if not remedied, would (whether that with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have constitute a Material Adverse Effect.
(d) Neither material breach or material default thereunder by the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Propertyother party thereto.
Appears in 1 contract
Sources: Merger Agreement (RR Media Ltd.)
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) Fee Simple. The Sellers' Disclosure Schedule contains a summary of all real property the lands and interests in real propertypremises together with buildings and improvements thereon, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests or that will be owned in real property leased fee by the Company or after consummation of the Subsidiaries transactions described in the Exchange Agreement upon the terms and conditions set forth in the Exchange Agreement (individually, a “the "COMPANY'S OWNED REAL PROPERTY"). Except for the Company's Owned Real Property Lease” and collectively, real property subject to the “Company's Real Property Leases” and, Estate Contracts (the "COMPANY'S LEASED REAL PROPERTY," together with the Company's Owned PropertiesReal Property, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee "COMPANY'S REAL PROPERTY"), no other real property, or lessorinterest in real property, including a description of each such Real Property Lease (including is used in the name operation of the third party lessor or lessee and Business. Except for the date of real property to be acquired by the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of Exchange Agreement, the applicable lease) of, all Company Properties subject has marketable and insurable fee simple title to and owns the Company's Owned Real Property Leases, in each case free and clear of all mortgages, deeds of trust, liens, pledges, security interests, claims, leases, subleases, options, rights of first refusal, easements, restrictive covenants, restrictions, limitations, or other documents of record other than Permitted Liens, Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplementsmortgages, if any, thereto. The Company Properties are not subject to any leasesthat will be canceled as of Closing, rightsand easements, optionsrestrictions, subleases, licenses, occupancy agreements, concessions rights of way and other matters of public record or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge that would be disclosed by a survey of the Company's Owned Real Property. The Sellers have delivered to Delta or the Buyer true and correct copies of all title insurance policies, no other Person is) in default under any surveys, and deeds to the Company's Owned Real Property Leasethat are in the Sellers' possession; provided, and however, that Sellers make no breach by the Company (or, representation or warranty as to the Knowledge accuracy or completeness of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company information and Delta and the Subsidiaries have all certificates of occupancy Buyer acknowledge that they are relying solely on their own investigation and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches not on any property owned information provided by Sellers or leased by any other Person, which has had their agents or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings representatives with respect to any material portion of any Company Propertythe information contained in such title insurance policies, surveys and deeds not otherwise covered by a representation or warranty contained in Section 3.4(b).
Appears in 1 contract
Real Property. (a) Section 3.06(a) of the Seller Disclosure Schedule 5.10(a) sets forth a complete list legal description of (i) all real property the Little Rock Facility and interests in real propertyidentifies the China Facility, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) which taken together constitute all real property and interests in real property leased (including land use rights) owned by Seller or a Seller Affiliate and used or held for use exclusively in the Company operation or conduct of the Subsidiaries Business, other than any such property or interest constituting an Excluded Asset (individually, a an “Real Property Lease” and collectively, Owned Property”). Neither Seller nor any Seller Affiliate leases any real property or interest in real property that is used or held for use exclusively in the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee operation or lessor, including a description of each such Real Property Lease (including the name conduct of the third party lessor Business.
(b) Seller or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good a Seller Affiliate has fee title to all Owned Property the Little Rock Facility and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant title to the terms of China Facility (with all buildings located thereon duly recorded on the applicable lease) of, all Company Properties subject to Real Property Leasesrelevant property title certificates issued by the appropriate Chinese authorities), in each case free and clear of all Liens (including licenses related to use of any nature whatsoeverreal property), except (Ai) those the Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests described in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, clauses (i) in good operating conditionthrough (iv) of Section 3.05(a), (ii) are free from material structural defectsthose matters set forth in Section 3.06(b) of the Seller Disclosure Schedule, and (iii) are suitableeasements, sufficient covenants, restrictions, rights-of-way and appropriate other similar matters, whether or not of record that do not materially impair the continued use and operation of the assets to which they relate in all respects for their current the conduct of the Business as presently conducted, (iv) any conditions that may be shown by a current, accurate survey or that would be apparent as part of a physical inspection of any Owned Property made prior to the applicable Closing and contemplated uses. The Company has delivered to Purchaser true(v) zoning, correct building and complete copies of other similar restrictions (the Liens described in clauses (i) all deeds, title reports and surveys for the Owned Properties and through (iiv) the Real Property Leasesabove, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each Liens set forth in Sections 3.05 and 3.06 of the Real Property Leases is in full force and effectSeller Disclosure Schedule, are referred to collectively as the “Permitted Liens”). Neither To the Company nor any Subsidiary is (andknowledge of Seller, to the Knowledge as of the Companydate of this Agreement, there are no other Person is) in default under any Real Property Lease, and no breach by the Company (or, material projects planned relating to the Knowledge maintenance of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or structural integrity of the passage of time or both) result in such a defaultOwned Property.
(c) The Company and This Section 3.06 does not relate to environmental matters, such items being the Subsidiaries have all certificates subject of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse EffectSection 3.14(d).
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all real property The Sellers own and interests in real property, including improvements thereon will convey to Buyer good and easements appurtenant thereto owned in marketable fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee simple title to all each Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property LeasesProperty, in each case free and clear of any Liens other than Permitted Liens. Disclosure Schedule Section 3.07(a) sets forth a true and complete list of the Owned Real Property, including (i) the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, lot and legal description of each parcel of Land, (ii) a brief description of the Improvements on each such parcel of Land, and (iii) any title insurance policy covering each such parcel of Land (all Liens of which policies have previously been delivered to Buyer).
(b) The Sellers hold and will assign to Buyer a valid and enforceable leasehold interest in, or a valid license to occupy, the Leased Real Property, in each case free and clear of any nature whatsoeverLiens other than Permitted Liens. Disclosure Schedule Section 3.07(b) sets forth a true and complete list of the Leased Real Property, except and all Leases and Real Property Leases (Acopies of which have previously been furnished to Buyer), in each case, setting forth (i) those Liens set forth the lessor and lessee thereof and the date and term of each of the Real Property Leases, (ii) the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, lot and legal description of each parcel of Leased Real Property, (iii) a brief description (including size and function) of the principal improvements and buildings on each such leased parcel, (iv) any requirement of consent of or notice to the lessor to assignment, and (v) any leasehold title insurance policy covering each such parcel (all of which policies have previously been delivered to Buyer).
(c) Except as disclosed on Disclosure Schedule 5.10(aSection 3.07(c) and Disclosure Schedule Section 3.17(b), with respect to each Owned Real Property:
(Bi) Permitted Exceptions. The Company Properties constitute all interests in real property currently usedmaterial improvements, occupied or currently held for use installations, equipment and facilities utilized in connection with the business of the Company Stations, including material studios, towers and transmission equipment, are (A) located entirely on the Subsidiaries Owned Real Property or have the benefit of valid easements or other legal rights and which there are necessary no encroachments thereon that would affect the use thereof, (B) maintained on the Owned Real Property in compliance in all material respects with all applicable Laws, Permits or other arrangements or requirements and (C) in normal operating condition and repair in all material respects for the continued operation of the business of the Company uses for which they are currently employed (normal wear and the Subsidiaries as the business is currently conducted. All of the Company Properties tear excepted) and buildings, fixtures and Improvements thereon are, have not suffered any casualty or other material damage that has not been repaired in all material respects;
(ii) to the Knowledge of the CompanySellers, the Owned Real Property is in material compliance with all applicable material building, zoning, subdivision, health and safety and other land use Laws, including The Americans with Disabilities Act of 1990, as amended;
(iiii) the Improvements have received all approvals of Governmental Authorities (including licenses and permits) required in good operating conditionconnection with the ownership or operation thereof;
(iv) except as set forth in the Leases, there is no Person in possession of any Owned Real Property other than the Sellers;
(iiv) are free from material structural defectsno Person has any right or option to acquire any of the Owned Real Property, or any portion thereof or interest therein;
(A) each parcel of Owned Real Property has access (e.g. ingress and egress) to a public street adjoining such parcel of Owned Real Property, or has ingress and egress to a public street via Real Property Leases or easements, and (iiiB) are suitable, sufficient and appropriate such access is not dependent on any land or other real property interest which is not included in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.;
(bvii) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the CompanySellers, threatened condemnation proceedings, suits or actions relating to the Owned Real Property;
(viii) to the Knowledge of the Sellers, the current use and occupancy of the Owned Real Property and the operation of the Business of the Sellers as currently conducted thereon does not violate in any material respect any easement, covenant, condition, restriction or similar provision in any instrument of record or other unrecorded agreement affecting such Owned Real Property or the Sellers’ use and occupancy thereof;
(ix) the Owned Real Property is, and until Closing shall be, insured against casualty on a full replacement cost basis by one or more insurance policies maintained by the Sellers.
(d) Except as disclosed on Disclosure Schedule Section 3.07(d), with respect to each Leased Real Property:
(i) each Lease and Real Property Lease is a legal, valid and binding obligation of the Sellers, is in full force and effect, and has not been amended (other than with respect to any amendments provided to Buyer);
(ii) the Sellers (A) are not in material default under any Lease or Real Property Lease, (B) within the past two (2) years, have not received any notice of material default under or termination of any Leases or Real Property Leases, (C) have no Knowledge of any current material default by any third party under any Lease or Real Property Lease and (D) no event has occurred which, with the passage of time or the giving of notice or both, would cause a material default under any of the Leases or Real Property Leases;
(iii) the Sellers have not received notice of any condemnation proceeding with respect to any portion of the Leased Real Property or access thereto;
(iv) As of the date hereof, (A) fixed rent, overage rent and any additional charges due under the Leases are being billed to the tenants thereunder in accordance with the terms of such Leases, (B) no such tenant was in arrears in the payment of any such rent for more than one calendar month, (C) no such tenant is entitled to “free” rent or tenant improvement allowances and (D) all work required to be performed by the lessor under each Lease has been completed and fully paid for; and
(v) the Sellers have made available to Buyer true and correct copies of the Leases and Real Property Leases, together with all amendments thereto.
(e) The Real Property is the only real property used primarily with respect to the Stations as of the date hereof. Except as set forth on Disclosure Schedule Section 3.07(e), the Sellers have received no notice of any material violation of Law affecting the Real Property or the Sellers’ use thereof.
(f) The Sellers have not received any notice from any utility company or municipality of any fact or condition which could result in the material and adverse modification discontinuation of currently available or cancellation thereof. No default or violationotherwise necessary sewer, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewerelectric, gas, electrictelephone or other utilities or services for the Owned Real Property or Leased Real Property. The Owned Real Property has adequate rights of access to water, cable sewer, sanitary sewer and telephone storm drain facilities and community services. All public utilities necessary or convenient to the full use, occupancy, disposition and enjoyment of the Owned Real Property are located in the public right-of-way abutting the Owned Real Property and all such utilities are connected so as to serve the Owned Real Property without passing over other property or are within nonterminable easements. The Real Property includes access to the Stations’ facilities.
(fg) Neither Within the Company nor any of its Subsidiaries has past two (2) years, the Sellers have not received written notice of any material special assessment relating to existing plan or study by any Company Governmental Authority or by any other Person that challenges or otherwise adversely affects the continuation of the use or operation of any Owned Real Property or any portion thereof, Real Property Leases and have no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation any such plan or eminent domain proceedings study with respect to any material portion which they have not received written notice.
(h) All brokerage commissions and other compensation and fees payable by reason of any Company the Real Property Leases or the Owned Real Property, have been paid in full or are reflected in the Business Financial Statements. True and complete copies of all brokerage agreements with respect to the Real Property Leases or the Owned Real Property have been delivered to Buyer.
(i) Disclosure Schedule Section 3.07(i) sets forth a list of all real property tax assessment protests and proceedings affecting the Owned Real Property.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) Owned Real Property. Schedule 1.1(c) is in all material respects ------------------- a true, complete and correct list, as of the date hereof, of the street addresses and square footage of improvements on each parcel of Owned Real Property. The Owned Real Property constitutes all real property and or interests in real property, including improvements thereon and easements appurtenant thereto property owned in fee by Sellers or the Company and the Sold Subsidiaries (individually, an “other than any Excluded Assets) and primarily used in the operation of the Business as presently conducted. None of the Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” is Surplus Property. Each Seller and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” Sold Subsidiary has good and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good insurable fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case owned by it free and clear of all Liens of any nature whatsoever, except other than (A) those Liens set forth on Schedule 5.10(a) and Permitted Liens, (B) Permitted Exceptions. The Company Properties constitute all interests easements, covenants, rights-of-way and other encumbrances or restrictions of record, (C) zoning, building and other similar restrictions, (D) unrecorded easements, covenants, rights- of-way or other restrictions, (E) Liens that have been placed by any developer, landlord or other Person (other than Sellers or the Sold Subsidiaries) on property (other than Owned Real Property) over which any of Sellers or the Sold Subsidiaries has easement rights, none of which items set forth in real clauses (B), (C), (D) or (E) above, individually or in the aggregate, materially impair the ability of the Sellers or the Sold Subsidiaries to use the property for the purposes for which it is currently used, occupied or currently held for use being used in connection with the business Business and, with respect to any Significant Real Property, none of which items set forth in clauses (B), (C), (D) or (E) would materially impair the continued use and operation thereof for the same uses and operations as those conducted at the present time or grant to any party any option or right to acquire or lease a material portion thereof. Except as set forth in Section 5.8, no brokerage or finders commissions shall be payable by Purchaser in connection with the conveyance of the Company Owned Real Property to Purchaser. Except as set forth in Schedule 4.1(g)(i), no material portion of any of the Owned Real Property is leased by Sellers or the Sold Subsidiaries to any Person.
(ii) Leased Real Property. Schedule 1.1(b) is in all material -------------------- respects a true, complete and correct list of all Leased Real Property. CBS shall provide Purchaser a list of all leases of Leased Real Property not later than 20 business days following the Subsidiaries date of this Agreement. The Leased Real Property constitutes all real property leased by any Seller or Sold Subsidiary as Lessee (other than the Excluded Assets) and which are necessary for primarily used in the continued operation of the business Business as presently conducted. None of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Leased Real Property Leases, together with all amendments, modifications or supplements, if any, theretois Surplus Property. The Company Properties are not subject With respect to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any each lease for Significant Real Property: (A) each such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases lease is valid and subsisting and in full force and effect. Neither effect as against the Company nor any Seller or the Sold Subsidiary is (therein designated and, to the Knowledge best of Sellers' knowledge, as against the landlord, and has not been amended, modified or supplemented except as set forth in Schedule 1.1(b) or in a manner which would not reasonably be expected to materially reduce the benefits to Purchaser of the Company, transactions contemplated by this Agreement; (B) no other Person is) in notice of a material default has been sent or received by any Seller or Sold Subsidiary under any Real Property Lease, and no breach by the Company (orsuch lease which remains uncured and, to the Knowledge best of the CompanySellers' knowledge, any other Person) no event has occurred under any Real Property Lease and is continuing which, if not remedied, would (whether with or without notice or the passage lapse of time or both, would constitute a material default by any Seller or Sold Subsidiary under such lease; and (C) result the tenant is in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effectspace demised thereunder.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (a) The Real Property listed on Schedule 5.10(a) sets forth a complete list of (i) 2.1.7 constitutes all real property primarily used in the Business and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by Seller or any of its Affiliates (the Company "Owned Real Property") or leased by Seller (the "Leased Real Property"). Seller has title to the Owned Real Property and title to the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and leasehold interests in real property leased by the Company or the Subsidiaries (individually, a “Leased Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant subject to the terms of the applicable lease) ofleases, all Company Properties subject licenses, subleases and related instruments governing the Seller's interests therein, as listed on Schedule 2.1.7), to Real Property Leasesthe Knowledge of Seller, in each case free and clear of all Liens other than (a) Liens listed or described on Schedule 2.1.7, (b) Liens referred to in the title policies listed on Schedule 2.1.7, (c) other Permitted Liens, (d) Liens that arise under zoning, land use and other similar laws, and (e) easements, covenants, rights-of-way and other encumbrances or restrictions, whether recorded or referred to in an applicable lease or unrecorded, which, in the case of any nature whatsoeverof the preceding clauses (a) through (e), except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptionsdo not materially impair the continued use of the property subject thereto in the Business as presently conducted. The Company Properties constitute all interests in real property currently usedleases, occupied licenses and subleases related to the Leased Real Property are valid and subsisting leases, licenses or currently held for use in connection with the business of the Company and the Subsidiaries and subleases which are necessary for the continued operation of the business of the Company in full force and the Subsidiaries as the business is currently conducted. All of the Company Properties effect and buildings, fixtures and Improvements thereon areneither Seller nor, to the Knowledge of the CompanySeller, (i) any other party thereto, is in good operating condition, (ii) are free from material structural defectsdefault thereunder. The Real Property, and (iii) are suitableSeller's use of it in the Business, sufficient and appropriate in comply with all respects for their current and contemplated uses. The Company has delivered applicable Laws, except where the failure to Purchaser trueso comply, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, individually or together with all amendmentsother such failures to so comply, modifications or supplements, if any, thereto. The Company Properties would not have a Material Adverse Effect; and no condemnation proceedings are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchasepending, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the CompanySeller, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of the Real Property, nor has any Company Propertysuch property been condemned. Seller has, and the Purchaser immediately after the Closing will have, access to public roads or valid easements over private streets or private property for such ingress to and egress from each of the Real Property as is necessary for the conduct of the Business as conducted as of the date hereof.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all real property Section 3.01(o)(i) of the Disclosure Schedule sets forth the address and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such parcel of Owned Real Property Lease Property. With respect to each parcel of Owned Real Property, and except for matters that, individually or in the aggregate, have not had, and would not reasonably be expected to result in, a Material Adverse Effect:
(including the name A) one of the third party lessor or lessee Target Entities has good and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good marketable fee title to all Owned Property and (ii) a valid leasehold interest insimple title, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverLiens, except (A) those Liens set forth on Schedule 5.10(a) and Permitted Liens;
(B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business none of the Company and the Target Entities or their Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications leased or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leases.or any portion thereof;
(bC) Each (i) Seller or one of its Subsidiaries has received all approvals of Governmental Authorities (including Permits) required in connection with the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with ownership or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements buildings and other improvements located upon such Owned Real Property and the Company Property conduct of the Business on such Owned Real Property, as currently conducted, (ii) the same have been operated and maintained by Seller or any drivewaysone of its Subsidiaries in accordance with all applicable Laws, roads rules and other means of egress regulations in all material respects and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and (iii) there is no pending or, to the Knowledge of the CompanySeller’s Knowledge, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse revocation of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.such approvals; and
(dD) Neither the Company nor any Subsidiary ownsthere are no outstanding options, holds, is obligated under rights of first offer or is a party to, any option, right rights of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate purchase such Owned Real Property or any portion thereof or interest therein.
(eii) Subject Section 3.01(o)(ii) of the Disclosure Schedule sets forth the address of each material parcel of Leased Real Property, and a true and complete list of all leases (the “Leases”) for each such material parcel of Leased Real Property. Seller has delivered to market limitations Purchaser correct and complete copies of those Leases listed in Section 3.01(o)(ii)
(iii) With respect to each of the Leases: (A) such Lease is legal, valid, binding, enforceable and in full force and effect, subject to proper authorization and execution of such Lease by the other party thereto and the application of any bankruptcy or other events affecting creditor’s rights laws; (B) the geographical area Asset Seller or the Target Entity party thereto is not in which any Company Property is locatedbreach or default under such Lease, and to Seller’s Knowledge, no event has occurred or circumstance exists which, with the delivery of notice, the Company Property passage of time or both, would constitute such a breach or default; (C) all rents, additional rents and other payments due to date on each Lease have been paid; and (D) no current waiver, indulgence or postponement of any tenant’s obligations under a Lease has been granted, except to the Improvements extent, in each case, such circumstance, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a Material Adverse Effect.
(iv) To Seller’s Knowledge, with respect to each parcel of Leased Real Property, and with respect to each parcel of Owned Real Property:
(A) there is (are) no party(ies) (other than Seller and its Subsidiaries) in possession of any portion of such parcel, other than any tenant(s) under any lease(s) set forth in Section 3.01(o)(iv)(A) of the Disclosure Schedule who is (are) in possession only of space to which it is (they are) entitled;
(B) all of the buildings and improvements located on such parcel are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property buildings and Improvements improvements, as currently operated including operated, all of which services are adequate waterfor the conduct of the business operations on such parcel, storm and sanitary seweras currently conducted, gas, electric, cable and telephone facilities.in accordance with all applicable Laws;
(f1) Neither applicable zoning ordinances permit the Company nor any conduct of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereofthe Business on such parcel, as currently conducted, and will permit such conduct by Purchaser after the Closing; (2) there are no zoning violations related to such special assessment is pending or, to parcel or the Knowledge conduct of the Company, threatened. There business operations on such parcel; (3) there are no zoning variances or other special zoning status related to such parcel; and (4) there is no pending or, to Seller’s Knowledge, threatened change in the Knowledge zoning classification of such parcel or any portion thereof that would prohibit, limit or condition the Companyuse of such parcel as currently used;
(D) there is direct access to and from such parcel for utilities, drainage and ingress and egress to and from public streets without crossing land other than such parcel; and
(E) there is (are) no (1) pending or, to Seller’s Knowledge, threatened condemnation Actions relating to such parcel or eminent domain proceedings with respect (2) other matters pending or, to any Seller’s Knowledge, threatened, which would adversely and materially impair the value of such parcel or affect the current use or occupancy thereof.
(v) Together, the Leased Real Property and the Owned Real Property constitute all real property necessary for the continued operation of the Business as currently conducted in all material portion of any Company Propertyrespects.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Albany International Corp /De/)
Real Property. (a) All of the real property owned by Sellers and used primarily in the business and operation of the Publications is identified on Schedule 5.10(a3.10(a), together with all buildings, structures, residences, fixtures, landscaping, utility lines, roads, driveways, fences, parking areas, contiguous and adjacent entry rights, construction in progress, and all other improvements to such real property that are owned by Sellers or any Affiliate, located in and upon such real property, and used primarily in the business and operation of the Publications, together with all rights, privileges, and easements appurtenant to the foregoing (all of the foregoing collectively referred to as the “Owned Real Property”);
(b) Schedule 3.10(b) sets forth a complete and accurate list of all leasehold interests of Sellers used primarily in the business and operation of the Publications (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company “Leased Real Property”). The Leased Real Property and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, are collectively referred to as the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” ”.
(c) Good and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good marketable fee title to all each parcel of Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leasesdisclosed on Schedule 3.10(a) is owned by Sellers set forth on such schedule, in each case free and clear of all Liens any Liens, easements, rights- of-way, licenses, use restrictions, claims, charges, options, rights of first offer, rights of first refusal or title defects, of any nature whatsoever, except for Permitted Encumbrances (Aas defined below). As used in this Agreement, the term “Permitted Encumbrances” means (i) those Liens for Taxes not yet due and payable; (ii) Liens for Taxes which are being contested in good faith and by appropriate proceedings in the amount of which a reserve has been created and set forth on Schedule 5.10(athe Closing Date Balance Sheet; (iii) and (B) Permitted Exceptions. The Company Properties constitute all interests carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in real property currently used, occupied the ordinary course of business consistent with past practice or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for being contested in good faith and by appropriate proceedings in the continued operation amount of which a reserve has been created on the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon areClosing Date Balance Sheet (which reserve under clauses (ii) or (iii) shall, to the Knowledge extent Sellers are successful in finally, definitively and irrevocably contesting any such Liens and Buyer effectively gets the benefit thereof, will upon written notice and delivery of the Companysatisfactory proof thereof, be refunded to Sellers); (iiv) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leaseseasements, rights-of-way, options, subleasesencroachments, licenses, occupancy agreementsrestrictions, concessions or conditions and other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if similar encumbrances which do not remedied, would (whether materially interfere with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Owned Real Property.;
Appears in 1 contract
Sources: Asset Purchase Agreement
Real Property. (a) Section 3.19(a)(i) of the Seller Disclosure Schedule 5.10(a) sets forth a materially accurate and complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or any of its Subsidiaries, including but not limited to mining and surface rights (the Subsidiaries (individually“Owned Real Property”). Section 3.19(a)(ii) of the Seller Disclosure Schedule sets forth an accurate and complete list, a “citing to the recording information for the source deed, of all material Owned Real Property Lease” and collectively(the “Material Owned Real Property”). Except as set forth in Section 3.19(a)(iii) of the Seller Disclosure Schedule, the “Company or one of its Subsidiaries has good and marketable title to the Material Owned Real Property Leases” andProperty, together with the Owned Properties, being referred to herein individually free and clear of Encumbrances (other than Permitted Encumbrances). Except as a “Company Property” and collectively as the “Company Properties”set forth in Section 3.19(a)(iv) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date Seller Disclosure Schedule, with respect to each parcel of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have Material Owned Real Property, (i) good fee title to all Owned Property there are no material Contracts granting any Person (other than the Company or any of its Subsidiaries) the right of entry, use or occupancy of any portion of such parcel and (ii) there are no material outstanding rights of first refusal, rights of first offer or options to purchase such parcel or any interest therein. No Material Improvements constituting part of the Owned Real Property encroach on real property owned or leased by a valid leasehold interest inPerson other than the Company or its Subsidiaries. Section 3.19(a)(v) of the Seller Disclosure Schedule identifies all Material Improvements located on the Owned Real Property and the parcel on which each such improvement is located.
(b) Section 3.19(b)(i) of the Seller Disclosure Schedule sets forth a materially accurate and complete list of all of the leases, subleases and enjoys peaceful and undisturbed possession (consistent with historical use and other Contracts pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of which the Company and the or any of its Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications holds a leasehold or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions subleasehold estate or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such interest in real property, including but not limited to mining, exploration and surface rights (the “Company Leases”) and each parcel of real property in which the Company or any of its Subsidiaries is a lessee, sublessee, tenant, subtenant or occupant thereunder (the “Leased Real Property”). Section 3.19(b)(ii) of the Seller Disclosure Schedule sets forth an accurate and complete list of all material Company Leases (the “Material Company Leases”) and all material Leased Real Property (the “Material Leased Real Property”). None of the Material Company Leases has been assigned, subleased, amended or otherwise modified, except as set forth on Section 3.19(b)(ii) of the Seller Disclosure Schedule. Except as set forth on Section 3.19(b)(iii) of the Seller Disclosure Schedule, the Company or one of its Subsidiaries has good and valid leasehold title to the Material Leased Real Property, except the Real Property Leases.
free and clear of Encumbrances (bother than Permitted Encumbrances). Except as set forth in Section 3.19(b)(iv) Each of the Real Property Leases Seller Disclosure Schedule, (i) each Material Company Lease (A) constitutes a valid and binding obligation of, and is in full force and effect. Neither effect against, the Company nor any or the Subsidiary of the Company that is (a party thereto and, to the Knowledge of Seller, the Company, no other Person is) in default under any Real Property Leaseparties thereto, and no breach by (B) assuming such Company Lease is a valid and binding obligation of, and enforceable against, the other parties thereto, is enforceable against the Company or the Subsidiary of the Company that is a party thereto, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity) and (ii) none of the Company or its Subsidiaries or, to the Knowledge of the CompanySeller, any other Person) party thereto is, or is alleged in writing to be, in material breach or default, and no event or circumstance has occurred under any Real Property Lease which, if not remedied, would (whether with or without due notice or the passage lapse of time or both) result in such , would constitute a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary breach or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and default by the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending its Subsidiaries or, to the Knowledge of the CompanySeller, threatened proceeding which could any other party thereto or result in the material and adverse modification termination or cancellation thereof. No default cause or violation, permit the acceleration or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance other changes of any Permit. No Improvement, right or obligation or the operation loss of any benefit, under any Material Company Lease. Neither Seller nor any of its Affiliates has received any written notice, and Seller has no Knowledge, that any counterparty will cancel, terminate, fail to perform or maintenance thereof, violates any restrictive covenant, fail to renew its obligations under the Material Company Leases. Section 3.19(b)(v) of the Seller Disclosure Schedule identifies all Material Improvements of the Company or encroaches its Subsidiaries constituting or located on any property owned or leased by any other Person, the Leased Real Property and the parcel on which has had or would reasonably be expected to have a Material Adverse Effecteach such improvement is located.
(dc) Neither Except as set forth in Section 3.19(c) of the Company nor any Subsidiary ownsSeller Disclosure Schedule, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(ei) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither neither the Company nor any of its Subsidiaries has received written notice of is a party to any material special assessment relating to any lease, sublease, concession agreement, use and occupancy agreement, assignment or other Contract under which the Company Property or any of its Subsidiaries has granted any Person (other than the Company or any of its Subsidiaries) the right to enter, use or occupy any portion thereofof the Leased Real Property, and (ii) there are no such special assessment is pending ormaterial outstanding rights of first refusal, rights of first offer or options to purchase any of the interests of the Company or its Subsidiaries in any portion of the Leased Real Property. No Material Improvements of the Company or its Subsidiaries constituting or located on the Leased Real Property encroach on real property owned or leased by a Person other than the Company or its Subsidiaries.
(d) Except as set forth in Section 3.19(d) of the Seller Disclosure Schedule, (i) to the Knowledge of Seller, no coal reserves currently mined by the CompanyCompany or any of its Subsidiaries that are owned or leased by any of them are subject to the mining rights of any other Person with respect to such coal reserves, threatened(ii) none of Seller or any of its Affiliates has received a written notice or claim contrary to such effect, and (iii) the Company and its Subsidiaries, as the case may be, have sufficient rights to access and mine such coal reserves, to the extent required by the conduct of the Business as of the date hereof.
(e) Seller has delivered or made available to Purchaser true, complete and correct copies of the deeds, leases and other Contracts (including all modifications, amendments and supplements thereto and waivers thereunder) by which the Company or its Subsidiaries acquired the Owned Real Property or the Leased Real Property and copies of all title insurance policies, opinions, abstracts and surveys, in each case to the extent the same is in the possession or control of Seller or its Affiliates relating to the Owned Real Property or the Leased Real Property.
(f) The use and operation of the Owned Real Property and the Leased Real Property and the improvements and facilities located thereon in the conduct of the Business do not violate in any material respect any Law, covenant, condition, restriction, easement, license, permit or Contract.
(g) To the Knowledge of Seller, the lessors, sublessors or other counterparties under the Company Leases have good and marketable title to the Material Leased Real Property.
(h) To Seller’s Knowledge, set forth on Section 3.19(h)(i) of the Seller Disclosure Schedule is an accurate and complete list in all material respects of all material overriding royalty agreements held by the Company or its Subsidiaries or to which the Leased Real Property or the Owned Real Property is subject. Section 3.19(h)(ii) of the Seller Disclosure Schedule sets forth an accurate and complete list of the recoupable balance for each Company Lease as of July 31, 2015 (“Royalties Summary”), which Royalties Summary was prepared by Seller and its Affiliates in the normal and ordinary course of business, and to Seller’s Knowledge there are no disputes relating to the balances shown thereon.
(i) There are no pending or, existing material disputes between the Company or any of its Subsidiaries and any other party to the Knowledge any of the CompanyCompany Leases.
(j) Section 3.19(j) of the Seller Disclosure Schedule sets forth a materially accurate and complete list of exploration rights that either the Company or any of its Subsidiaries owns or holds.
(k) Except as set forth on Section 3.19(k) of the Seller Disclosure Schedule, threatened condemnation each deed or eminent domain proceedings with respect other Contract pursuant to which the Company or any material of its Subsidiaries holds any of the Material Owned Real Property has been validly recorded in the public records of each relevant county in which any portion of any Company such Material Owned Real Property.
Appears in 1 contract
Real Property. (a) Section 3.8(a) of the Company Disclosure Schedule 5.10(a) sets forth (A) a complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned which any member of the Company Group owns in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectivelysuch property, the “Owned PropertiesReal Property”) including for each Owned Real Property, the (i) street address (or another reasonable description if the physical address is unavailable), (ii) all size of the lot and improvements thereon (including the size of any building thereon), and (iii) current real property tax assessment, (B) all leases and interests in real property leased by subleases granting to any member of the Company Group a right to use or the Subsidiaries occupy any leased real property, and any amendments and modifications to such leases and subleases (individually, a “Real Property Lease” and collectively, the “Leases”) (such property, the “Leased Real Property LeasesProperty” and, together with the Owned PropertiesReal Property, being referred to herein individually as a “Company Property” and collectively as collectively, the “Company PropertiesReal Property”) as lessee or lessor, including a description and (C) for each parcel of each such Leased Real Property which Lease is either (including the name 1) not terminable by any member of the third Company Group party lessor thereto within one (1) year or lessee (2) requires payments by any member of the Company Group in excess of one hundred thousand dollars ($100,000) annually, the (i) street address, (ii) commencement and the expiration date of the lease or sublease lease, and all amendments thereto)(iii) rental rates. The applicable member of Company Group has (x) good, valid and the Subsidiaries have (i) good indefeasible fee simple title to all the Owned Property and (ii) a valid leasehold interest inReal Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever(except for Permitted Liens), except and (Ay) those Liens valid and subsisting leasehold interests in the Leased Real Property. Except for the Permitted Liens, or as set forth on Schedule 5.10(ain Section 3.8(a) and (B) Permitted Exceptionsof the Company Disclosure Schedule, no third party has any rights to occupy or otherwise use any portion of the Owned Real Property. No member of the Company Group has subleased any portion of the Leased Real Property to a third party. The Company Properties constitute Real Property is all interests in the real property currently used, occupied used or currently held for use by any member of the Company Group in connection with the business operation of the Business and constitutes all of the real property needed for the conduct of the Business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries Group as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each With respect to Owned Real Property, no member of the Company Group has received written notice of any Proceedings pending or threatened against any member of the Company Group challenging such member of the Company Group’s title to the Owned Real Property Property.
(c) With respect to each Leased Real Property, (i) each of the Leases has been duly authorized by the applicable member of the Company Group and executed and is in full force and effect. Neither ; (ii) no Company Group has received written notice of a currently outstanding default under any of the Company nor any Subsidiary is (Leases and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) event has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time time, or both) result in , would give rise to such a defaultdefault by the Company Group; and (iii) no Company Group has assigned, subleased, transferred, conveyed, mortgaged, deeded in trust or similarly encumbered any interest in any Lease.
(cd) The Company and the Subsidiaries have Each parcel of Real Property (i) has all certificates of necessary occupancy and material Permits of any Governmental Body necessary or useful other certificates and permits, municipal and otherwise, for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation occupancy of the Improvements and Real Property for the Business required to be obtained by any member of the Company Property or any drivewaysGroup, roads which occupancy and other means of egress certificates and ingress to permits are valid and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, ; and there is no pending or, (ii) does not have any outstanding written notice of violation or correcting work order for such Real Property issued to the Knowledge any member of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of Company Group from any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate Governmental Body or any portion thereof or interest thereininsurance company.
(e) Subject With respect to market limitations and each parcel of Real Property, (i) no Governmental Body or other Person has commenced the other events affecting exercise of the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in power of eminent domain or a similar power with respect to all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of or any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge part of the CompanyReal Property, threatened. There (ii) there are no pending or, to the Knowledge of the Company, threatened threatened, condemnation or eminent domain proceedings that affect any Real Property, and the Company Group has not received notice of the same, (iii) excluding Environmental Laws, the Company Group has not received written notice from any Governmental Body of a currently outstanding and uncured violation of any applicable Laws, which, individually or in the aggregate, would reasonably be expected to have an adverse effect in excess of fifty thousand dollars ($50,000), and, to the Knowledge of the Company, no such violation now exists, (iv) there are no pending or, to the Knowledge of the Company, threatened, fire, health, safety, building, zoning, tax certiorari or other land use regulatory proceedings, lawsuits or administrative actions relating to any portion of the Real Property, which, if adversely determined could materially and adversely affect the current use or occupancy thereof, and the Company Group has not received written notice of the same, and (v) all improvements constituting a material part of the Real Property (including structural and foundational elements, mechanical and electrical systems, HVAC, life safety systems, roofs, parking and loading areas), are in good operating condition and repair, ordinary wear and tear excepted, and have been generally maintained in accordance with normal industry practice.
(f) The Company Group has delivered to the Parent, to the extent the following are in the possession and control of any member of the Company Group, copies of each deed for each parcel of Owned Real Property vesting title to such parcel of Owned Real Property in the Company Group and all title insurance policies, all underlying title exception documents and surveys relating to the Owned Real Property.
(g) The Company Group has delivered to the Parent true, correct and complete copies of all Leases for the Leased Real Property. To the Company’s Knowledge, no party to any such Lease has exercised any termination rights with respect to any material portion of any Company Propertysuch Lease.
Appears in 1 contract
Real Property. (a) Schedule 5.10(aSection 3.8(a) of the Sellers’ Disclosure Schedules sets forth a true and complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee as of the date hereof by each of the Company Acquired Entities, which identifies such land by (x) owner and the Subsidiaries (individually, an “Owned Property” and y) tract number and/or parcel number (such property collectively, the “Owned PropertiesReal Property”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with . With respect to the Owned PropertiesReal Property, being referred to herein individually except as a “Company Property” and collectively as the “Company Properties”set forth on Section 3.8(a) as lessee or lessorof Sellers’ Disclosure Schedule, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) one or more of the Acquired Entities has good fee and valid title to all such Owned Property and (ii) a valid leasehold interest inReal Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of other than any nature whatsoever, except such Lien (A) those Liens set forth on Schedule 5.10(afor Taxes or governmental assessments, governmental charges or claims of payment (1) not yet due and payable or (2) being contested in good faith and for which adequate accruals or reserves have been established in accordance with GAAP, (B) Permitted Exceptions. The Company Properties constitute all interests which is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, or other similar Lien arising in real property currently usedthe ordinary course of business, occupied (C) for any obligation which is disclosed on the Projected Balance Sheet, (D) for any obligation which was incurred in the ordinary course of business since December 31, 2013, (E) disclosed by the title reports made available to Buyer in the Dataroom, or currently held (F) that would not reasonably be expected to materially impair the continued use or value of any Owned Real Property by the Acquired Entities for the Residential Business for its intended use in connection with and purpose, including any conditions, covenants, encroachments, easements, restrictions and other encumbrances that would not reasonably be expected to materially impair the business continued use or value of any Owned Real Property by the Acquired Entities for the Residential Business for its intended use and purpose(each of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildingsforegoing, fixtures and Improvements thereon are, to the Knowledge of the Company, a “Permitted Lien”) (i) in good operating condition, (ii) there are free from material structural defectsno outstanding reversion rights, Contracts, outstanding options or rights of first refusal or offer in favor of any third party to purchase, lease, occupy or otherwise utilize any Owned Real Property or any portion thereof or interest therein that would reasonably be expected to materially impair the continued use or value of any Owned Real Property affected thereby, (iii) neither Sellers nor any Acquired Entity have received written notice of any condemnation or eminent domain proceeding commenced or threatened with respect to any Owned Real Property, any portion thereof or Sellers’ interest therein that would reasonably be expected to materially adversely affect the use or value of the Owned Real Property affected thereby, (iv) none of the Owned Real Property has been leased, and (iiiv) none of the Owned Real Property has been licensed nor has any third party been granted any right to use or occupy all of any portion of any Owned Real Property, such that such license or occupancy would reasonably be expected to materially adversely affect the use or value of the Owned Real Property affected thereby.
(b) Section 3.8(b) of the Sellers’ Disclosure Schedules sets forth a true and complete list of each material lease, sublease or license and all amendments and modifications thereto (the “Real Property Leases”) under which any of the Acquired Entities use or occupy, or have the right to use or occupy, any real property at which the operations of the Acquired Entities are suitableconducted (the “Leased Real Property”), sufficient specifying in the case of each of the Real Property Leases, the date thereof, the current parties thereto, the dates of any amendments as well as the address or location and appropriate in all respects for their current and contemplated usesuse thereof. The Company has delivered to Purchaser trueTrue, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is have been delivered or otherwise made available to Buyer. Except as would not reasonably be expected to have, individually or in full force and effect. Neither the Company nor any Subsidiary is aggregate, a Material Adverse Effect, (and, to the Knowledge of the Company, no other Person isi) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any each Real Property Lease whichis valid, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company binding and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is (ii) no pending uncured default of a material nature on the part of any Acquired Entity or, to the Knowledge knowledge of Sellers, the landlord or other parties to such Real Property Lease exists thereunder, (iii) the Acquired Entities have a good and valid leasehold interest, subject to the terms of the CompanyReal Property Lease applicable thereto, in each parcel of Leased Real Property, free and clear of all Liens, except for Permitted Liens (and conditions, covenants, encroachments, easements, restrictions and other encumbrances that do not adversely affect the use of the Leased Real Property by the Acquired Entities for the Business), (iv) none of the Acquired Entities has (x) received written notice of, and, to the knowledge of Sellers there is no, condemnation proceeding threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that writing with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected respect to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate all or any portion thereof of the Leased Real Property, or interest therein.
(ey) Subject to market limitations and the other events affecting the geographical area in which received any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to default under any Company Real Property or any portion thereof, and no such special assessment is pending orLease and, to the Knowledge knowledge of Sellers, no event has occurred and no condition exists that, with notice or lapse of time, or both, would constitute a default by any Acquired Entity, as applicable, under any such leases and agreements, and (v) no portion of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect Leased Real Property is subleased to any material portion of any Company Propertythird party.
Appears in 1 contract
Real Property. (a) Section 3.20(a) of the Disclosure Schedule 5.10(a) sets forth a complete list of lists: (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description street address of each such parcel of Owned Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms date on which each parcel of the applicable lease) of, all Company Properties subject to Owned Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leaseswas acquired.
(b) Each Section 3.20(b) of the Disclosure Schedule lists: (i) the street address of each parcel of Leased Real Property Leases is in full force and effect. Neither Property, (ii) the Company nor any Subsidiary is (and, to the Knowledge identity of the Companylessor, no other Person islessee and current occupant (if different from lessee) in default under any of each such parcel of Leased Real Property LeaseProperty, (iii) the terms (referencing applicable renewal periods) and rental payment amounts (including all escalations) pertaining to each such parcel of Leased Real Property, and no breach by (iv) the Company (or, to the Knowledge current use of the Company, any other Person) has occurred under any each such parcel of Leased Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultProperty.
(c) Except as described in Section 3.20(c) or 3.16(a) of the Disclosure Schedule, there is no material violation of any Law (including, without limitation, any building, planning or zoning law) relating to any of the Real Property. The Company Seller has made available to the Purchaser true, legible and complete copies of each deed for each parcel of Owned Real Property and, to the Subsidiaries have extent available, for each parcel of Leased Real Property and all the title insurance policies, title reports, surveys, certificates of occupancy occupancy, environmental reports and material Permits audits, appraisals, permits, other Encumbrances, title documents and other documents relating to or otherwise affecting the Real Property, the operations of the Seller or any Governmental Body necessary Subsidiary thereon or useful for any other uses thereof. Either the current use Seller or a Subsidiary, as the case may be, is in peaceful and operation undisturbed possession of each Company parcel of Real Property, and any agreementthere are no contractual or legal restrictions that preclude or restrict the ability to use the Real Property for the purposes for which it is currently being used. All existing water, easement or sewer, steam, gas, electricity, telephone, cable, fiber optic cable, Internet access and other right from any other Personutilities required for the construction, necessary to permit the lawful use use, occupancy, operation and operation maintenance of the Improvements Real Property are adequate for the conduct of the Business as it has been and currently is conducted. There are no material latent defects or material adverse physical conditions affecting the Company Real Property or any drivewaysof the facilities, roads buildings, structures, erections, improvements, fixtures, fixed assets and personalty of a permanent nature annexed, affixed or attached to, located on or forming part of the Real Property. Neither the Seller nor any Subsidiary has leased or subleased any parcel or any portion of any parcel of Real Property to any other means of egress Person and ingress no other Person has any rights to and from the use, occupancy or enjoyment thereof pursuant to any Company Property and each such Permitlease, sublease, license, occupancy or other agreement, easement nor has the Seller or other right is any Subsidiary assigned its interest under any lease or sublease listed in full force and effect, and there is no pending or, to the Knowledge Section 3.20(b) of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of Disclosure Schedule to any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effectthird party.
(d) Neither Section 3.20(d) of the Company Disclosure Schedule sets forth a true and complete list of all leases and subleases relating to the Real Property and any and all ancillary documents (the "ANCILLARY LEASE DOCUMENTS") pertaining thereto (including, but not limited to, all amendments, modifications, supplements, exhibits, schedules, addenda and restatements thereto and thereof and all consents, including, without limitation, consents for alterations, assignments and sublets, documents recording variations, memoranda of lease, options, rights of expansion, extension, first refusal and first offer and evidence of commencement dates and expiration dates). With respect to each of such leases and subleases, none of the Seller nor any Subsidiary ownshas exercised or given any notice of exercise, holds, is obligated under nor has any lessor or is landlord exercised or received any notice of exercise by a party tolessor or landlord of, any option, right of first offer or right of first refusal contained in any such lease or other contractual sublease, including, without limitation, any such option or right pertaining to purchase, acquireexpansion, sellrenewal, assign extension or dispose of any real estate or any portion thereof or interest thereinrelocation (collectively, "OPTIONS").
(e) Subject There are no condemnation proceedings or eminent domain proceedings of any kind pending or, to market limitations and the other events affecting knowledge of the geographical area in which any Company Property is locatedSeller, threatened against the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesReal Property.
(f) Neither Except as set forth in Section 3.20(f) of the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending orDisclosure Schedule, to the Knowledge knowledge of the CompanySeller, threatened. There all the Real Property is occupied under a valid and current certificate of occupancy or similar permit, the transactions contemplated by this Agreement and the Ancillary Agreements will not require the issuance of any new or amended certificate of occupancy and there are no pending orfacts that would prevent the Real Property from being occupied by the Seller or any Subsidiary, as the case may be, after the Closing substantially in the same manner as occupied by the Seller or such Subsidiary immediately prior to the Knowledge Closing.
(g) The rental set forth in each lease or sublease of the CompanyLeased Real Property is the actual rental being paid, threatened condemnation and there are no separate agreements or eminent domain proceedings understandings with respect to the same.
(h) Each of the Seller or a Subsidiary, as the case may be, has the full right to exercise any material portion Options contained in the leases and subleases pertaining to the Leased Real Property on the terms and conditions contained therein and upon due exercise would be entitled to enjoy the full benefit of any Company Propertysuch Options with respect thereto.
(i) All waivers or amendments with respect to the Leased Real Property that are, or will be, required as a result of the transactions herein contemplated have been obtained or will be obtained by Closing.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a) SCHEDULE 3.7 sets forth a complete list and summary description of (i) all of the real property which is used in the Business of each of DBPC and interests in real propertyMDC, including without limitation, all land, buildings and other structures and improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries fixtures located on such land (individually, an “Owned Property” and collectively, the “Owned Properties”"Real Property"), and a description of each parcel of such land, and (ii) all real property and interests in real property leased by leases, subleases or other agreements which allow the Company use or occupancy of the Subsidiaries Real Property, or any portion thereof, or which give or grant any rights therein (individually, a “Real Property Lease” and collectively, the “"Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto"). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together true and correct copies of which (including all amendments or extensions thereto) have been delivered to MCSC, are in effect, and neither DBPC nor MDC is in material default thereunder and neither DBPC nor MDC has received or sent any notice of any default under or with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject respect to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting provision thereof. Other than the landlord's consent to any Person the right to purchase, or the right to use or occupy any such Company Property, except assignment required under the Real Property Leases.
(b) Each , there are no approvals or consents of the Real Property Leases is any persons or entities which are required in full force and effect. Neither the Company nor any Subsidiary is (and, order to the Knowledge of the Company, no other Person is) in default under assign any Real Property LeaseLeases. The Premises, as previously defined, or the use thereof, does not violate the material provisions of any applicable Environmental Laws (as defined in Section 3.11(c)(iv)), or the material provisions of any trade, criminal, building code, fire, health or safety or other governmental ordinances, orders or regulations and no breach by each of DBPC and MDC is in material compliance with all applicable laws, regulations, ordinances, orders, rules and restrictions relating to their respective use of the Company Premises. All structures and improvements located on the Premises are in workable and useable condition and repair (orexcepting ordinary wear and tear) and are suitable for the uses for which they were intended and are used. The operations conducted on any of the Premises, whether now or in the past, does not violate the rights of any Person with respect to such property or with respect to any other property. Neither DBPC, MDC nor the Stockholdrs have any knowledge of and have not received any notice in regard to the Knowledge foregoing and is not aware of the Company, any other Person) has occurred under any Real Property Lease state of facts or situation which, if not remedied, would (whether with or without notice or the passage of time or both) result in otherwise, would constitute such a defaultviolation.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Miami Computer Supply Corp)
Real Property. (a) Schedule 5.10(a4.26(a) sets forth a complete list contains the legal description and street address of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the any of its Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including includes the name of the third party lessor or lessee record title holder thereof (“Owned Real Property”) and a list of all ▇▇▇▇▇ recorded against the date Owned Real Property. With respect to each such parcel of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have Owned Real Property: (i) good the Company or a Subsidiary has good, valid and indefeasible title in fee title simple absolute to all each parcel of such Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property LeasesProperty, in each case case, free and clear of all Liens of any nature whatsoeverLiens, except (A) those Liens set forth on Schedule 5.10(a) and (B) other than Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defectsLiens, and (iii) are suitable, sufficient and appropriate in all respects except for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies installments of (i) all deeds, title reports and surveys for the Owned Properties and special assessments not yet delinquent; (ii) the Real Property Leases, together with Company or a Subsidiary has all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person land use and access (ingress and egress) rights required for the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each conduct of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effectBusiness, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation Proceedings, lawsuits or eminent domain proceedings with administrative actions relating to the Owned Real Property adversely affecting the current use or occupancy thereof; (iii) there are no leases, subleases, licenses, concessions or other agreements granting to any party or parties the right of use or occupancy of any portion of the Owned Real Property; (iv) there are no unrecorded interests encumbering any portion of the Owned Real Property including, without limitation, oil, gas or other mineral rights leases, easements, tenancies, licenses, occupancies, rights of possession claims, encroachments or prescriptive easements; and (v) there are no outstanding options or rights of first refusal to purchase the Owned Real Property, or any portion thereof or interest therein.
(b) Schedule 4.26(b) sets forth a list of all Leases to which the Company or a Subsidiary is a party (“Company Leases”). With respect to any material portion each Company Lease: (i) each Company Lease is valid, binding and in full force and effect; (ii) all rents and additional rents and other sums, expenses and charges due thereunder have been paid; (iii) the lessee has been in peaceable possession since the commencement of any the original term thereof; (iv) no waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; (v) there exist no default or event of default thereunder by the lessee; and (vi) there are no outstanding claims of breach or indemnification or notice of default or termination thereunder, in cases of each of clauses (i) through (vi), other than as would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. The Company Propertyor a Subsidiary holds the leasehold estate on the Company Leases free and clear of all Liens, except for the Permitted Liens and the Liens of mortgagees of the Real Property in which such leasehold estate is located.
Appears in 1 contract
Real Property. (a) Schedule 5.10(aSection 4.10(a) of the Disclosure Schedules sets forth a complete list each parcel of (i) all real property owned by Seller and interests used in real propertyor necessary for the conduct of the Business as currently conducted (together with all buildings, including fixtures, structures and improvements situated thereon and easements all easements, rights-of-way and other rights and privileges appurtenant thereto owned in fee by the Company and the Subsidiaries (individuallythereto, an “Owned Property” and collectively, the “Owned PropertiesReal Property”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectivelyincluding with respect to each property, the “Real Property Leases” and, together with the Owned Properties, being referred address location and use. Seller has delivered to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name Buyer copies of the third party lessor or lessee deeds and other instruments (as recorded) by which Seller acquired such parcel of Owned Real Property, and copies of all title insurance policies, opinions, abstracts and surveys in the date possession of the lease or sublease and all amendments thereto)Seller with respect to such parcel. The Company and the Subsidiaries have With respect to each parcel of Owned Real Property:
(i) Seller has good and valid fee title to all Owned Property and (ii) a valid leasehold interest insimple title, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (A) those Liens set forth on Schedule 5.10(a) Permitted Encumbrances and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business those Encumbrances set forth on Section 4.10(a)(i) of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, Disclosure Schedules;
(ii) are free from material structural defectsexcept as set forth in Section 4.10(a)(ii) of the Disclosure Schedules or in any Permitted Encumbrance, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company Seller has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications not leased or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation portion thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.; and
(diii) Neither the Company nor any Subsidiary ownsto Seller’s Knowledge, holdsthere are no unrecorded outstanding options, is obligated under rights of first offer or is a party to, any option, right rights of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate purchase such Owned Real Property or any portion thereof or interest therein.
(eb) Subject to market limitations Section 4.10(b) of the Disclosure Schedules sets forth each parcel of real property leased by Seller and the other events affecting the geographical area used in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably or necessary for the operation conduct of such Company Property and Improvements the Business as currently operated conducted (together with all rights, title and interest of Seller in and to leasehold improvements relating thereto, including adequate watersecurity deposits, storm reserves or prepaid rents paid in connection therewith, collectively, the “Leased Real Property”), and sanitary sewera true and complete list of all leases, gassubleases, electriclicenses, cable concessions and telephone facilities.other agreements (whether written or oral), including all amendments, extensions renewals, guaranties and other agreements with respect thereto, pursuant to which Seller holds any Leased Real Property (collectively, the “Leases”). Seller has delivered to Buyer a true and complete copy of each Lease. With respect to each Lease:
(fi) Neither except as set forth in Section 4.10(b) of the Company Disclosure Schedules, such Lease is valid, binding, enforceable, and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, whether considered in a proceeding at law or in equity, and Seller enjoys peaceful and undisturbed possession of the Leased Real Property, subject to Permitted Encumbrances; 37 Asset Purchase and Sale Agreement dated as of December 28, 2018 between Municipality of Anchorage and Chugach Electric Association, Inc.
(ii) To Seller’s Knowledge, Seller is not in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such a breach or default, and Seller has paid all rent due and payable under such Lease;
(iii) Seller has not received nor given any of its Subsidiaries has received written currently-effective notice of any material special assessment relating default or event that with notice or lapse of time, or both, would constitute a default by Seller under any of the Leases and, to the Knowledge of Seller, no other party is in default thereof, and no party to any Company Lease has exercised any termination rights with respect thereto;
(iv) Except as set forth in Section 4.10(b)(iv) of the Disclosure Schedules, Seller has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof; and
(v) Seller has not pledged, mortgaged or otherwise granted an Encumbrance on its leasehold interest in any Leased Real Property.
(c) Seller holds sufficient title in all easements, licenses, franchises and other interests in real property other than the Owned Real Property and Leased Real Property that are used in or necessary for the conduct of the Business as currently conducted (together with all of Seller’s equipment and fixtures situated thereon and all other rights and privileges appurtenances thereto, collectively, the “Other Real Property Interests”). Section 4.10(c) of the Disclosure Schedules contains a list of all material Other Real Property Interests. With respect to all Other Real Property Interests:
(i) Except as provided in Section 4.10(c) of the Disclosure Schedules, the Other Real Property Interests are valid, binding, enforceable, and in full force and effect, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, whether considered in a proceeding at law or in equity, and Seller enjoys peaceful and undisturbed possession of the rights or occupancy conferred by the Other Real Property Interests, subject to Permitted Encumbrances;
(ii) To Seller’s Knowledge, Seller is not in breach or default under any agreement evidencing or granting the Other Real Property Interests, and no event has occurred or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such special assessment is pending ora breach or default, and Seller has paid all consideration due and payable with respect to the Other Real Property Interests;
(iii) Seller has not received nor given any currently-effective notice of any default or event that with notice or lapse of time, or both, would constitute a default by Seller with respect to any of the Other Real Property Interests and, to the Knowledge of Seller, no other party is in default thereof; and 38 Asset Purchase and Sale Agreement dated as of December 28, 2018 between Municipality of Anchorage and Chugach Electric Association, Inc.
(iv) Seller has not subleased, sublicensed, assigned or otherwise granted to any Person the Company, threatened. There are no pending or, right to the Knowledge use or occupy any of the CompanyOther Real Property Interests or any portion thereof.
(d) Seller has not received any written notice of (i) violations of building codes or zoning ordinances or other governmental or regulatory Laws affecting the Real Property, (ii) existing, pending or threatened condemnation proceedings affecting the Real Property, or eminent domain proceedings (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which would reasonably be expected to adversely affect the ability to operate the Real Property as currently operated and in accordance with respect to Prudent Utility Practices. Neither the whole nor any material portion of any Company PropertyReal Property has been damaged or destroyed by fire or other casualty.
(e) The Real Property is sufficient for the continued conduct of the Business immediately after the Closing in substantially the same manner as conducted prior to the Closing and constitutes all of the real property necessary to conduct the Business as currently conducted.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Chugach Electric Association Inc)
Real Property. (a) Except for the Permitted Encumbrances, as set forth on Schedule 5.10(a) sets forth a complete list of (i) all real property and interests 3.6(a), or the requirements listed in real propertythe Title Commitment, including improvements thereon and easements appurtenant thereto owned in fee by the Company has good and marketable indefeasible fee simple title to the Subsidiaries (individuallyOwned Real Property and, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individuallyto Sellers’ Knowledge, a “Real Property Lease” legal, valid, binding and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid enforceable leasehold interest inin the Leased Real Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to Encumbrances by any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property LeasesBuyer Party.
(b) Each Except for the Permitted Encumbrances, the Blanket Liens that will be released as provided in Section 6.11, as set forth on Schedule 3.6(b):
(i) Except for matters that would not reasonably be expected to have a Sellers’ Material Adverse Condition, there are no Proceedings pending and brought by or, to Sellers’ Knowledge, threatened by, any third party which would reasonably be expected to result in a material change in the allowable uses of the Real Property;
(ii) The Company has not leased or otherwise granted a present or future right to possession or occupancy or use of all or any part of the Owned Real Property;
(iii) There are no outstanding options, rights of first offer or rights of first refusal to purchase, right to acquire or right to lease the Owned Real Property Leases is or, to Sellers’ Knowledge, the Leased Real Property or any portion thereof;
(iv) Except for matters that would not reasonably be expected to have a Sellers’ Material Adverse Condition, Sellers have delivered to the Buyer Parties true and complete copies of all Real Estate Leases, and in full force and effectcase of any oral Real Estate Lease, a summary of the material terms of such Real Estate Lease. Neither the Company nor any Subsidiary is (andnor, to Sellers’ Knowledge, the Knowledge of the Companylandlords, no other Person is) are in material breach or default under any Real Property LeaseEstate Lease that has not been cured, and no breach by the Company (or, to the Knowledge of the Company, any other Person) event has occurred under any Real Property Lease whichor circumstance exists that, if not remediedwith the delivery of notice, would (whether with or without notice or the passage of time or both) result in , would constitute such a default.breach or default or would permit the termination, modification or acceleration of rent under such Real Estate Lease;
(cv) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful Except for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event matters that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would not reasonably be expected to have a Sellers’ Material Adverse Effect.
Condition, there are no Proceedings (dincluding condemnation or eminent domain proceedings) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge Sellers’ Knowledge, threatened against all or any part of the CompanyReal Property;
(vi) Except for matters that would not reasonably be expected to have a Sellers’ Material Adverse Condition, threatened. There the Company has not received any written notice of (A) any material violation of any applicable zoning ordinance, building code, use or occupancy restriction, covenant, condition or restriction of record or any other violation of Applicable Law relating to the Real Property or the improvements thereon or (B) any material pending special assessments affecting all or any part of the Real Property (except as shown on the Title Commitment); and
(vii) To Sellers’ Knowledge, there are no pending orunrecorded material contracts, to leases, easements or other agreements, rights or claims of third parties affecting the Knowledge use, title, access to, occupancy or development of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Owned Real Property.
(c) Neither of the Sellers nor any Seller Company (directly or indirectly) owns or has any interest in or any rights to acquire, lease or otherwise use any land or other real property that (i) is situated within a 1-mile radius of the Landfill and (ii) would be reasonably expected to interfere with the Company’s or Buyer’s prospective ownership, use, operation or expansion of the Landfill.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a) 4.13 sets forth a complete list all of (i) all the real property and interests in real property, including improvements thereon and easements appurtenant thereto of the Business owned in fee by the Company and Sellers (the Subsidiaries (individually, an “"Owned Property” and collectively"). Except as set forth on Schedule 4.13, the “Owned Properties”), (ii) all real property Sellers have good and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee marketable title to all each parcel of Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens Liens, and title thereto is insurable at regular rates (except for a special $2,000 premium) by a reputable title insurance company licensed to do business in the State of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, Illinois other than (i) those reflected or reserved against in good operating condition, the Preliminary Balance Sheet; (ii) those reflected in any title reports or title insurance policies with respect to the Owned Property that are free from material structural defectslisted on Schedule 4.13, and copies of which have been previously provided to Buyer; (iii) imperfections of title, easements, pledges, charges, restrictions and encumbrances, including, without limitation, survey matters, landlord's liens, mechanics' liens, repairmen's liens and other similar liens, if any, that do not materially detract from the value of the property subject thereto or interfere with the manner in which it is currently being used in the Business or impair the operations of the Business; and (iv) taxes and general and special assessments not in default and payable without penalty or interest (liens of the type referred to in clauses (i) through (iv) above being hereinafter referred to as "Permitted Liens").
(b) Schedule 4.13 sets forth a list of all of the real property leases in effect as of the date hereof with respect to the Business under which the Sellers are suitablea lessee (collectively, sufficient and appropriate in all respects for their current and contemplated usesthe "Leased Property"). The Company has delivered Sellers have made available to Purchaser Buyer true, correct and complete copies of (i) all deedssuch leases, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with including all amendments, modifications or supplementsand renewals thereof. All such leases are valid, if anybinding and enforceable in accordance with their terms, thereto. The Company Properties and are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge effect as of the Companydate hereof and except as set forth on Schedule 4.13, may be assigned to Buyer without consent pursuant to their terms. There are no other Person is) in default existing defaults by Sellers beyond any applicable grace periods under any Real Property Leasesuch leases, and no breach by the Company Sellers have not received any notice of default, except, in either case, for defaults (or, to the Knowledge of the Company, any other Personfor which an applicable grace period has not expired) has occurred under any Real Property Lease which, if not remedied, which would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to [not] have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a4.11(a) sets forth a true and complete list of all the Owned Real Property, including the current record owner, full street address and legal description of each parcel comprising such Owned Real Property. With respect to each parcel of Owned Real Property:
(i) all real property Sellers have good, marketable and interests in real propertyinsurable indefeasible fee simple title, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverLiens, except for Permitted Liens;
(Aii) those Liens except as set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used4.11(a)(ii), occupied Sellers have not pledged, mortgaged, encumbered, leased, subleased, licensed or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation portion thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.;
(diii) Neither the Company nor any Subsidiary ownsthere are no outstanding options, holds, is obligated under rights of first offer or is a party to, any option, right rights of first refusal or other contractual agreements granting to any person or entity any right to purchase, acquire, sell, assign purchase or dispose lease the Owned Real Property (other than the right of any real estate Buyers pursuant to this Agreement) or any portion thereof or interest therein.;
(eiv) Subject Sellers have not received any written notice of any pending or threatened condemnation proceedings in the nature of eminent domain in connection with any parcel of the Owned Real Property;
(v) there are no agreements, orders, licenses, permits, conditions or other directives issued by a governmental authority which relate to market limitations and the other events affecting future use or require any change in the geographical area in which any Company Property is locatedpresent use or operations of the Owned Real Property;
(vi) to the Knowledge of Sellers, the Company current use and occupancy of the Owned Real Property and the Improvements operation of the Business as currently conducted thereon do not violate any applicable zoning law, easement, covenant, condition, restriction or similar provision in any instrument of record or other unrecorded agreement affecting the Owned Real Property;
(vii) all utilities currently servicing the Owned Real Property are sufficiently supplied properly installed, connected and operating, with all outstanding charges paid in all material respects with utilities full, and other services as reasonably necessary are sufficient for the operation of such Company Property and Improvements the Business as currently operated including adequate water, storm conducted; and
(viii) each parcel of land which constitutes the Owned Real Property is separate and sanitary sewer, gas, electric, cable and telephone facilitiesdistinct from any other tax lot allocated to any other parcel of land.
(fb) Neither Schedule 4.11(b) sets forth the Company nor any names of its Subsidiaries has received written notice the lessor, lessee, the address of any parcel of real property leased or used by Sellers as lessor or lessee. Sellers have delivered to Buyers a true and complete copy of each lease, sublease, amendment, extension, renewal, guaranty, license, concession or other agreement (collectively, the “Leases”) with respect to each such Leased Real Property, and in the case of any oral Lease, a written summary of the material special assessment relating terms of such Lease. Sellers do not lease any parcel of real estate other than the Leased Real Property.
(i) Sellers have not assigned, transferred, sublet, or granted any person the right to any Company use or occupy such Leased Real Property or granted any portion thereof, and no other security interest in such special assessment is pending or, to the Knowledge Lease or any interest therein.
(ii) Sellers shall terminate each of the Company, threatened. Leases at Closing and shall enter into the New Lease pursuant to Sections 2.8(b)(v) and 3.1(n).
(c) The Owned Real Property and the Leased Real Property constitute all parcels of real estate used in connection with the Business.
(d) There are no pending ordefects in the buildings, to improvements and structures or fixtures located in, on or at the Knowledge Real Property which would materially impair the conduct of the CompanyBusiness by Buyers immediately following the Closing. The mechanical, threatened condemnation or eminent domain proceedings with respect electrical, plumbing, HVAC and other systems servicing the Real Property are in good working order and repair, ordinary wear and tear excepted, and there are no defects in such systems which would reasonably be expected to any material portion impair the conduct of any Company Propertythe Business by the Buyers immediately following the Closing.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Real Property. (a) Schedule 5.10(a) 4.8 sets forth a complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”). Except as set forth on Schedule 4.8, (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the does not lease or sublease and all amendments thereto)any real property. The Company has good and the Subsidiaries have (i) good marketable fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Permitted Liens, and there are no covenants, deed restrictions, easements, leases, sub-leases, rights of occupancy or other Liens set forth on Schedule 5.10(a) that encumber the Owned Properties which would reasonably be expected to materially and (B) Permitted Exceptionsadversely affect the use and occupancy of any Owned Property as it is presently used and occupied by the Company. The Company Owned Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries as currently conducted and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser Buyer true, correct and complete copies of (i) all deeds, title reports reports, and surveys for the Owned Properties and (ii) in the Real Property Leasespossession of the Company. Except as set forth on Schedule 4.8, together with all amendments, modifications or supplements, if any, thereto. The Company the Owned Properties are not subject to and the Company is not obligated under any leases, rightsrights of first refusal, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right options to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates rights of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein, and no Person except the Company and its employees and agents occupy the Owned Property.
(eb) Subject to market limitations Seller and the other events affecting Company have all certificates of occupancy and Permits of any Governmental Authority necessary for the geographical area in which any Company Property is locatedcurrent use and operation of each Owned Property, and the Company Property and has complied with all material conditions of the Improvements are sufficiently supplied Permits applicable to them in all material respects with respects.
(c) All utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated (including adequate water, storm and sanitary sewer, gas, electricelectricity, cable trash removal, and telephone facilitiesservice) are available to and connected with each of the Owned Properties in sufficient quantities to adequately serve the same.
(fd) Neither the Company nor any of its Subsidiaries Seller has received any written notice of any material special assessment relating of, or to any Company Property or any portion thereofthe Company’s Knowledge, and no such special assessment condemnation proceeding is pending or, to the Knowledge Company’s Knowledge, threatened which would reasonably be expected to materially and adversely affect the use or occupancy of the Owned Property as currently used or occupied by the Company.
(e) Each Owned Property is (i) in material compliance with all applicable legal requirements, threatened. There are no pending orcovenants, to conditions, and restrictions affecting the Knowledge applicable portion of the CompanyOwned Property, threatened condemnation or eminent domain proceedings with respect and (ii) benefited by all easements and rights necessary to any material portion conduct business thereon as presently conducted, including easements for utilities, services, roadway and other means of any Company Propertyingress and egress.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all Seller owns the real property and interests indicated in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries Schedule 3.1(m) hereto (individually, an “Owned Property” and collectively, hereinafter referred to as the “Owned PropertiesReal Property”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each There is no real property leased by Seller and Subsidiaries other than in Aachen, Barcelona, Essen, Vierzon and Senlis (the last leased until 30th September 2004) (the “Leased Real Property”), as listed on Schedule 8.2.9(b). The Seller and the Subsidiaries use no other real property in connection with the operation of the Business other than the Owned Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Leased Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultProperty.
(c) Title: The Company Owned Real Property is fully owned by RÜTGERS Rail SpA and duly identified at the Subsidiaries have all certificates of occupancy appropriate Land Registries (“Conservatoria dei Registri Immobiliari”) according to the laws and material Permits regulations in force. Except as disclosed under Schedule 3.1(m) hereto, the Owned Real Property is free and clear of any Governmental Body necessary or useful for the current use mortgage, pledge, lien, encumbrances, privileges, prejudicial registrations, third parties’ rights, pending claims and operation of each Company Propertyliabilities in general, manifest and any agreementnon-apparent easements, easement obligations and/or burdens also connected to town-planning and/or building plans, or other right from any other Personsecurity interest. Except as disclosed under Schedule 3.1(m) hereto, necessary there are no outstanding options or rights of first refusal to permit purchase the lawful use and operation of the Improvements and the Company Owned Real Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effectinterest therein.
(d) Neither Building Permits and Zoning Procedure: Seller has applied for and validly obtained any and all material building permits for the Company nor existing buildings; to the Seller’s Knowledge, the Real Property has been built, in all respects, in compliance with any Subsidiary ownssuch building permits and, holdsas of the date hereof, is obligated under or is a party to, no such building permits have been challenged and/or no procedure shall have been commenced with the purpose to repeal any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest thereinbuilding permit.
(e) Subject Town-planning burdens: RÜTGERS Rail SpA, has paid and borne any primary or secondary town-planning burdens (“oneri di urbanizzazione primaria e secondaria”), assessed by and, due to market limitations and the local Municipality and/or other events public authorities and/or to the authorities involved in the issuance of the building permits. All said town-planning works affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied Seller have been realized in all material respects respects, in compliance with utilities all due provisions in force and other services as reasonably necessary for the operation of building permits concerning such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesworks.
(f) Neither the Company nor Certificates: Except as disclosed under Schedule 8.2.9 (f) hereto, Seller has obtained any of its Subsidiaries has received written notice of and all certificates required by applicable law provisions, as well as any material special assessment relating certificate, approval, consent, license, authorization or permit required by law to any Company opening and running in the Real Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.its respective business activities
Appears in 1 contract
Sources: Sale and Purchase Agreement (Westinghouse Air Brake Technologies Corp)
Real Property. (a) 5.12.1. Section 5.12.1 of the Disclosure Schedule 5.10(a) sets forth a complete list of (i) lists and describes briefly all real property that any of Climax and interests in its Subsidiaries owns. With respect to each such parcel of owned real property, including improvements thereon and easements appurtenant thereto owned in fee except as described by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name Section 5.12.1 of the third party lessor or lessee Disclosure Schedule:
5.12.1.1. the identified owner has good and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee marketable title to all Owned Property and (ii) a valid leasehold interest inthe parcel of real property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverSecurity Interest, easement, covenant, or other restriction, except (A) those Liens set forth on Schedule 5.10(a) for installments of special assessments not yet delinquent and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently usedrecorded easements, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defectscovenants, and (iii) are suitableother restrictions which do not materially impair the current use, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser trueoccupancy, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchasevalue, or the right to use or occupy any such Company Propertymarketability of title, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effectproperty subject thereto;
5.12.1.2. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the CompanySellers, threatened condemnation proceedings, lawsuits, or eminent domain proceedings administrative actions relating to the property or other matters affecting adversely the current use, occupancy, or value thereof;
5.12.1.3. the legal description for the parcel contained in the deed thereof describes such parcel fully and adequately, the buildings and improvements are located within the boundary lines of the described parcels of land, are not in violation of applicable setback requirements, zoning laws, and ordinances (and none of the properties or buildings or improvements thereon are subject to "permitted non-conforming use" or "permitted non-conforming structure" classifications), and do not encroach on any easement which may burden the land, and the land does not serve any adjoining property for any purpose inconsistent with the use of the land, and the property is not located within any flood plain or subject to any similar type restriction for which any permits or licenses necessary to the current use thereof have not been obtained;
5.12.1.4. all facilities have received all approvals of governmental authorities (including licenses and permits) required in connection with the ownership or current operation thereof and have been operated and maintained in accordance with applicable laws, rules, and regulations;
5.12.1.5. there are no leases, subleases, licenses, concessions, or other agreements, written or oral, granting to any party or parties the right of use or occupancy of any portion of the parcel of real property;
5.12.1.6. there are no outstanding options or rights of first refusal to purchase the parcel of real property, or any portion thereof or interest therein;
5.12.1.7. there are no parties (other than Climax and its subsidiaries) in possession of the parcel of real property, other than tenants under any leases disclosed in Section 5.12.1 of the Disclosure Schedule who are in possession of space to which they are entitled;
5.12.1.8. all facilities located on the parcel of real property are supplied with utilities and other services necessary for the operation of such facilities as presently used, including gas, electricity, water, telephone, sanitary sewer, and storm sewer, all of which services are adequate in all material respects in accordance with all applicable laws, ordinances, rules, and regulations and are provided via public roads or via permanent, irrevocable, appurtenant easements benefitting the parcel of real property, unless the lack of such access will not have a material adverse effect; and
5.12.1.9. except with respect to any unimproved land, each parcel of real property abuts on and has direct vehicular access to a public road, or has access to a public road via a permanent, irrevocable, appurtenant easement benefitting the parcel of real property, and access to the property is provided by paved public right-of-way with adequate curb cuts available.
5.12.2. Section 5.12.2 of the Disclosure Schedule lists and describes briefly all real property leased or subleased to any of Climax and its Subsidiaries. Section 5.12.2 of the Disclosure Schedule also identifies the leased or subleased properties for which title insurance policies are to be procured in accordance with Section 6.8.2 below. The Sellers have delivered to Team correct and complete copies of the leases and subleases listed in Section 5.12.2 of the Disclosure Schedule (as amended to date). With respect to each lease and sublease listed in Section 5.12.2 of the Disclosure Schedule, except as disclosed in Section 5.12.2 by the Disclosure Schedule:
5.12.2.1. the lease or sublease is legal, valid, binding, enforceable, and in full force and effect enforceable in accordance with its terms and conditions, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies;
5.12.2.2. the lease or sublease will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby enforceable in accordance with its terms and conditions, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the rights of creditors and except as enforceability may be limited by rules of law governing specific performance, injunctive relief or other equitable remedies;
5.12.2.3. none of Climax and its Subsidiaries nor, to the Sellers' Knowledge, any other party to the lease or sublease is in breach or default, and no event has occurred which, with notice or lapse of time, would constitute a breach or default or permit termination, modification, or acceleration thereunder;
5.12.2.4. no party to the lease or sublease has repudiated any material portion provision thereof;
5.12.2.5. there are no disputes, oral agreements, or forbearance programs in effect as to the lease or sublease;
5.12.2.6. with respect to each sublease, the representations and warranties set forth in subsections 5.12.2.1 through 5.12.2.5 above are true and correct with respect to the underlying lease;
5.12.2.7. neither Climax nor any Subsidiary has assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in the leasehold or subleasehold;
5.12.2.8. all facilities leased or subleased thereunder have received all approvals of governmental authorities (including licenses and permits) required in connection with the operation thereof and have been operated and maintained in all material respects in accordance with applicable laws, rules, and regulations;
5.12.2.9. all facilities leased or subleased thereunder are supplied with utilities and other services necessary for the operation of said facilities as presently used; and
5.12.2.10. the owner of the facility leased or subleased has good and marketable title to the parcel of real property, free and clear of any Company PropertySecurity Interest, easement, covenant, or other restriction, except for installments of special easements not yet delinquent and recorded easements, covenants, and other restrictions which do not impair the current use, occupancy, or value, or the marketability of title, of the property subject thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Team Inc)
Real Property. (a) Schedule 5.10(aSection 3.10(a) of the Seller Disclosure Schedules sets forth a true and complete list of all Real Property, together with tax parcel identification numbers and legal description for each of the Owned Real Property parcels, including (i) all real property of the Real Property, including improvements thereon, owned by Seller or the Industrial Wood Subsidiaries and interests in Relating to the Industrial Wood Business (the “Owned Real Property”); and (ii) all of the real property, including improvements thereon thereon, leased by Seller or the Industrial Wood Subsidiaries and easements appurtenant thereto owned in fee by Relating to the Company and the Subsidiaries Industrial Wood Business (individually, an “Owned Property” and collectively, the “Owned PropertiesLeased Real Property”), .
(iib) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually Except as a “Company Property” and collectively as the “Company Properties”disclosed on Section 3.10(a) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have Seller Disclosure Schedules: (i) good Seller or the applicable Industrial Wood Subsidiary has good, valid, and marketable fee simple title to all Owned Property Real Property, free and clear of all Liens, other than Permitted Liens; and (ii) Seller or the applicable Industrial Wood Subsidiary has a good and valid leasehold interest inin the Leased Real Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (Aother than Permitted Liens. Except as disclosed on Section 3.10(a) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and Seller Disclosure Schedules: (1) neither Seller nor the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company applicable Industrial Wood Subsidiary has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications leased or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchaseany interests in, or the right to use or occupy any such Company of the Real Property; (2) there are no outstanding options, except rights of first offer or rights of first refusal to purchase the Real Property Leases.
or any portion thereof or interest therein; (b3) Each of all leases and other documents in respect to the Real Property Leases is are in full force and effect. Neither effect and are the Company nor any valid and legal obligations of Seller or the applicable Industrial Wood Subsidiary is (and, to the Knowledge of Seller, the Companycounterparties thereto, except to the extent enforcement may be affected by Laws relating to bankruptcy, reorganization, insolvency and creditors’ rights and by the availability of injunctive relief, specific performance and other equitable remedies; (4) there are no other Person is) in default defaults by Seller or the applicable Industrial Wood Subsidiary under any lease or other documents in respect to the Real Property LeaseProperty, and no nor has Seller received any written notice alleging such breach by the Company (oror default, and, to the Knowledge of the CompanySeller, any other Person) no event has occurred under any Real Property Lease which, if not remediedwith the delivery of notice, would (whether with or without notice or the passage of time or both) result in , would constitute such a breach or default.
(c) The Company and , or permit the Subsidiaries have all certificates of occupancy and material Permits termination or modification of any Governmental Body necessary material term or useful for provision of, or acceleration of rent under, such Lease or other documents in respect to the current use Real Property; and operation (5) neither Seller nor any of each Company its Subsidiaries has received within the five-year period prior to the date of this Agreement written notice of any default under any restrictive covenants affecting the Owned Real Property, and there has not occurred any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or the giving of notice or both would become constitute such a default or violationunder any such restrictive covenants, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or each case except as would not reasonably be expected to have a have, individually or in the aggregate, an Industrial Wood Material Adverse Effect.
(dc) Neither With respect to Owned Real Property, Seller has provided to Purchaser, to the Company nor any extent Seller has such reasonably available, copies of the deeds and other instruments (as recorded) by which Seller or the applicable Industrial Wood Subsidiary ownsacquired such Real Property. With respect to the Leased Real Property, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right Seller has provided to purchase, acquire, sell, assign or dispose Purchaser copies of any real estate leases or any portion thereof or interest thereinsubleases affecting such Leased Real Property.
(ed) Subject Except as disclosed on Section 3.10(d), with respect to market limitations and the other events affecting the geographical area in which any Company Owned Real Property is located, the Company Property and the Improvements there are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is Proceedings pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the CompanySeller, threatened against or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings with respect proceedings.
(e) To the Knowledge of Seller, public and private utilities servicing the Real Property have adequate capacity to any material portion meet the utility requirements for the current use of any Company the Real Property, and where necessary, such capacity has been reserved for the Seller or applicable Industrial Wood Subsidiary.
Appears in 1 contract
Sources: Asset Purchase Agreement (Axalta Coating Systems Ltd.)
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all Seller does not own any real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, Business.
(b) With respect to the Knowledge of lease underlying the Company, Leased Property (the “Lease”): (i) Seller has delivered or made available to Buyer a true and complete copy of the Lease (including all amendments, modifications, supplements, exhibits, schedules, addenda and restatements thereto and thereof and all consents, including consents for alterations, assignments and sublets, documents recording variations, memoranda of lease, subordination, non-disturbance, and attornment agreements, rights of expansion, extension, first refusal and first offer and evidence of commencement dates and expiration dates); (ii) Seller’s possession and quiet enjoyment of the real property under the Lease is not currently being disturbed and Seller has all easements and rights necessary to conduct the Business in a manner consistent with past practices; (iii) to Seller’s Knowledge, there are no disputes with respect to or defaults under the Lease; (iv) to Seller’s Knowledge, the buildings, plants, improvements and structures, including, without limitation, heating, ventilation and air conditioning systems, roof, foundation and floors of the real property under the Lease, are in good operating conditioncondition and repair, subject only to ordinary wear and tear; (iiv) are free from material structural defectsSeller has not subleased, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications licensed or supplements, if any, thereto. The Company Properties are not subject otherwise granted to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or person the right to use or occupy the Leased Property or any such Company Property, except the Real Property Leases.
portion thereof (b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach than as contemplated by the Company Sublease); and (or, to the Knowledge of the Company, vi) Seller has not collaterally assigned or granted any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result security interest in such a defaultLease or any interest therein.
(c) The Company To Seller’s Knowledge, (i) all the Leased Property is occupied under a valid and current certificate of occupancy or similar permit, (ii) the transactions contemplated by this Agreement and the Subsidiaries have all certificates of occupancy and material Permits Transaction Documents will not require the issuance of any Governmental Body necessary new or useful for the current use and operation amended certificate of each Company Propertyoccupancy, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, (iii) subject to the Knowledge receipt of any necessary landlord consents to the Companyactions contemplated by this Agreement, threatened proceeding which could result there are no facts that would prevent the Leased Property from being occupied by Buyer after the Closing substantially in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased same manner as occupied by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, Seller immediately prior to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company PropertyClosing.
Appears in 1 contract
Sources: Asset Purchase Agreement (OncBioMune Pharmaceuticals, Inc)
Real Property. (a) Schedule 5.10(aNeither Doge nor any of its Subsidiaries owns, or since Inception, has owned, any real property.
(b) sets forth Section 5.18(b) of the Doge Disclosure Letter contains a true, correct and complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee leased or subleased by the Company and the Doge or one of its Subsidiaries (individually, an “Owned Property” and collectively, the “Owned PropertiesLeased Real Property”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee address thereof and the date of the lease or sublease and all amendments Leases related thereto). The Company and the Subsidiaries have (i) good fee title Doge has made available to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser TZUP true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any written leases, rights, options, subleases, licenseslicenses and occupancy agreements (including all written modifications, occupancy agreementsamendments, concessions or supplements, guaranties, extensions, renewals, waivers, side letters and other written agreements or arrangements, written or oral, granting to any Person relating thereto) for the right to purchase, or the right to use or occupy any such Company Property, except the Leased Real Property to which Doge or any of its Subsidiaries is a party (the “Leases.
(b) Each of the Real Property ”), and such deliverables comprise all Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, relating to the Knowledge of the Company, Leased Real Property. There are no other Person is) in default under any Real Property Lease, and no breach by the Company (or, oral arrangements or agreements with respect to the Knowledge of the Company, any other Person) has occurred under any Leased Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultProperty.
(c) The Company Each Lease (i) is a legal, valid, binding and enforceable obligation of Doge or its Subsidiary party thereto and, to the Subsidiaries have all certificates knowledge of occupancy and material Permits of any Governmental Body necessary or useful for Doge, the current use and operation of each Company Propertyother parties thereto, and any agreementas applicable, easement or other right from any other Personsubject to the Enforceability Exceptions, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right Lease is in full force and effect, (ii) has not been amended or modified except as reflected in the Leases made available to TZUP and there is no pending or, (iii) to the Knowledge knowledge of Doge, subject to securing the consents or approvals, if any, required under the Leases to be obtained from any landlord, lender or any other third party (as applicable), in connection with the execution and delivery of this Agreement by Doge or the consummation of the Companytransaction contemplated hereby by Doge, threatened proceeding which could result upon the consummation of the transactions contemplated by this Agreement, will entitle TZUP or its Subsidiaries to the use, occupancy and possession (in each case, subject to the terms of the respective Leases in effect with respect to Leased Real Property and the receipt of all required consents related thereto) of the premises specified in the material and adverse modification or cancellation thereof. No default or violation, or event that with Leases for the lapse of time or giving of notice or both would become a default or violation, has occurred purpose specified in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse EffectLeases.
(d) Neither Except as set forth on Section 5.18(d) of the Company nor Doge Disclosure Letter, no material default or material breach by (i) Doge or any Subsidiary owns, holds, is obligated under of its Subsidiaries or is a party to(ii) to the knowledge of Doge, any optionother parties thereto, right of first refusal or other contractual right to purchaseas applicable, acquire, sell, assign or dispose of presently exists under any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Leases. Neither the Company Doge nor any of its Subsidiaries has received written or, to the knowledge of Doge, oral notice of any material special assessment relating default or material breach under any Lease which has not been cured. To the knowledge of Doge, no event has occurred that, and no condition exists which, with notice or lapse of time or both, would constitute a material default or material breach under any Lease by Doge or any of its Subsidiaries or by the other parties thereto. Neither Doge nor any of its Subsidiaries has subleased to any Company Person or otherwise granted any Person the right to use or occupy any Leased Real Property, or any portion thereof, which is still in effect. Neither Doge nor any of its Subsidiaries has collaterally assigned or granted any other security interest in the Leased Real Property. Doge or its Subsidiaries have good and valid leasehold title to each Leased Real Property free and clear of Liens, other than Permitted Liens.
(e) Neither Doge nor any of its Subsidiaries has received any written notice that remains outstanding as of the date of this Agreement that the current use and occupancy of the Leased Real Property, or any portion thereof, and no such special assessment is pending orthe improvements thereon (i) are prohibited by any Lien, to the Knowledge Law or order other than Permitted Liens or (ii) are in material violation of any of the Companyrecorded covenants, threatened. There conditions, restrictions, reservations, easements or agreements applicable to such Leased Real Property.
(f) To the knowledge of Doge, the Leased Real Property is in good operating condition (ordinary wear and tear excepted), are no pending orsuitable in all material respects for the purposes for which they are presently being used and, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion each, Doge or one of its Subsidiaries has rights of ingress and egress to the Leased Real Property for operation of the business of Doge and its Subsidiaries in the ordinary course. To the knowledge of Doge, no condemnation proceeding is pending or threatened (in writing) which would preclude or impair the use of any Company Propertysuch property by Doge or its Subsidiaries for the purposes for which it is currently used.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a4.12(a) sets forth constitutes a complete and accurate list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the one of its Subsidiaries and used in connection with such entity’s business together with all improvements and fixtures located thereon and all easements, rights-of-way and other appurtenants thereto (individually, a “Real Property Lease” and collectively, the “Owned Real Property Leases” andProperty”).
(b) Except as set forth on Schedule 4.12(b), together with the respect to each Owned Properties, being referred to herein individually as a “Company Real Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have :
(i) the Company or one of its Subsidiaries has good and valid fee simple title to all the Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverLiens, except (A) those for Permitted Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, Liens that will be released at Closing;
(ii) there are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result condemnation, appropriation or expropriation proceedings (or negotiations regarding transfers in lieu thereof), lawsuits or administrative actions relating to any of the material and adverse modification Owned Real Property, the Facilities or cancellation any portion thereof. No default or violation, or event that with other legal matters adversely affecting the lapse current use, occupancy or value thereof;
(iii) there are no leases, subleases, licenses, concessions or other agreements, written or oral, granting to any party or parties the right of time use or giving of notice or both would become a default or violation, has occurred in the due observance occupancy of any Permit. No Improvement, or portion of the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.Owned Real Property;
(div) Neither the Company nor any Subsidiary owns, holds, is obligated under there are no outstanding options or is a party to, any option, right rights of first offer or rights of first refusal or other contractual right to purchase, acquirelease or otherwise gain title to the Owned Real Property, sell, assign or dispose of any real estate the Facilities or any portion thereof or interest therein; and
(v) neither the Company nor any of its Subsidiaries are in arrears with any outgoings of the UK Real Property (such outgoings including, but not limited to, uniform business rates, water rates and insurance premiums, and in the case of leasehold properties, rent and service charges).
(c) Except as set forth on Schedule 4.12(c), neither the Company nor any of its Subsidiaries leases, subleases, licenses or occupies any real property not owned by the Company or its Subsidiaries that is used or occupied by, or necessary for the conduct of the businesses of the Company and its Subsidiaries. Schedule 4.12(c) sets forth a complete and accurate list of all leases, subleases, concessions, licenses and other occupancy agreements relating to the Leased Real Property including all amendments, modifications, extensions, renewals, guarantees and other agreements with respect thereto (collectively, “Leases”) (whether written or oral), the name of each lessor, any sublessors, and the address for each such Leased Real Property. The Company has delivered to Buyer a true, correct and complete copy of each such Lease (and in the case of any oral Lease, a written summary of the material terms of such Lease).
(d) Except as set forth on the attached Schedule 4.12(d), with respect to each of the Leases:
(i) such Lease is (A) a legal, valid and binding obligation of the Company or one of its Subsidiaries, and to the Knowledge of the Company, of the other party thereto, (B) enforceable in accordance with its terms, subject only to bankruptcy, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally and principles of equity, and (C) in full force and effect;
(ii) assuming the Company Required Consents are obtained, the transactions contemplated by this Agreement do not require the consent of any other party to such Lease, will not result in a breach of or default under such Lease, will not give the landlord the right to terminate such Lease and will not otherwise cause such Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing;
(iii) the Company’s or its Subsidiary’s possession and quiet enjoyment of any such Lease has not been disturbed and, to the Knowledge of the Company, there are no disputes with respect to such Lease;
(iv) neither the Company, its Subsidiaries nor, to the Knowledge of the Company, the other party to such Lease, is in breach or default under such Lease, and, to the Knowledge of the Company, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, (A) could reasonably be expected to constitute a breach or default by the Company or its Subsidiaries, or permit the termination or modification of such Lease or acceleration of rent under such Lease or (B) could reasonably be expected to constitute a breach or default by any other party to such Lease;
(v) no security deposit or portion thereof deposited with respect to such Lease has been applied in respect of a breach or default under such Lease which has not been redeposited in full;
(vi) neither the Company nor any of its Subsidiaries owes, nor will owe in the future, any brokerage commissions or finder’s fees with respect to such Lease;
(vii) neither the Company nor any of its Subsidiaries has assigned, subleased, licensed or otherwise granted any other party the right to use or occupy such Leased Real Property or any portion thereof;
(viii) neither the Company nor any of its Subsidiaries has collaterally assigned or granted any security interest in such Lease or any interest therein;
(ix) to the Knowledge of the Company, there are no pending or threatened condemnation, appropriation or expropriation proceedings (or negotiations regarding transfers in lieu thereof), lawsuits or administrative actions relating to any of the Leased Real Property or any portion thereof, or other legal matters adversely affecting the current use, occupancy or value thereof; and
(x) to the Knowledge of the Company, there are no Liens on the leasehold or underlying fee interest that materially and adversely affect the current operation of the Company’s or its Subsidiaries’ businesses therein.
(e) Subject With respect to market limitations the Real Property:
(i) To the Knowledge of the Company, each parcel of the Real Property has adequate rights of way and the other events affecting the geographical area in which any Company Property is locatedaccess to public ways and all water, the Company Property sewer, sanitary sewer and the Improvements are sufficiently supplied in storm drain facilities, community services and all material respects with public utilities and other services as reasonably necessary for the operation of such the business of the Company Property and Improvements its Subsidiaries as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesconducted at such Real Property; and
(ii) Neither the Company nor any of its Subsidiaries has received any written notice of a material violation of any Law or Lien (other than Permitted Liens) with respect to the Real Property.
(f) Neither the Company nor any of its Subsidiaries is a party to any Contract or option to purchase any real property or interest in real property.
(g) The Company has made available to Buyer true, correct and complete copies of: (i) each deed in the Company’s or its Subsidiaries’ possession by which the Company or its Subsidiaries acquired title to the Owned Real Property; (ii) each policy of title insurance in effect in the Company’s possession and any title report in the Company’s possession with respect to the Owned Real Property and Leased Real Property, and (iii) the most recent survey or surveys in the Company’s or its Subsidiaries’ possession with respect to the Owned Real Property and Leased Real Property.
(h) To the Knowledge of the Company, there are no tax abatements or exemptions specifically affecting the Real Property. Neither the Company nor any of its Subsidiaries has received any written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or(and, to the Knowledge of the Company, threatened. There there are no pending or, to no) proposed material increase(s) in the Knowledge assessed valuation of the CompanyOwned Real Property or of any proposed public improvement assessments.
(i) Other than the Owned Real Property and the Leased Real Property, threatened condemnation neither the Company nor any of its Subsidiaries has any interest in or eminent domain proceedings existing or contingent obligation with respect to any material portion of any Company Propertyreal property.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wabash National Corp /De)
Real Property. (a) Schedule 5.10(a3.23 lists completely and correctly all Material Real Property owned by the Restricted Persons on the Closing Date and the address or location thereof, including the state in which such property is located.
(b) sets forth a complete list Subject to Permitted Liens, the Midstream Assets are covered by fee deeds, rights of (i) all real property and way, easements, leases, servitudes, permits, licenses, or other instruments or interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries property (individually, an “Owned Property” and collectively, the “Owned PropertiesMidstream Assets Real Property Interests”) in favor of the applicable Restricted Person, recorded or filed, as applicable and if and to the extent required in accordance with applicable law to be so recorded or filed, in the real property records where the real property covered thereby is located or with the office of the applicable Railroad Commission or the applicable Department of Transportation, except where the failure of the Midstream Assets to be so covered, or any such documentation to be so recorded or filed, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Change. Subject to Permitted Liens and except to the extent the failure would not reasonably be expected to result in a Material Adverse Change, the Midstream Assets Real Property Interests granted to the Restricted Persons that cover any Midstream Assets establish a continuous parcel for such Midstream Assets such that the applicable Restricted Persons are able to construct, operate, and maintain the Midstream Assets in, over, under, or across the land covered thereby in the same way that a prudent owner and operator would construct, operate, and maintain similar assets; provided, however, some of the rights of way, easements, leases, servitudes, permits, licenses, or other instruments or interests granted to a Restricted Person (or their predecessors in interest) by private parties and Governmental Authorities are (i) revocable at the right of the applicable grantor, (ii) subject to Liens in favor of third parties that have not been subordinated to the rights of way, easements, leases, servitudes, permits, licenses, or other instruments or interests, and (iii) subject to certain defects, limitations and restrictions; provided, further, none of the limitations, defects, and restrictions described in clauses (i), (ii) all real property and interests (iii) above, individually or in real property leased by the Company aggregate, (A) interfere with the ordinary conduct of business of any Restricted Person, or (B) materially detract from the value or the Subsidiaries use of the portion of the Systems which are covered.
(individuallyc) Subject to Permitted Liens, a “the Midstream Assets are covered by Midstream Assets Real Property Lease” Interests in favor of the Restricted Persons, except to the extent the failure to be so covered would not reasonably be expected to result in a Material Adverse Change. Subject to Permitted Liens and collectivelyexcept to the extent the failure would not reasonably be expected to result in a Material Adverse Change, the “Midstream Assets Real Property Leases” andInterests do not contain any restrictions that would prevent the Restricted Persons from constructing, together with operating and maintaining any Midstream Assets in, over, under, and across the Owned Propertiesland covered thereby in the same way that a prudent owner and operator would construct, being referred to herein individually as a “Company Property” operate, and collectively as maintain similar assets.
(d) To the “Company Properties”) as lessee or lessor, including a description knowledge of each such Real Property Lease (including the name any of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have Borrower, there is no (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to breach or event of default on the terms part of the applicable lease) of, all Company Properties subject any Restricted Person with respect to any Midstream Assets Real Property Leases, in each case free and clear of all Liens of Interests granted to such Restricted Person that covers any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating conditionMidstream Assets, (ii) are free from material structural defectsbreach or event of default on the part of any other party to any Midstream Assets Real Property Interests granted to a Restricted Person that covers any of the Midstream Assets, and (iii) are suitableevent that, sufficient and appropriate with the giving of notice or lapse of time or both, would constitute such breach or event of default on the part of a Restricted Persons with respect to any Midstream Assets Real Property Interests granted to such Restricted Persons that covers any of the Midstream Assets or on the part of any other party thereto, in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies the case of clauses (i) all deeds), title reports and surveys for the Owned Properties and (ii) and (iii) above, except for any breaches, defaults or events, individually or in the aggregate, which would not reasonably be expected to result in a Material Adverse Change. The Midstream Assets Real Property LeasesInterests granted to a Restricted Persons that cover any of the Midstream Assets (to the extent applicable) are in full force and effect in all material respects and are valid and enforceable against the applicable such Restricted Person in accordance with their terms (subject to the effect of any applicable bankruptcy, together with reorganization, insolvency, moratorium, fraudulent transfer, fraudulent conveyance or similar laws effecting creditors’ rights generally and subject, as to enforceability to the effect of general principles of equity) and all amendments, modifications or supplementsrental and other payments due thereunder, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person by the right to purchase, or applicable Restricted Persons have been duly paid in accordance with the right to use or occupy any such Company Property, except terms of the Midstream Assets Real Property Leases.
(b) Each Interests except to the extent that a failure of the Midstream Assets Real Property Leases is Interests to be in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) effect in default under any Real Property Lease, and no breach all material respects or a failure by the Company (orapplicable Restricted Person to have duly paid all payments due thereunder, to individually or in the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remediedaggregate, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would not reasonably be expected to have result in a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest thereinChange.
(e) Subject The Midstream Assets are located within the confines of the Midstream Assets Real Property Interests granted to market limitations the applicable Restricted Person and do not encroach upon any adjoining property, except to the other events affecting extent (i) the geographical area failure to be so located or (ii) the existence of any such encroachment would not reasonably be expected to result in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesa Material Adverse Change.
(f) Neither Except as would not reasonably be expected to result a Material Adverse Change, the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereofpersonal property used in the Restricted Persons’ Midstream Activities is in good repair, working order, and no such special assessment is pending orcondition, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Propertynormal wear and tear excepted.
Appears in 1 contract
Sources: Credit Agreement (Unit Corp)
Real Property. (a) Section 4.08(a) of the Seller Disclosure Schedule 5.10(a) sets forth a true and complete list identifying the address and owner of (i) all fee-owned real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually Company Subsidiary as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease this Agreement or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and be acquired pursuant to the terms Restructuring Agreement that is used in the operation or conduct of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except Business (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in such real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property LeasesSubsidiaries, together with the right, title and interest in all amendmentsbuildings, modifications or supplementsimprovements and fixtures thereon and all other appurtenances thereto, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company “Owned Property, except the Real Property Leases”).
(b) Each Section 4.08(b) of the Real Property Leases is in full force Seller Disclosure Schedule sets forth a true and effect. Neither complete list, as of the date of this Agreement, of all material real property of which the Company nor any or a Company Subsidiary is (anda lessee, to sublessee, licensee or occupant that is used in the Knowledge operation or conduct of the CompanyBusiness (such real property, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default“Leased Property”).
(c) The Company or a Company Subsidiary, as applicable, has good, valid and marketable fee title to all Owned Property, and the Subsidiaries Company or a Company Subsidiary, as applicable, has good and valid title to the leasehold estates in all Leased Property, in each case, free and clear of all Liens, except (i) Permitted Liens referenced in Section 4.07, (ii) Liens set forth in Section 4.08(c)(ii) of the Seller Disclosure Schedule, (iii) leases, subleases, licenses, occupancy or similar agreements set forth in Section 4.08(c)(iii) of the Seller Disclosure Schedule (true and complete copies of which have all certificates been made available to Purchaser prior to the date hereof), (iv) Liens that have been placed by any developer, landlord or other third party on any (A) Leased Property or (B) property over which Seller, the Company or any Company Subsidiary has easement rights, in each case, together with any subordination or similar agreements relating thereto, (v) zoning and building codes and other similar Laws, none of occupancy and which are violated in any material Permits of any Governmental Body necessary or useful for respect by the current use and operation or occupancy of each Company the Owned Property or Leased Property subject thereto, (vi) any conditions that would be shown by a current, accurate survey or physical inspection of any Owned Property, (vii) recorded or unrecorded easements, covenants, rights-of-way and any agreementother similar restrictions and (viii) Liens which will be released on the Closing Date. None of the items set forth in clauses (vi) and (vii), easement individually or other right from any other Personin the aggregate, necessary to permit materially impairs the lawful continued use and operation of the Improvements and the Company Owned Property or any drivewaysLeased Property to which they relate in the operation or conduct of the Business as presently conducted.
(d) As of the date of this Agreement, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no condemnation, expropriation or other proceeding in eminent domain, pending or, to the Knowledge knowledge of the CompanySeller, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violationthreatened, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of respect to any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate Owned Property or any portion thereof or interest therein.
(e) Subject Seller has made available to market limitations Purchaser, to the extent in Seller’s possession or control, for review true and complete copies of each lease, sublease, license or occupancy agreement in respect of a Leased Property (each, a “Lease”). Each Lease is a valid and binding obligation of the Company or Company Subsidiary party thereto, in full force and effect, and enforceable in accordance with its terms (subject, as to enforcement, to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally, general principles of equity and the other events affecting the geographical area discretion of courts in which any Company Property is locatedgranting equitable remedies). No written notice has been received by Seller, the Company Property and or any Company Subsidiary alleging that it is in breach or default in any material respect under any Lease, except to the Improvements are sufficiently supplied extent that any such breach or default, individually or in all the aggregate, would not be reasonably likely to result in a Seller Material Adverse Effect. To the knowledge of Seller, no party to any Lease (other than the Company or a Company Subsidiary, as applicable) is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respects with utilities and other services as respect thereunder, except to the extent that such breach or default, individually or in the aggregate, would not be reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitieslikely to result in a Seller Material Adverse Effect.
(f) Neither With respect to any Leased Property or an Owned Property, except for the leases, subleases, licenses, occupancy or similar agreements set forth in Section 4.08(c)(iii) of the Seller Disclosure Schedule, none of the Company nor any of its or the Company Subsidiaries has received written notice of any material special assessment relating subleased or granted to any Company Property third party any right to use and occupy all or any portion thereof, and no of such special assessment is pending or, to the Knowledge property. None of the Company, threatened. There are no pending or, to Company or the Knowledge of Company Subsidiaries has collaterally assigned or granted a security interest in any Lease that will not be released on the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company PropertyClosing Date.
Appears in 1 contract
Sources: Stock Purchase Agreement (Catalent Pharma Solutions, Inc.)
Real Property. (a) Sellers do not own any real property used or occupied by, or necessary for the conduct of, the Business.
(b) Schedule 5.10(a) sets forth 6.19 attached hereto contains a complete list of (i) all real property and interests in real propertyleased or subleased by Sellers which is used or occupied by, including improvements thereon and easements appurtenant thereto owned in fee by or necessary for the Company and the Subsidiaries (individually, an “Owned Property” and collectivelyconduct of, the “Owned Properties”), Business (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “"Leased Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto"). The Company and the Subsidiaries Sellers have (i) good fee title to all Owned Property and (ii) a valid leasehold interest inin each Leased Real Property, subject only to Permitted Liens. Sellers have previously delivered to Buyer's counsel complete and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms accurate copies of each of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, leases together with all amendments, modifications and other documents related thereto for the Leased Real Property (the "Leases"). With respect to each Lease: (i) the Lease is legal, valid, binding, enforceable and in full force and effect; (ii) neither Sellers nor, to Sellers' knowledge, any other party to the Lease is in breach or supplementsdefault and, if anyto Sellers' knowledge, thereto. The Company Properties no event has occurred which, with notice or lapse of time or both, would constitute such a breach or default or permit termination, modification or acceleration under the Lease; (iii) no party to the Lease has repudiated any provision thereof; (iv) there are no disputes, oral agreements or forbearance programs in effect as to the Lease; (v) the Lease has not been modified in any respect, except to the extent that such modifications are disclosed by the documents delivered to Buyer; and (vi) Sellers have not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in the Lease.
(c) With respect to the Leased Real Property: (i) the current use of such property and the operation of the Business and the Purchased Assets does not violate any instrument of record or Contract affecting such property or any applicable Legal Requirements in any material respect (without any fines or monetary Liabilities attached); (ii) all buildings, structures and other improvements located on such property, including all material components thereof, are, to Sellers' knowledge, structurally sound, in good operating condition and repair, subject only to any the provision of usual and customary maintenance provided in the ordinary course of business with respect to buildings, structures and improvements of like age and construction and all water, gas, electrical, steam, compressed air, telecommunication, sanitary and storm sewage lines and other utilities and systems serving such property are sufficient to enable the continued operation of such property as it is now operated in connection with the conduct of the Business and the Purchased Assets; (iii) except for the Leases, there are, to the Sellers' knowledge, no leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangementsContracts, written or oral, granting to any Person party or parties the right to purchase, or the right to of use or occupy occupancy of any such Company Property, except the Real Property Leases.
(b) Each portion of the Real Property Leases is parcel of such property except in full force favor of Sellers; and effect. Neither the Company nor any Subsidiary is (andiv) there are, to the Knowledge of the CompanySellers' knowledge, no parties (other Person isthan Sellers) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation possession of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesproperty.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (i) The LISN Real Property Schedule sets forth the address and lists and describes briefly all land, together with all buildings located thereon, owned by LISN or any of its Subsidiaries (the "LISN Owned Real Property"). With respect to each such parcel of LISN Owned Real Property and except as set forth on the LISN Real Property Schedule:
(a) Schedule 5.10(a) sets forth a complete list the identified owner has good and marketable title to the parcel of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens any Lien, easement, covenant, or other restriction as of any nature whatsoeverthe Closing Date, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.Encumbrances;
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the CompanyLISN, threatened condemnation condemnation, expropriation or other eminent domain proceedings proceedings, lawsuits, or administrative actions relating to the LISN Owned Real Property or other matters affecting adversely the current use, occupancy, or value thereof;
(c) the legal description for the parcel contained in the deed describes such parcel fully and adequately, the buildings and improvements are located within the boundary lines of the described parcels of land, are not in violation of applicable setback requirements, zoning laws, and ordinances (and none of the properties or buildings or improvements thereon are subject to "permitted non-conforming use" or "permitted non-conforming structure" classifications), and do not encroach on any easement which may burden the land, the land does not serve any adjoining property for any purpose inconsistent with the use of the land, and the property is not located within any flood plain or subject to any similar type restriction for which any permits or licenses necessary to the use thereof have not been obtained;
(d) all facilities have received all approvals of governmental authorities (including licenses and permits) required in connection with the ownership or operation thereof and have been operated and maintained in accordance with applicable laws, rules and regulations;
(e) there are no leases, subleases, licenses, concessions, or other agreements, written or oral, granting to any party or parties the right of use or occupancy of any portion of the parcel of LISN Owned Real Property, other than tenants under any leases disclosed in the LISN Real Property Schedule who are in possession of space of which they are entitled;
(f) there are no outstanding options or rights of first refusal to purchase the parcel of LISN Owned Real Property, or any portion thereof or interest therein;
(g) there are no parties (other than LISN) in possession of the parcel of LISN Owned Real Property, other than tenants under any leases disclosed in the LISN Real Property Schedule who are in possession of space of which they are entitled;
(h) all facilities located on the parcel of LISN Owned Real Property are supplied with utilities and other services necessary for the operation of such facilities, including gas, electricity, water, telephone, sanitary sewer, and storm sewer, all of which services are adequate in accordance with all applicable laws, ordinances, rules and regulations and are provided via public roads or via permanent, irrevocable, appurtenant easements benefitting the parcel of LISN Owned Real Property; and
(i) each parcel of LISN Owned Real Property abuts on and has direct vehicular access to a public road, or has access to a public road via a permanent, irrevocable, appurtenant easement benefitting the parcel of real property, and access to the property is provided by paved public right-of-way with adequate curb cuts available.
(ii) The LISN Real Property Schedule attached hereto sets forth a list of all of the leases, subleases and licenses ("LISN Leases") of real property (the "Leased Real Property"), including the address of the LISN Leased Real Property, in which LISN or any of its Subsidiaries has a leasehold, subleasehold or licensed interest, other than any lease which may terminated by either party without liability to the other on less than 90 days notice or involving aggregate annual rentals of less than $50,000, not otherwise involving any material liability and the termination of which would not have a Material Adverse Effect. LISN or such Subsidiary holds a valid and existing leasehold, subleasehold or license interest under each of the LISN Leases. With respect to each LISN Lease listed on the attached LISN Real Property Schedule, neither LISN, any material portion of its Subsidiaries, nor, to the Knowledge of LISN, any Company other party to the LISN Lease is in breach or default under the LISN Lease, and no event has occurred or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such a breach or default or permit the termination, modification, or acceleration of rent under the LISN lease, there are no disputes, oral agreements, or forbearance programs in effect as to such LISN Lease and neither LISN nor any of its Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in the LISN Lease. Except for the LISN Leased Real Property, and the LISN Owned Real Property, there is no real property which is leased or otherwise used in LISN's business.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Natg Holdings LLC)
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all real property 4(j)(i) of the Disclosure Schedule sets forth the address and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such parcel of Owned Real Property Lease (including which is material to the name business of the third party lessor or lessee and the date Company. With respect to each parcel of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest inReal Property, and enjoys peaceful except for matters that would not, individually or in the aggregate, have a Material Adverse Effect:
(A) the Company has good and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) ofmarketable title, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverLiens, except (A) those Liens set forth on Schedule 5.10(a) and Permitted Encumbrances;
(B) Permitted Exceptions. The Company Properties constitute all interests except as set forth in real property currently used, occupied or currently held for use in connection with the business §4(j)(i)(B) of the Company and the Subsidiaries and which are necessary for the continued operation of the business of Disclosure Schedule, the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications not leased or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation portion thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.;
(dC) Neither the Company nor any Subsidiary ownsthere are no outstanding options, holds, is obligated under rights of first offer or is a party to, any option, right rights of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate purchase such Owned Real Property or any portion thereof or interest therein.;
(eD) Subject there are no parties (other than the Company) in possession of the parcel of Owned Real Property, other than tenants under any leases disclosed in §4(j)(i)(D) of the Disclosure Schedule who are in possession of space to market limitations and which they are entitled; and
(E) all facilities located on the other events affecting the geographical area in which any Company parcels of Owned Real Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated facilities, including adequate electricity, water, storm telephone all of which services are adequate and sanitary sewer, gas, electric, cable and telephone facilitiesare provided via public roads or via appurtenant easements benefiting the parcels of Owned Real Property.
(fii) Neither 4(j)(ii) of the Disclosure Schedule sets forth the address of each parcel of Leased Real Property which is material to the business of the Company nor (“Material Leases”) and a true and complete list of all Material Leases for each such parcel of Leased Real Property. The Company has made available to Buyer a true and complete copy of each Material Lease document. With respect to each of the Material Leases listed in §4(j)(ii) of the Disclosure Schedule and except for matters that would not, individually or in the aggregate, have a Material Adverse Effect:
(A) each such Material Lease is legal, valid, binding, enforceable, and in full force and effect;
(B) each such Material Lease will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by this Agreement;
(C) the Company is not in breach or default under such Material Lease, and no event has occurred which, with notice or lapse of time, would constitute a breach or default or permit termination, modification, or acceleration thereunder;
(D) no other party to such Material Lease has repudiated any provision thereof;
(E) all facilities leased or subleased under such Material Lease have received all approvals of its Subsidiaries Governmental Authorities (including Permits) required in connection with the operation thereof and have been operated and maintained in accordance with applicable Laws; and
(F) all facilities leased or subleased under such Material Leases are supplied with utilities and other services necessary for the operation of such facilities, including electricity, water, telephone all of which services are adequate and are provided via public roads or via appurtenant easements benefiting the parcel of Leased Real Property.
(iii) The Company has not received written notice of any material special assessment relating claims or disputes which challenge the rights of the Company to any Company Property use, or any portion thereof, and no such special assessment is pending or, allege a breach or default of agreements granting to the Knowledge of Company rights to pipeline easements, right-of-way, licenses and land use Permits (the Company“Pipeline Rights”), threatened. There are no pending orwhich claims or disputes, to breaches or defaults would, individually or in the Knowledge of the Companyaggregate, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Propertyhave a Material Adverse Effect.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Copano Energy, L.L.C.)
Real Property. (a) Schedule 5.10(a4.10(a) sets forth a complete list of (i) lists all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” owned by a USCC Entity and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee principally used or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business USCC Systems in the USCC Service Area, and specifies the address and/or legal description sufficient to identify the property and contains a reasonable description of the Company use of each property. With respect to each parcel of owned Real Property included in the USCC Assets, except as set forth on Schedule 4.10(a):
(i) the applicable USCC Entity has good title to the parcel of Real Property, free and clear of all Liens, except for Permitted Liens;
(ii) except as set forth on Schedule 4.10(b), there are no leases, subleases, collocation agreements, licenses, concessions, or other agreements to which a USCC Entity is a party and which relate to the Subsidiaries as the business is currently conducted. All operation of the Company Properties and buildings, fixtures and Improvements thereon areUSCC Systems in the USCC Service Areas or, to the Knowledge of the CompanyUSCC, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, collocation agreements, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oralto which any USCC Entity is not a party, granting to any Person person the right of use or occupancy of any portion of the parcel of Real Property;
(iii) there are no outstanding options or rights of first refusal to purchasepurchase the parcel of Real Property, or any portion thereof or interest therein;
(iv) to the Knowledge of USCC, the applicable USCC Entity has physical and legal ingress and egress to and from such parcel; and
(v) no USCC Entity has received any written notice of, and USCC has no Knowledge of, any material non-compliance with applicable building codes, zoning regulations, occupational health and safety Laws or any other Laws, applicable to such parcel or the applicable USCC Entity's use or occupancy thereof.
(b) Schedule 4.10(b) lists all Real Property leases and occupancy and/or use agreements (together with any amendments thereto) with respect to which a USCC Entity is tenant, lessee, licensee or grantee (the "Real Property Leases") and which cover Real Property principally used, or held for use, in connection with the operation of USCC Systems in the USCC Service Area (the "Leased Property"). USCC has made available to AWS complete and correct copies of each of the Real Property Leases (together with any subleases granted with respect to the Real Property covered by the Real Property Leases). Each Real Property Lease that has not expired in accordance with its terms is legal, valid, binding and enforceable against the applicable USCC Entity in accordance with its terms, except to the extent enforcement may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and similar Laws of general applicability affecting the rights of creditors and general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). Neither the USCC Entity party to any Real Property Lease nor, to the Knowledge of USCC, any other party thereto is in default, violation or breach of any material term of such Real Property Lease and no USCC Entity has received any written notice of default thereunder. Except as set forth on Schedule 4.10(b), no USCC Entity has subleased, licensed or otherwise granted the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor leased by any Subsidiary is (and, USCC Entity or any portion thereof to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of No improvements on any Governmental Body necessary or useful for the current use and operation of each Company PropertyReal Property owned by any USCC Entity encroach upon adjoining real estate, and any agreementall such improvements have been constructed in conformity with all "setback" lines, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads easements and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violationrestrictions, or event rights of record, that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased have been established by any other Personapplicable building or zoning ordinances, except those encroachments and violations which has had or would not reasonably be expected to have a Material Adverse Effect.
(d) Neither interfere in any material respect with the Company nor any Subsidiary ownsuse, holds, is obligated under occupancy or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements the USCC Assets as currently operated including adequate waterused, storm and sanitary sewer, gas, electric, cable and telephone facilitiesoccupied or operated.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (United States Cellular Corp)
Real Property. (aSchedule 4(z) Schedule 5.10(a) sets forth contains a complete and correct list of all the real property; leasehold interests; fee interests; oil, gas and other mineral drilling, exploration and development rights; royalty, overriding royalty, and other payments out of or pursuant to production; other rights in and to oil, gas and other minerals, including contractual rights to production, concessions, net profits interests, working interests and participation interests; any other contractual rights for the acquisition or earning of any of such interests in the real property; facilities; fixtures; equipment that (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto are leased or otherwise owned in fee or possessed by the Company and or any of the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”)Subsidiaries, (ii) in connection with which the Company or any of the Subsidiaries has entered into an option agreement, participation agreement or acquisition and drilling agreement or (iii) the Company or any of the Subsidiaries has agreed to lease or otherwise acquire or may be obligated to lease or otherwise acquire in connection with the conduct of its business (collectively, including any of the foregoing acquired after the date of this Agreement, the “Real Property”), which list identifies all real property of the Real Property and interests in real property leased by specifies which of the Company or the Subsidiaries (individuallyleases, owns or possesses each of the Real Properties or will do so upon consummation of the Purchases. Schedule 4(z) also contains a “complete and correct list of all leases and other agreements with respect to which the Company or any of the Subsidiaries is a party or otherwise bound or affected with respect to the Real Property, except easements, rights of way, access agreements, surface damage agreements, surface use agreements or similar agreements that pertain to Real Property Lease” and collectively, that is contained wholly within the boundaries of any owned or leased Real Property otherwise described on Schedule 4(z) (the “Real Property Leases” and”). Except as set forth in Schedule 4(z), together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name one of the third party lessor or lessee Subsidiaries is the legal and the date equitable owner of a leasehold interest in all of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest inReal Property, and enjoys peaceful possesses good, marketable and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) ofdefensible title thereto, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(aother than Permitted Liens) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with other matters affecting title to such leasehold that could impair the business ability of the Company and or the Subsidiaries and which are necessary for to realize the continued operation benefits of the business rights provided to any of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) them under the Real Property Leases. Except as set forth in Schedule 4(z), together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is are valid and in full force and effecteffect and are enforceable against all parties thereto. Neither Except as set forth in Schedule 4(z), neither the Company nor any Subsidiary is (andof the Subsidiaries nor, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company’s knowledge, any other Person) party thereto is in default in any material respect under any of such Real Property Leases and no event has occurred under any Real Property Lease which, if not remedied, would (whether which with or without the giving of notice or the passage of time or both) result in both could constitute a default under, or otherwise give any party the right to terminate, any of such a default.
(c) The Company and Real Property Leases, or could adversely affect the Subsidiaries have all certificates of occupancy and material Permits of Company’s or any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements Subsidiaries’ interest in and title to the Company Real Property subject to any of such Real Property Leases. No Real Property Lease is subject to termination, modification or any drivewaysacceleration as a result of the transactions contemplated hereby or by the other Transaction Agreements. Except as set forth in Schedule 4(z), roads and other means all of egress and ingress to and from any Company the Real Property and each such Permit, agreement, easement or other right is Leases will remain in full force and effecteffect upon, and permit, the consummation of the transactions contemplated hereby (including the granting of leasehold mortgages). The Real Property is permitted for its present uses under applicable zoning laws, are permitted conforming structures and complies with all applicable building codes, ordinances and other similar Laws. Except as set forth on Schedule 4(z), there is are no pending oror threatened condemnation, eminent domain or similar proceedings, or litigation or other proceedings affecting the Real Property, or any portion or portions thereof. Except as set forth on Schedule 4(z), there are no pending or threatened requests, applications or proceedings to alter or restrict any zoning or other use restrictions applicable to the Knowledge Real Property that would interfere with the conduct of the Company’s or any of the Subsidiaries’ businesses as conducted or proposed to be conducted proposed to be conducted at the time this representation is made. Except as set forth on Schedule 4(z), threatened proceeding which could result in there are no restrictions applicable to the material and adverse modification Real Property that would interfere with the Company’s or cancellation thereof. No default any Subsidiary’s making an assignment or violationgranting of a leasehold or other mortgage to the Buyers as contemplated by the Mortgages, including any requirement under any Real Property Leases requiring the consent of, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose lessor of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Real Property.
Appears in 1 contract
Real Property. (a) Schedule 5.10(aSection 4.9(a)(i) of the Company Disclosure Schedules sets forth a complete list the street address (or, in the case of non U.S. real property, the land title details (ior similar registered property reference), if any) of all real property in which any Company Entity has an ownership interest (together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectivelythereto, the “Owned PropertiesReal Property”), (ii) all real property . Each Company Entity has good and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good marketable indefeasible fee simple title to all its respective Owned Property and (ii) a valid leasehold interest inReal Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Encumbrances other than Permitted ExceptionsEncumbrances. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, Companies have delivered to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct Buyers accurate and complete copies of (i) all deedsdeeds and other instruments (as recorded) by which the Company Entities acquired their respective interests in the Owned Real Property; (ii) all title reports, title land registry certificates (if any), surveys, zoning reports and surveys for title policies with respect to the Owned Properties Real Property; and (iii) all agreements granting purchase options, rights of first offer or rights of first refusal in favor of any other Person with respect to the Owned Real Property, in each case, to the extent such documents are in the possession or control of the Company Entities. Other than as set forth on Section 4.9(a)(i) of the Company Disclosure Schedules, there are no outstanding options, rights of first offer or rights of first refusal to purchase any Owned Real Property or any portion thereof or interest therein. No Company Entity is party to any agreement or option to purchase any real estate or interest therein.
(b) Section 4.9(b)(i) of the Company Disclosure Schedules sets forth an accurate and complete description (by street address of the subject leased real property, the date of the lease, sublease, license or other occupancy right and the name of the parties thereto and, in the case of non-U.S. leased property, the relevant land title details (or similar registered property reference), if any (the “Leases”)) of all land, buildings, structures, fixtures, improvements and other interests in real property that is leased or otherwise occupied (but not owned) by any Company Entity (the “Leased Real Property”). Each Company Entity holds valid leasehold or subleasehold interests in its respective Leased Real Property, free and clear of any Encumbrances other than Permitted Encumbrances. Each Lease is legal, valid, binding, enforceable and in full force and effect. The Companies have delivered to the Buyers accurate and complete copies of (i) all Leases relating to the Leased Real Property, and in the case of any oral Lease, a summary of the material terms of such Lease and (ii) all title reports, zoning reports, surveys and title policies in the possession or control of the Company Entities with respect to the Leased Real Property LeasesProperty. None of the Company Entities is in breach or default under such Lease, together and no event has occurred or circumstance exists which, with all amendmentsthe delivery of notice, modifications the passage of time or supplementsboth, if anywould constitute such a breach or default, theretoor permit the termination, modification or acceleration of rent under such Lease. The Company Properties Entities’ possession and quiet enjoyment of their respective Leased Real Property under such Lease has not been disturbed and, to the Knowledge of the Companies, there are not subject no disputes with respect to such Lease. With respect to each such Lease, none of the Company Entities has exercised or given any leasesnotice of exercise of, rightsnor has any lessor or landlord exercised or given any notice of exercise by such party of, optionsany option, subleasesright of first offer or right of first refusal contained in any such Lease. The rental rate set forth in each Lease of the Leased Real Property is the actual rental rate being paid, licenses, occupancy agreements, concessions or other and there are no separate agreements or arrangementsunderstandings with respect thereto. Each lease of the Leased Real Property grants the tenant or subtenant under the Lease the exclusive right to use and occupy the demised premises thereunder.
(c) Except as set forth on Section 4.9(c) of the Company Disclosure Schedules, written (i) the Company Entities are in possession of their respective Owned Real Property and Leased Real Property and (ii) to the Knowledge of the Companies, there are no contractual or orallegal restrictions that preclude or restrict the ability of any Company Entity to use such Owned Real Property or Leased Real Property for the purposes for which it is currently being used. Except as set forth on Section 4.9(c) of the Company Disclosure Schedules, granting none of the Company Entities has leased, subleased, licensed or otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the portion of their respective Owned Real Property Leases.
(b) Each of the or Leased Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither To the Knowledge of the Companies, all buildings, structures, fixtures and other improvements included in the Owned Real Property or Leased Real Property (collectively, the “Improvements”) are in material compliance with all applicable Laws. To the Knowledge of the Companies, no part of any Improvement encroaches on, or otherwise conflicts with the property rights of any Person in and to any real property not included in the Owned Real Property or Leased Real Property, and there are no buildings, structures, fixtures or other improvements primarily situated on adjoining property which encroach on any part of the Owned Real Property or Leased Real Property, or otherwise conflict with the property rights of any Company Entity. Each parcel of Owned Real Property and Leased Real Property (i) abuts on and has direct vehicular access to an improved public road or has access to an improved public road via a permanent, irrevocable, appurtenant easement improved with a road benefiting such parcel of Owned Real Property or Leased Real Property and comprising a part of the Owned Real Property or Leased Real Property and (ii) is supplied with public or quasi-public utilities and other services appropriate for the operation of the Improvement located on such parcel and the operation of the Company nor any Subsidiary ownsEntities’ businesses thereon. To the Knowledge of the Companies, holdsthere is no existing, is obligated under proposed or is a party to, any option, right of first refusal threatened eminent domain or other contractual right to purchase, acquire, sell, assign public acquisition Proceeding that would result in the taking of all or dispose any part of any real estate Owned Real Property or Leased Real Property or that would prevent or hinder the continued use and enjoyment of any portion thereof Owned Real Property or interest thereinLeased Real Property as heretofore used by any Company Entity.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to To the Knowledge of the CompanyCompanies, threatened. There are no pending or, to the Knowledge none of the Company, threatened condemnation or eminent domain proceedings with respect to Improvements are in any material portion respect not in good operating condition and repair or unsuitable for their purpose (ordinary wear and tear excepted). The Improvements are suitable for the purposes for which they are being used by the Company Entities and have been maintained in accordance with normal industry practice. The Owned Real Property and the Leased Real Property constitutes all such property used in or necessary to conduct the businesses of any the Company PropertyEntities.
Appears in 1 contract
Real Property. (ai) Schedule 5.10(a3.7(a) sets forth a true and complete list of all Real Property owned, leased, licensed or otherwise held, controlled or used by the Company, whether of record or beneficially, and such Schedule (i) all real property accurately and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by completely describes each portion of the Company and the Subsidiaries (individually, an “Owned Real Property” and collectively, the “Owned Properties”), (ii) indicates whether such Real Property is owned, leased, licensed or otherwise held, controlled or used by the Company, and (iii) describes the Company’s interest therein, including whether it includes the surface, the minerals, water or other rights;
(ii) The Company is the exclusive owner or lessee of, and has good title to the unpatented mining claims and millsite claims set forth in Schedule 3.7(a), which ownership and title is, subject to Permitted Liens, superior and paramount to any adverse claim or right of title which may be rightly asserted, and subject further only to the paramount title of the United States and to the rights, if any, of third parties to the lands within such unpatented mining claims pursuant to the Multiple Mineral Development Act of 1954 and the Surface Resources and Multiple Use Act of 1955;
(iii) With respect to the unpatented mining claims and unpatented millsite claims listed on Schedule 3.7(a): (A) the Company is in exclusive possession thereof, free and clear of all real property Liens, claims, encumbrances or other burdens on production, other than Permitted Liens; (B) all such claims were located, staked, filed and interests recorded on available public domain land in real property compliance with all applicable state and federal laws and regulations; (C) assessment work, intended in good faith to satisfy the requirements of state and federal laws and regulations and generally regarded in the mining industry as sufficient, was timely and properly performed on or for the benefit of the claims, and affidavits evidencing such work were timely recorded; (D) claim rental and maintenance fees required to be paid under federal law in lieu of the performance of assessment work, in order to maintain the claims have been timely and properly paid, and affidavits or other notices evidencing such payments as required under federal or state laws or regulation have been timely and properly filed and recorded; (E) all filings with the Bureau of Land Management with respect to such claims which are required under the Federal Land Policy and Management Act of 1976 have been timely and properly made; and (F) there are no actions or administrative or other proceedings pending or to the best of the Seller’s knowledge threatened against or affecting any of the claims. In addition, with respect to each of the unpatented mining claims listed on Schedule 3.7(a), the Seller represents that, to its knowledge, such unpatented mining claims have been relocated or remonumented as necessary, and that evidence of such relocation or remonumentation has been timely and properly recorded, all in compliance with the provisions of N.R.S. Chapter 517;
(iv) Except as disclosed in Schedule 3.7(a), the Company has valid and effective rights to its leased property, free and clear of Liens, except for Permitted Liens;
(v) All taxes, charges, rates, levies and assessments that, if unpaid, would create a Lien or charge on any Real Property or any portion thereof, have been paid in full;
(vi) All contractors, subcontractors, agents and other Persons providing services, materials or labour on or for the benefit of any Real Property have been paid in a timely manner for all work performed or services, goods or labour provided, on or with respect thereto
(vii) Schedule 3.7(a) specifies all Real Property leased or subleased by the Company or (“Leased Real Property”) and describes the Subsidiaries leases and subleases related thereto (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and”). The Seller has delivered or made available to the Purchaser true and complete copies of all Real Property Leases. With respect to the Leased Real Property and the Real Property Leases, together with the Owned Properties, being referred to herein individually except as a “Company Property” and collectively as the “Company Properties”otherwise specified on Schedule 3.7(a):
(A) as lessee or lessor, including a description of each such Each Real Property Lease (including the name is a valid and binding agreement of the third party lessor or lessee Company, and to the Knowledge of the Seller, each of such other parties thereto in accordance with its terms, and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to each Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and Lease;
(B) Permitted ExceptionsExcept as disclosed on Schedule 3.7(a) the Company is not in material breach or default under any such Real Property Lease, and to the Knowledge of the Seller, no event has occurred which, with the passage of time or expiration of any grace period, would constitute such a material breach or default of the Company’s obligations under such Real Property Lease, and to the Knowledge of the Seller, no other party to any such Real Property Lease is in material default thereunder. Neither the Seller nor the Company has received a written, or to the Knowledge of the Seller other, notice of default with respect to any such Real Property Lease;
(C) The Company Properties constitute all interests has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Real Property Lease or any portion thereof;
(D) Except for Permitted Liens, no Real Property Lease has been mortgaged, deeded in real property currently used, occupied trust or currently held for use in connection with subjected to a Lien;
(E) Except as specified on Schedule 3.7(a) no Real Property Lease requires the business consent of the Company and lessor to the Subsidiaries and which are necessary for the continued operation sale, transfer, conveyance or assignment of the business of Company;
(F) With regard to the Real Property, the Company has adequate and the Subsidiaries as the business is currently conducted. All appropriate legal rights of the Company Properties ingress and egress to such Real Property and all buildings, structures, facilities, fixtures and Improvements thereon areother improvements thereon, including those easements, licenses, privileges, rights and appurtenances as are necessary to mine, remove, process and transport any Metals by such methods as currently conducted; and
(G) Other than Permitted Liens, there are no other matters or conditions that, to the Knowledge of the CompanySeller, would adversely affect the rights of the Company to the Real Property.
(iviii) in good operating conditionSchedule 3.7(a) specifies all Real Property owned by the Seller (“Owned Real Property”), including the record title holder of the Owned Real Property. With respect to each such parcel of the Owned Real Property, except as otherwise specified on Schedule 3.7(a):
(iiA) are free from material structural defects, and (iii) are suitable, sufficient The Company has adequate and appropriate in legal rights of ingress and egress to such Owned Real Property and all respects for their buildings, structures, facilities, fixtures and other improvements thereon, including those easements, licenses, privileges, rights and appurtenances as are necessary to mine, remove, process and transport any Metals by such methods as currently conducted;
(B) There are no pending, or to the Knowledge of Seller, threatened condemnation or expropriation proceedings, lawsuits or administrative actions or any other material matters adversely affecting the current and contemplated uses. The Company has delivered to Purchaser trueuse, correct and complete copies occupancy or value of (i) all deeds, title reports and surveys for the Owned Properties and Real Property;
(iiC) the No material Owned Real Property Leases, together serves any adjoining property for any purpose inconsistent with all amendments, modifications or supplements, if any, thereto. The Company Properties the use of the Owned Real Property;
(D) There are not subject to any no leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangementsagreements, written or oral, granting to any Person the right to purchaseof use or occupancy of any portion of the Owned Real Property;
(E) No tenant, lessee or the other Person in possession of any Owned Real Property has any option or right to use purchase or occupy holds any right of refusal to purchase any such Company Property, except the Real Property Leases.properties;
(bF) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (andOther than Permitted Liens, there are no other matters or conditions that, to the Knowledge of the CompanySeller, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effecteffect on the Owned Real Property or the use thereof.
(dix) Neither The Seller has provided to the Company nor any Subsidiary ownsPurchaser, holdsto the extent requested, is obligated under or is a party to, any option, right of first refusal or other contractual right the following data and information related to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof of the Real Property: geological data, reserve data, existing mine maps, surveys, core hole logs and associated data, minerals measurements, mineral sample data, lithologic data, reserve calculations or interest thereinreports, mine plans, mine plan maps, mining permit applications and supporting data, engineering studies, reclamation reports and all other books and records, information, maps, reports and data.
(ex) Subject to market limitations and the other events affecting the geographical area in which There does not exist any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the CompanySeller, threatened condemnation action or eminent domain proceedings with respect any other action by a Governmental Authority to impose or enforce any material portion land use or land use restriction that would reasonably be expected to materially affect or materially impair the present or proposed use or operation of any Company the Real Property.
(xi) All material buildings, structures and other improvements located upon the Real Property are in working order and repair (normal wear and tear excepted), have been operated and maintained in the Ordinary Course of Business consistent with prudent mining industry standards and are in suitable and adequate condition for use consistent with past practices and prudent mining industry practices.
Appears in 1 contract
Real Property. (a) Schedule 5.10(aSection 4.10(a) of the Disclosure Schedules sets forth a complete list of (i) all the real property owned by Seller and interests used in real propertythe conduct of the Business as currently conducted (together with all buildings, including fixtures, structures and improvements situated thereon and easements all easements, rights-of-way and other rights and privileges appurtenant thereto owned in fee by the Company and the Subsidiaries (individuallythereto, an “Owned Property” and collectively, the “Owned PropertiesReal Property”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectivelyincluding with respect to each property, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” address location and collectively as the “Company Properties”use. Section 4.10(a) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date Disclosure Schedules sets forth a list of the lease or sublease following documents that Seller has Made Available to Buyer: copies of the deeds and other instruments (as recorded) in Seller’s possession by which Seller acquired such parcel of Owned Real Property, and copies of all amendments thereto)title insurance policies, opinions, abstracts and surveys in the possession of Seller with respect to such parcel. The Company and the Subsidiaries have With respect to each parcel of Owned Real Property:
(i) Seller has good and marketable fee title to all Owned Property and (ii) a valid leasehold interest insimple title, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (A) those Liens set forth on Schedule 5.10(a) Permitted Encumbrances and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business those Encumbrances set forth on Section 4.10(a)(i) of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, Disclosure Schedules;
(ii) are free from material structural defectsexcept as set forth on Section 4.10(a)(ii) of the Disclosure Schedules, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company Seller has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications not leased or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leasesor any portion thereof; and
(iii) there are no unrecorded outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein. Seller is not a party to any agreement or option to purchase any real property or interest therein relating to, or intended to be used in the operation of, the Business.
(b) Each Section 4.10(b) of the Disclosure Schedules sets forth each parcel of real property leased by Seller and used in the conduct of the Business (together with all rights, title and interest of Seller in and to leasehold improvements relating thereto, including, but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “Leased Real Property”), and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether written or oral), including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, pursuant to which Seller holds any Leased Real Property Leases is in full force (collectively, the “Leases”). Seller has Made Available to Buyer a true and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge complete copy of the Company, no other Person is) in default under any Real Property each Lease, and no breach by in the Company (orcase of any oral lease, to the Knowledge a written summary of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage material terms of time or both) result in such a default.Lease. With respect to each Lease:
(ci) The Company such Lease is valid and the Subsidiaries have all certificates of occupancy binding on Seller, subject to Enforceability Exceptions, in accordance with its terms and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there Seller enjoys peaceful and undisturbed possession of the Leased Real Property covered thereby;
(ii) Seller is not in breach or default under such Lease, and to the Knowledge of Seller, no pending orevent has occurred or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such a breach or default, and Seller has paid all rent due and payable under such Lease;
(iii) Seller has neither received nor given any written notice of any default or of an event that with notice or lapse of time, or both, would constitute a default by Seller under any of the Leases and, to the Knowledge of the CompanySeller, threatened proceeding which could result no other party is in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates and no party to any restrictive covenant, or encroaches on Lease has exercised any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.termination rights with respect thereto;
(div) Neither except as set forth on Section 4.10(b) of the Company nor Disclosure Schedules, Seller has not subleased, assigned or otherwise granted to any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual Person the right to purchase, acquire, sell, assign use or dispose of any real estate occupy such Leased Real Property or any portion thereof; and
(v) Seller has not pledged, mortgaged or otherwise granted an Encumbrance on their leasehold interest in any Leased Real Property;
(vi) no security deposit or portion thereof deposited with respect to such Lease has been applied in respect of a breach or default under such Lease which has not been redeposited in full;
(vii) Seller does not, and will not in the future, owe any brokerage commissions or finder’s fees with respect to such Lease;
(viii) except as set forth in Section 4.10(b) of the Disclosure Schedules, the other party to such Lease is not an affiliate of, and otherwise does not have any economic interest in, Seller; and
(ix) Seller has not collaterally assigned or granted any other security interest in such Lease or any interest therein.
(ec) Subject Each of the Owned Real Property and, to market limitations the Seller’s Knowledge, the Leased Real Property is in material compliance with all applicable building, zoning, subdivision, health and the safety, land use and other events Laws and insurance requirements affecting the geographical area Real Property. To the Knowledge of Seller, there is no pending or anticipated change in which any Company Law affecting the Owned Real Property is locatedthat will have a material adverse effect on the ownership, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate waterlease, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice use or occupancy of any material special assessment relating to any Company Real Property or any portion thereof, and no such special assessment is pending or, to thereof in the Knowledge continued operation of the CompanyBusiness. Seller has not received any written notice of (i) violations of building codes and/or zoning ordinances or other governmental or regulatory Laws affecting the Real Property, threatened. There are no (ii) existing, pending or, to the Knowledge of the Company, or threatened condemnation proceedings affecting the Real Property, or eminent domain proceedings with respect (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which could reasonably be expected to materially and adversely affect the ability to operate the Real Property as currently operated. Neither the whole nor any material portion of any Company PropertyReal Property has been damaged or destroyed by fire or other casualty since January 1, 2021.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bassett Furniture Industries Inc)
Real Property. (a) Schedule 5.10(a) sets forth a complete list of To Port Deposit's Knowledge,
(i) all Port Deposit does not own or otherwise hold in fee simple any real property used and interests useful in real propertythe conduct of the operations of any Facility or its Water Distribution, including improvements thereon Treatment and easements appurtenant thereto owned in fee by Metering Systems other than the Company and the Subsidiaries (individually, an “Owned Real Property” and collectively, the “Owned Properties”), ; and
(ii) all Except as described on Schedule 4.5(a), Port Deposit owns in its sole capacity good, marketable, valid and legal fee simple title to the Owned Real Property, and easements by instruments or right of law through which the Facilities run or are situate, subject to no Liens of Record other than (A) real property taxes that are not due and interests payable as of the Closing Date, (B) use and occupancy restrictions of public record that are generally applicable to properties in real property leased the immediate neighborhood or the subdivision in which such Owned Real Property is located and (C) a notice of lien filed by the Company Maryland Environmental Service on or about November 20, 2008 which Port Deposit deems to be flawed. As a condition precedent to Closing Port Deposit will be required to obtain the Subsidiaries (individually, a “release of this Notice of Lien or to obtain its judicial nullification. Port Deposit will use reasonable efforts to make diligent inquiry to identify and disclose all Liens not of record related to the Owned Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred at least fifteen (15) days prior to herein individually as a “Company Property” and collectively as the “Company Properties”Closing.
(b) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have To Port Deposit's Knowledge,
(i) good fee title Port Deposit does not lease any real property or have a right to all Owned Property access or use any other real property (except by license or easement) used and useful in the conduct of the operations of any Facility, except as described on Schedule 2.1(c) (“Leased Property”);
(ii) Port Deposit has a valid and enforceable leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, or easement in each case Leased Property and Easement, respectively, listed on Schedule 2.1(c), free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and Record; and
(iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies none of (i) all deeds, title reports and surveys the lease agreements for the Owned Properties and (ii) the Real Leased Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each Easements will terminate as a result of the Real Property Leases is in full force execution and effect. Neither the Company nor delivery of this Agreement or any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by Transaction Documents nor the Company (or, to the Knowledge consummation of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaulttransactions contemplated hereby.
(c) The Company and To Port Deposit's Knowledge, the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Owned Real Property, the Leased Property and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation Easements comprise all of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any real property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably interests necessary for the operation of such Company Property Buyer to operate the Facilities and Improvements the Water Distribution, Treatment and Metering Systems after the Closing as currently operated including adequate water, storm they are each presently being conducted by Port Deposit and sanitary sewer, gas, electric, cable and telephone facilitiesthey will each be conducted by Port Deposit on the Closing Date.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) Schedule 3(j)(I) lists and describes briefly all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by of the Company and Owned Property that is part of the Subsidiaries (individually, an “Acquired Assets. With respect to each such parcel of Owned Property” and collectively:
(A) Seller has received no notice, nor does Seller have Knowledge, of any threat- ened condemnation proceedings, lawsuits, or administra- tive actions relating to the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) Seller has received no notice of, all Company Properties subject to Real Property Leasesnor does Seller have Knowl- edge of, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and other matters materially adversely affect- ing the current use or occupancy;
(B) Permitted Exceptions. The Company Properties constitute all interests in real property currently usedthe Owned Property is not located within any flood plain or subject to any simi- lar type restriction for which any permits or licenses necessary to the use thereof have not been obtained;
(C) Seller has received no notice, occupied or currently held for use nor does Seller have any Knowledge, of any failure to obtain approvals of governmental authorities (including licenses and permits) required in connection with the business of the Company and the Subsidiaries and which are necessary for the continued ownership or operation of the business of Stores and to Seller's Knowledge the Company Stores have been operated and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildingsmaintained in accordance with applicable laws, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defectsrules, and regulations;
(iiiD) are suitableSeller has received no notice from any landlord, sufficient any governmental authority or agency or any other party, nor does Seller have any Knowledge, of any violation or potential violation of annexation, zoning, land use or building code require- ments, subdivision map requirements, air and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser truewater quality control permits or state, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together county or city ordi- nances with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject regard to any leases, rights, options, subleases, licenses, occupancy agreements, concessions parcel of Owned Property;
(E) there are no Subleases or other agreements or arrangementsagreements, written or oral, granting to any Person party or parties the right of use or occupancy of any portion of the parcel of Owned Property and no security deposits have been paid to purchaseSeller thereunder other than as disclosed on Schedule 3(j)(I)(E);
(F) Seller has not assigned, transferred, conveyed, mortgaged, deeded in trust, or the right to use or occupy encumbered any such Company interest in any Owned Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor includ- ing any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with outstanding options or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right rights of first refusal or other contractual right to purchasepurchase any Owned Property, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.therein except as set forth in Section 3(e)-2;
(eG) Subject there are no parties (other than Seller) in possession of the Owned Proper- ty, other than Sublessees under any Subleases disclosed on Schedule 3(j)(I)(E) who are in possession of space to market limitations and which they are entitled; and
(H) all Stores located on the other events affecting the geographical area in which any Company Owned Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements facilities as they are currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesoperated.
(fii) Neither Seller has delivered to Buyer cor- rect and complete copies of all of the Company Leases and Subleases. With respect to each Lease and Sublease, as applicable:
(A) the Lease and Sublease are legal, valid, binding, enforceable, and in full force and effect;
(B) the Lease and Sublease set forth on Schedule 6(a)(v) can be assigned without Land- lord Consent except as set forth on Schedule 3(j)(ii)(B);
(C) the property subject to the Lease is not located within any flood plain or subject to any similar type restriction for which any permits or licenses necessary to the use thereof have not been obtained;
(D) Seller has not sent or received a notice of default, nor does Seller have any Knowledge, that any Party to a Lease or Sublease is in breach or default, and has no Knowledge that any event has occurred which, with notice or lapse of its Subsidiaries time, would constitute a breach or default or permit termination, modification, or acceleration under any Lease or Sub- lease;
(E) Seller has received written no notice from any landlord, any governmental authority or agency or any other party, nor does Seller have any Knowledge, of any material special assessment relating violation or potential violation of annexation, zoning, land use or building code require- ments, subdivision map requirements, air and water quality control permits or state, county or city ordi- nances with regard to the Store under the Lease except as set forth in Schedule 3(j)(ii)(E);
(F) there are no other agree- ments between the parties to the Lease or Sublease, oral or written, except as set forth in the Lease or Sublease or on Schedule 3(j)(ii)(F);
(G) Seller has not assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any Company Property interest in the Lease or Sublease except as set forth on Schedule 3(j)(ii)(G);
(H) Seller has received no notice, nor does Seller have any portion thereofKnowledge, of any failure to obtain approvals of governmental authorities (including licenses and permits) required in connection with the operation of the Store subject to the Lease and has operated and maintained the Store in accordance with applicable laws, rules, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There regulations;
(I) there are no pending or, to the Knowledge of the CompanySeller, threatened condemnation proceedings, lawsuits, or eminent domain proceedings with respect administrative actions relat- ing to the Leased Property and Seller has received no notice, nor does Seller have Knowledge, of any other matters materially adversely affecting the current use or occupancy thereof;
(J) Seller has no Knowledge of any material portion casualty or other casualty not adequately covered by insurance affecting the Store subject to the Lease;
(K) the Store subject to the Lease is supplied with utilities and other services necessary for the operation of any Company Propertysaid Store as it is currently operated; and
(L) the Store subject to the Lease abuts on and has direct vehicular access to a public road or has access to a public road via a perma- nent, irrevocable, appurtenant easement benefitting the properties on which the Store is located.
Appears in 1 contract
Real Property. (a) The Seller Disclosure Schedule 5.10(a) sets forth a complete list of contains (i) a list of all real property and interests in real property, including improvements thereon and easements appurtenant thereto property owned in fee by any member of the Company and Seller Group Related to the Subsidiaries Business that constitute a Purchased Asset (individually, an “Owned Property” and collectively, the “Owned PropertiesReal Property”), and (ii) a list of all real property and interests in real property leased by any member of the Company or Seller Group Related to the Subsidiaries Business that constitute a Purchased Asset (individually, a “Real Property Lease” and collectively, the “Leased Real Property LeasesProperty” and, together with the Owned PropertiesReal Property, being referred to herein individually as a “Company Property” and collectively as the “Company PropertiesReal Property”).
(b) as lessee or lessor, including a description With respect to each parcel of each such Owned Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have Property:
(i) A member of the Seller Group has good fee and marketable title to all each such parcel of Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverLiens, except (A) those Permitted Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently usedzoning and building restrictions, occupied easements, covenants, rights-of-way and other similar restrictions of record, none of which impairs the current or currently held for proposed use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, such Owned Real Property.
(ii) are free from material structural defectsSeller has provided to Buyer copies of the deeds and other instruments (as recorded) by which the relevant member of the Seller Group acquired such parcel of Owned Real Property, and copies of all title insurance policies, opinions, abstracts and surveys in the possession of the Seller Group with respect to such parcel.
(iii) There are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications no outstanding options or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right rights of first refusal or other contractual right to purchasepurchase such parcel of Owned Real Property, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(ec) Subject With respect to market limitations Leased Real Property, Seller has delivered to Buyer a true and the other events affecting the geographical area in complete copy of every lease and sublease pursuant to which any Company Property member of the Seller Group is locateda party or by which it is bound (each, a “Lease”). The relevant member of the Company Property Seller Group has peaceful, undisturbed and exclusive possession of the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesLeased Real Property.
(fd) Neither To Seller’s Knowledge, the Company nor any uses for which the buildings, facilities and other improvements located on the Owned Real Property are zoned do not restrict, or impair, the use of its Subsidiaries the Owned Real Property for purposes of the Business. To Seller’s Knowledge, the uses for which the buildings, facilities and other improvements located on the Leased Real Property are zoned do not restrict, or impair, the use of the Leased Real Property for purposes of the Business.
(e) No Governmental Entity having the power of eminent domain over the Real Property has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending commenced or, to Seller’s Knowledge, intends to exercise the Knowledge power of eminent domain or a similar power with respect to all or any part of the Company, threatenedReal Property. There are no pending or, to the Knowledge Seller’s Knowledge, threatened condemnation, fire, health, safety, building, zoning or other land use regulatory proceedings, lawsuits or administrative actions relating to any portion of the CompanyReal Property or any other matters which do or may reasonably be expected to materially adversely effect the current use, occupancy or value thereof. No member of the Seller Group has received written notice of any pending or threatened condemnation special assessment proceedings affecting any portion of the Real Property.
(f) The Real Property and all present uses and operations of the Real Property comply in all material respects with all Laws, covenants, conditions, restrictions, easements, disposition agreements and similar matters affecting the Real Property. The Owned Real Property, and to Seller’s Knowledge the Leased Real Property, and the continued use, occupancy and operation of the Real Property as used, occupied and operated in the conduct of the Business do not constitute a nonconforming use and are not the subject of a special use permit under any Law.
(g) The Real Property is in suitable condition in all material respects for the conduct of the Business as currently conducted. Each member of the Seller Group has good and valid rights of ingress and egress to and from all Owned Real Property from and to the public street systems for usual street, road and utility purposes.
(h) No Person other than a member of the Seller Group is in possession of any of the Real Property or eminent domain proceedings any portion thereof (other than common use areas), and there are no leases, subleases, licenses, concessions or other agreements, written or oral, granting to any Person other than the Seller Group the right of use or occupancy of the Real Property or any portion thereof (other than common use areas). No easement, utility transmission line or water main located on the Real Property materially adversely affects the use of the Real Property or any improvement on the Real Property.
(i) All water, sewer, gas, electric, telephone and drainage facilities, and all other utilities required by any Law or by the use and operation of the Real Property in the conduct of the Business are operable and are adequate to service the Real Property in the operation of the Business and to permit compliance in all material respects with the requirements of all Laws in the operation thereof. To Seller’s Knowledge, no fact or condition exists which could reasonably be expected to result in the termination or material reduction of the current access from the Real Property to existing roads or to sewer or other utility services presently serving the Real Property.
(j) A member of the Seller Group owns each of the Japan Buildings free and clear of any Liens except Permitted Liens. All of the Japan Buildings comply with all applicable material building codes, fire codes and other applicable Laws. All of the Japan Buildings comply with all applicable material building codes, fire codes and other applicable Laws, including but not limited to, the current earthquake standard under the Building Standards Act (kenchiku ▇▇▇▇▇ ▇▇) (Act No. 201 of 1950).
(k) No lawsuit, arbitration, conciliation or administrative proceeding with regard to the Owned Real Property is pending, and to Seller’s Knowledge, there is no reasonable likelihood thereof.
(l) There is no third party of which any attachment, provisional attachment, or preservative measures are accepted with respect to any material portion of any Company Propertythe Owned Real Property and to Seller’s Knowledge, no filing has been made therefor.
(m) There is no flaw or defect in the Owned Real Property that would prevent the Buyer from consummating the transactions contemplated by the Japan Real Estate Purchase Agreement on account thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Advanced Energy Industries Inc)
Real Property. (aSchedule 4(z) Schedule 5.10(a) sets forth contains a complete and correct list of all the real property; leasehold interests; fee interests; oil, gas and other mineral drilling, exploration and development rights; royalty, overriding royalty, and other payments out of or pursuant to production; other rights in and to oil, gas and other minerals, including contractual rights to production, concessions, net profits interests, working interests and participation interests; any other contractual rights for the acquisition or earning of any of such interests in the real property; facilities; fixtures; equipment that (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto are leased or otherwise owned in fee or possessed by the Company and or any of the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”)Subsidiaries, (ii) in connection with which the Company or any of the Subsidiaries has entered into an option agreement, participation agreement or acquisition and drilling agreement or (iii) the Company or any of the Subsidiaries has agreed to lease or otherwise acquire or may be obligated to lease or otherwise acquire in connection with the conduct of its business (collectively, including any of the foregoing acquired after the date of this Agreement, the “Real Property”), which list identifies all real property of the Real Property and interests in real property leased by specifies which of the Company or the Subsidiaries (individuallyleases, owns or possesses each of the Real Properties or will do so upon consummation of the Purchases. Schedule 4(z) also contains a “complete and correct list of all leases and other agreements with respect to which the Company or any of the Subsidiaries is a party or otherwise bound or affected with respect to the Real Property, except easements, rights of way, access agreements, surface damage agreements, surface use agreements or similar agreements that pertain to Real Property Lease” and collectively, that is contained wholly within the boundaries of any owned or leased Real Property otherwise described on Schedule 4(z) (the “Real Property Leases” and”). Except as set forth in Schedule 4(z), together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name one of the third party lessor or lessee Subsidiaries is the legal and the date equitable owner of a leasehold interest in all of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest inReal Property, and enjoys peaceful possesses good, marketable and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) ofdefensible title thereto, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(aother than Permitted Liens) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with other matters affecting title to such leasehold that could impair the business ability of the Company and or the Subsidiaries and which are necessary for to realize the continued operation benefits of the business rights provided to any of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) them under the Real Property Leases. Except as set forth in Schedule 4(z), together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is are valid and in full force and effecteffect and are enforceable against all parties thereto. Neither Except as set forth in Schedule 4(z), neither the Company nor any Subsidiary is (andof the Subsidiaries nor, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company’s knowledge, any other Person) party thereto is in default in any material respect under any of such Real Property Leases and no event has occurred under any Real Property Lease which, if not remedied, would (whether which with or without the giving of notice or the passage of time or both) result in both could constitute a default under, or otherwise give any party the right to terminate, any of such a default.
(c) The Company and Real Property Leases, or could adversely affect the Subsidiaries have all certificates of occupancy and material Permits of Company’s or any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements Subsidiaries’ interest in and title to the Company Real Property subject to any of such Real Property Leases. No Real Property Lease is subject to termination, modification or any drivewaysacceleration as a result of the transactions contemplated hereby or by the other Transaction Agreements. Except as set forth in Schedule 4(z), roads and other means all of egress and ingress to and from any Company the Real Property and each such Permit, agreement, easement or other right is Leases will remain in full force and effecteffect upon, and permit, the consummation of the transactions contemplated hereby (including the granting of leasehold mortgages). The Real Property is permitted for its present uses under applicable zoning laws, are permitted conforming structures and complies with all applicable building codes, ordinances and other similar Laws. Except as set forth on Schedule 4(z), there is are no pending oror threatened condemnation, eminent domain or similar proceedings, or litigation or other proceedings affecting the Real Property, or any portion or portions thereof. Except as set forth on Schedule 4(z), there are no pending or threatened requests, applications or proceedings to alter or restrict any zoning or other use restrictions applicable to the Knowledge Real Property that would interfere with the conduct of the Company’s or any of the Subsidiaries’ businesses as conducted or proposed to be conducted proposed to be conducted at the time this representation is made. Except as set forth on Schedule 4(z), threatened proceeding which could result in there are no restrictions applicable to the material and adverse modification Real Property that would interfere with the Company’s or cancellation thereof. No default any Subsidiary’s making an assignment or violationgranting of a leasehold or other mortgage to the Buyers as contemplated by the Mortgage Amendments, including any requirement under any Real Property Leases requiring the consent of, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose lessor of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Real Property.
Appears in 1 contract
Real Property. With respect to each parcel of Property owned by the Target REIT, either directly or through a wholly-owned subsidiary:
(a) Schedule 5.10(athe Target REIT has good and clear record and marketable title to such parcel, insurable by a recognized national title insurance company at standard rates, free and clear of any security interest, easement, covenant or other restriction, except for recorded easements, covenants and other restrictions which do not impair the uses, occupancy or value of such parcel for its existing use as an office building (the "Intended Uses");
(b) sets forth a complete list of there are no (i) all real property and interests in real propertypending or, including improvements thereon and easements appurtenant thereto owned in fee by to the Company and knowledge of the Subsidiaries (individuallyTarget REIT, an “Owned Property” and collectively, the “Owned Properties”)threatened condemnation proceedings relating to such parcel, (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon arepending or, to the Knowledge knowledge of the CompanyTarget REIT, (i) in good operating conditionthreatened litigation or administrative actions relating to such parcel, (ii) are free from material structural defects, and or (iii) are suitableother matters affecting adversely the Intended Uses or, sufficient occupancy or value thereof;
(c) the legal description for such parcel contained in the deed thereof describes such parcel fully and appropriate in all respects for their current adequately; the buildings and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys improvements for the Owned Properties Intended Uses is permitted under applicable zoning and (ii) land use laws, and such buildings and improvements are located within the Real Property Leasesboundary lines of the described parcels of land, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not in violation of, or are affirmatively covered by title insurance with respect to, setback requirements applicable to them, zoning laws and ordinances and do not encroach on any easement which may burden the land; the land does not serve any adjoining property for any purpose inconsistent with the use of the land; and no building is located within a special flood hazard area, except as shown in Section 4.8 of the Target REIT Disclosure Schedule, or subject to any similar type restriction for which any permits or licenses necessary to the use thereof have not been obtained;
(d) there are no leases, rights, options, subleases, licenses, occupancy licenses or agreements, concessions or other agreements or arrangements, written or oral, granting to any Person party or parties (other than the Target REIT and those tenants under leases described in Section 4.9) the right to purchase, or the right to of use or occupy occupancy of any portion of such Company Propertyparcel, except for leases, subleases, licenses or agreements which do not impair the Real Property Leases.Intended Uses;
(be) Each of the Real Property Leases is except as set forth in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person isSection 4.8(e) in default under any Real Property Leasethe Target REIT Disclosure Schedule, and there are no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with outstanding options or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right rights of first refusal or other contractual right to purchasepurchase such parcel, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.;
(ef) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements all facilities located on such parcel are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated facilities, including adequate gas, electricity, water, telephone, sanitary sewer and storm and sanitary sewer, gasall of which services are adequate for the Intended Uses and in accordance with all applicable laws, electricordinances, cable rules and telephone facilities.regulations and are provided via public roads or via permanent, irrevocable, appurtenant easements benefiting such parcel;
(fg) Neither such parcel abuts on and has direct vehicular access to a public road or access to a public road via a permanent, irrevocable, appurtenant easement benefiting such parcel;
(h) the Company nor any of its Subsidiaries Target REIT has received written no notice of any material special assessment relating any, and, to any Company Property the knowledge of the Target REIT, there is no, proposed or pending proceeding to change or redefine the zoning classification of all or any portion thereofof the parcels;
(i) the improvements constructed on the parcels are in good condition and proper order, free of material roof leaks, untreated material insect infestation, and no material construction defects, and all mechanical and utility systems servicing such special assessment improvements are in good condition and proper working order, free of material defects; and
(j) each parcel is pending oran independent unit which does not rely on any facilities (other than the facilities of public utility and water companies or facilities as to which a permanent, irrevocable appurtenant easement exists benefiting such parcel granting the use of such facilities) located on any other property (i) to fulfill any zoning, building code or other municipal or governmental requirement, (ii) for structural support or the Knowledge furnishing of any essential building systems or utilities, including, but not limited to electric, plumbing, mechanical, heating, ventilating, and air conditioning systems, or (iii) to fulfill the requirements of any lease. No building or other improvement not included in the parcels relies on any part of the Companyparcels to fulfill any zoning, threatened. There are no pending or, to building code or other municipal or governmental requirement or for structural support or the Knowledge furnishing of the Company, threatened condemnation any essential building systems or eminent domain proceedings utilities except with respect to any material portion utility or storm water facilities pursuant to recorded easement agreements or declarations of any Company Propertycommon easements the use of which do not impair the Intended Uses. Each of the parcels is assessed by local property assessors as a tax parcel or parcels separate from all other tax parcels.
Appears in 1 contract
Sources: Merger Agreement (Franklin Street Properties Corp /Ma/)
Real Property. (a) Schedule 5.10(a2.13(a) hereto sets forth a complete list of (i) all the real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company or any Subsidiary (the "Owned Real Property") and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or any Subsidiary (the Subsidiaries "Leased Real Property") (individuallythe Owned Real Property, a “the Leased Real Property Lease” and collectivelyall other rights, licenses or interests of the “Real Property Leases” and, together with the Owned Properties, being Company or any Subsidiary in real property are collectively referred to herein individually as a “Company Property” and collectively as the “"Real Property"). The Company Properties”) as lessee has made available to Buyer true and correct copies of all leases, subleases, abstracts of title, surveys, title opinions and title insurance policies in the Company's or lessor, including a description any Subsidiary's possession or control relating to any of each such the Real Property. None of the Real Property Lease (including reflected in the name of Most Recent Balance Sheet has been disposed of, and no Real Property has been acquired by the third party lessor Company or lessee and any Subsidiary since the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property LeasesMost Recent Balance Sheet.
(b) Each Except for (i) liens disclosed in Schedule 2.13(b) hereto, (ii) liens for current Taxes not yet delinquent and duly accrued for on the Most Recent Balance Sheet, or, if more recent, otherwise accrued for in the Company's books and records, (iii) covenants, conditions and restrictions of record, none of which materially impairs the use of such property in the manner currently used, reduces the fair market value of such property or impairs the ability of the Real Property Leases is in full force and effect. Neither the Company nor or any Subsidiary to deliver good title to such Real Property, and (iv) any mechanic's, workmen's, repairmen's, materialmen's, contractor's, warehousemen's, carrier's, supplier's or vendor's lien, if payment is (andnot yet due on the underlying obligation and duly accrued for on the Most Recent Balance Sheet, to the Knowledge of or, if more recent, otherwise accrued for in the Company, no other Person is) in default under any Real Property Lease, 's books and no breach records or if such lien did not arise from actions taken by the Company or the Stockholders (orthe "Permitted Liens"), the Company or a Subsidiary has good title to all Owned Real Property, and a valid leasehold interest in all Leased Real Property, free and clear of any Security Interest. Except as set forth in Schedule 2.13(b), the Knowledge Company or a Subsidiary has good title to all structures, plants, leasehold improvements, systems, fixtures and other property located on or about any of the Company, any other Person) has occurred under any Leased Real Property Lease whichand which are owned by the Company or a Subsidiary, if not remediedas reflected in the Most Recent Balance Sheet, would (whether with free and clear of any Security Interests except for Permitted Liens, and none of such assets is subject to any contract for its use by any Person other than the Company or without notice or the passage of time or both) result in such a defaultSubsidiary.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation Each of the Improvements leases and subleases relating to the Company Leased Real Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, material default by the Company or a Subsidiary (or to the Knowledge of the Stockholders and the Company, threatened proceeding which could result by the lessor) under any such lease or sublease, and, except as set forth on Schedule 2.13(c), each such lease and sublease will remain in full force and effect following the Closing without any modification in the material and adverse modification rights or cancellation thereof. No default obligations of the parties under any such lease or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effectsublease.
(d) Neither Except as set forth in Schedule 2.13(d) hereto, no work has been performed by the Company nor any Subsidiary ownsor on behalf of the Company, holds, is obligated under or is a party toto the knowledge of the Company and the Stockholders, any optionthird party, right on or with respect to or in connection with any of first refusal or other contractual right the Real Property that would cause such Real Property to purchase, acquire, sell, assign or dispose of become subject to any real estate or any portion thereof or interest thereinadditional Security Interests.
(e) Subject to market limitations To the best knowledge of the Company and the other events affecting the geographical area in which Stockholders, without them having made any Company Property is locatedinquiry or investigation, the Company structures, plants, improvements, systems and fixtures (including, without limitation, storage tanks or other impoundment vessels, whether above or below ground) (collectively, "Improvements") located on each parcel of Real Property and the Improvements are sufficiently supplied comply in all material respects with utilities all applicable laws, ordinances, rules, regulations and other services as reasonably necessary for similar governmental and regulatory requirements. The Improvements are in good operating condition and repair, ordinary wear and tear excepted. To the operation best knowledge of such Company Property the Stockholders and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending orwithout them having made any inquiry or investigation, to the Knowledge each such parcel of Real Property (in view of the Companypurposes for which it is currently used) conforms in all material respects with all covenants or restrictions of record and conforms with all applicable building codes and zoning requirements and there is not any proposed change in any such governmental or regulatory requirements or in any such zoning requirements. All existing electrical, threatened condemnation plumbing, fire sprinkler, lighting, air conditioning, heating, ventilation, elevator and other mechanical systems located in or eminent domain proceedings with respect to any material portion of any Company Property.about the Real Property ("Facilities Equipment") are, to
Appears in 1 contract
Real Property. (a) No BiteSquad Party currently owns, or has ever owned, any interest in real property.
(b) Schedule 5.10(a4.13(b) sets forth a true, accurate and complete list of (i) all real property leasehold or subleasehold estates and interests in real propertyother rights to hold, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individuallyuse, an “Owned Property” and collectivelypossess or occupy any land, the “Owned Properties”)buildings, (ii) all real property and interests structures, improvements, fixtures or other interest in real property leased held by each BiteSquad Party as of the Company or the Subsidiaries Effective Time (individually, a “Real Property Lease” and collectively, the “Leased Real Property Leases” and, together with the Owned Properties, being referred to herein individually Property”).
(c) Except as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute 4.13(c), the Leased Real Property constitutes all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and facilities used or occupied by the Subsidiaries and which are necessary for BiteSquad Parties in the continued operation conduct of the its business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, With respect to the Knowledge of the Company, Leased Real Property: (i) in good operating conditionto BiteSquad’s Knowledge, each BiteSquad Party has all easements and rights necessary to conduct its business, as currently conducted; (ii) are free from material structural defectsno portion thereof is, and to BiteSquad’s Knowledge, subject to any pending or threatened condemnation proceeding or proceeding by any Governmental Authority; (iii) no BiteSquad Party has received written notice, and to BiteSquad’s Knowledge, there are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any no leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangementsagreements, written or oral, granting to any Person other party or parties the right to purchase, or the right to of use or occupy occupancy of any such Company portion of any parcel of Leased Real Property, except the Real Property Leases.
; (bv) Each of the Real Property Leases is in full force and effect. Neither the Company nor no BiteSquad Party has received any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Leasewritten notice of, and no breach by the Company (or, to the BiteSquad’s Knowledge of the Companythere are no, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with outstanding options or without notice or the passage rights of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased first refusal held by any other Personperson to purchase any parcel of Leased Real Property, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
; (evi) Subject no BiteSquad Party has received written notice of, and to market limitations BiteSquad’s Knowledge there are no parties (other than a BiteSquad Party) in possession of any parcel of Leased Real Property, other than tenants under any leases of the Leased Real Property who are in possession of space to which they are entitled; and (vii) the other events affecting the geographical area in which any Company Leased Real Property is located, the Company Property and the Improvements are sufficiently has been supplied in all material respects with utilities and other services as reasonably necessary sufficient for the operation of such Company Property and Improvements each BiteSquad Party’s business as currently operated including adequate water, storm conducted and sanitary sewer, gas, electric, cable and telephone facilitiesas proposed to be conducted.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (a) Section 4.8 of the Disclosure Schedule 5.10(a) sets forth a complete list the address of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee or leased by each of the Company and the Subsidiaries Subsidiary (individually, an “Owned Property” and collectively, the “Owned Properties”"PROPERTIES"), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name . Each of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) Subsidiary has good and valid title in fee title simple to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) ofreal property reflected on the Balance Sheet as owned by it and owns all right, title and interest in all Company Properties subject leasehold estates and other rights purported to Real Property Leasesbe granted to them by the leases and other agreements relating to real property listed in Section 4.8 of the Disclosure Schedule, in each case free and clear of all Liens any Encumbrance except for: (i) liens for current taxes, assessments and governmental charges and levies which may be paid without penalty, interest or other additional charge or which are being contested in good faith by appropriate proceedings and are not material in amount or value in relation to the value of the associated property and adequate reserves with respect thereto are maintained on the books and records of the Company; (ii) any nature whatsoeverzoning or other governmentally established restrictions or encumbrances; (iii) materialmen's, except mechanics', carriers', warehousemen's, landlords', workmen's, repairmen's, or other like liens arising in the ordinary course of business and which are not overdue for more than a period of 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained in the books of the Company; (Aiv) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests liens incurred or deposits made in real property currently used, occupied or currently held for use the ordinary course of business in connection with workers' compensation, unemployment insurance, social security and other like laws, or to secure the business performance of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildingsconstruction contracts, fixtures and Improvements thereon areleases, statutory obligations, surety, appeal or performance bonds, all to the Knowledge extent incurred in the ordinary course of the Company, (i) in good operating condition, (ii) are free from material structural defects, business; and (iiiv) are suitable, sufficient such utility and appropriate in all respects for their current municipal easements and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplementsrestrictions, if any, thereto. The Company Properties are as do not subject to detract in any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person material respect from the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each value of the Real Property Leases is property subject thereto and do not materially interfere with the properties used in full force and effectthe ordinary conduct of the Business as presently conducted (collectively, the "PERMITTED ENCUMBRANCES"). Neither the Company nor any Subsidiary is (andNo building or structure, to the Knowledge extent of the Company, no other Person is) in default under any Real Property Lease, and no breach premises owned or leased by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company PropertySubsidiary, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement appurtenance thereto or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvementequipment therein, or the operation or maintenance thereof, violates in any material respect any restrictive covenantcovenant or any Law (including without limitation any such Laws relating to health, safety, subdivision and zoning). To the Knowledge of Seller, no such building, structure or appurtenance encroaches on any property owned by others. All governmental permits, approvals and licenses required in connection with the operation and, in the case of the facilities owned by the Company or leased by the Subsidiary, ownership, of such real property and all improvements thereon and the conduct of the Business on the date hereof have been duly obtained, are in full force and effect and no proceedings are pending or, to the Knowledge of Seller, threatened which could lead to a revocation or other impairment of any other Personthereof, which has had except where the failure to hold such permits, approvals or licenses would not be reasonably be expected likely to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holdsand such permits, is obligated under approvals, and licenses shall not be affected by, or is a party to, any option, right of first refusal terminate or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is locatedlapse by reason of, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property transactions contemplated by this Agreement. No condemnation proceeding or any portion thereof, and no such special assessment is pending or, to the Knowledge of Seller, threatened with respect to any real property identified in Section 4.8 of the Company, threatenedDisclosure Schedule. There are no No tax certiorari or similar proceeding is pending or, to the Knowledge of the CompanySeller, threatened condemnation or eminent domain proceedings with respect to any real property identified in Section 4.8 of the Disclosure Schedule.
(b) To the Knowledge of Seller, there is no violation of a condition or agreement contained in any covenant, easement or right-of-way affecting any Property. To the Knowledge of Seller, the covenants, easements or rights-of-way affecting the Properties do not impair in any material respect the Company or the Subsidiary's ability to use any such Properties in the operation of the Business as presently conducted. To the Knowledge of Seller, each of the Company and the Subsidiary has access to public roads, streets or the like or valid perpetual easements over private streets, roads or other private property for such ingress to and egress from the Properties, except as would not impair in any material respect its ability to use any such Properties in the operation of the Business as presently conducted.
(c) Neither the Company nor the Subsidiary has received written notice (other than published notice not actually received) of any pending or contemplated rezoning proceeding affecting the Properties.
(d) Seller has not received any notice from any utility company or municipality of any fact or condition which could reasonably be expected to result in the discontinuation of presently available sewer, water, electric, gas, telephone or other utilities or services for the Properties.
(e) The improvements to, or which constitute a portion of, the Properties are in satisfactory condition and repair, ordinary wear and tear excepted, and to the Knowledge of Seller, there are no material defects in the structural elements of such improvements.
(f) To the Knowledge of Seller, all material building systems located on or which constitute a portion of any Company Propertythe Properties, including the plumbing, electrical, fire-life-safety and HVAC systems, are in satisfactory operating condition, ordinary wear and tear excepted.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) Neither Seller owns fee title to any real property.
(ii) Schedule 5(m)(ii) contains a complete and correct list and description of all of Sellers' Site Leases and other leases (whether oral or written) with respect to real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”"Leases"), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of all buildings, structures, improvements, transmitters, terminals and other equipment located at each such Real Property Lease (including the name of the third party lessor or lessee and premises underlying such Leases (collectively, the date of the lease or sublease "Premises"), and all amendments theretolicensing arrangements and leases of personal property relating to the Business ("Personal Property Leases"), to which either Seller is a party (either as lessor, lessee, licensor or licensee). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens Except as set forth on Schedule 5.10(a5(m) and (B) Permitted Exceptions. The Company Properties constitute hereto, all interests in real property currently usedof such Leases, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Personal Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties and licensing agreements are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is valid and in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge effect in accordance with their respective terms and there are no existing defaults or events of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether or events which with or without notice or the passage lapse of time or both) result both would constitute defaults or which would interfere with the enjoyment by Sellers or any assignee of the benefits of such instrument or their use and enjoyment of the real or personal property. Except as set forth on Schedule 5(m)(ii), no consents are required in such a defaultorder to transfer any of the Leases, Personal Property Leases or licenses to Purchaser, nor have Sellers received any notice of intent not to renew from any lessor or licensor thereunder.
(ciii) The Company Except as set forth on Schedule 5(m)(iii), to Sellers' knowledge all activities and operations conducted by Sellers on the Premises, and all structures, improvements and fixtures installed by Sellers on the Premises, conform to any and all applicable federal, state and local laws, ordinances and regulations, including, without limitation, zoning and building ordinances and health, environmental and safety laws, ordinances and regulations, and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful Premises are zoned for the current use and operation of each Company Propertyvarious purposes for which the Premises are currently being used.
(iv) Except as set forth on Schedule 5(m)(iv), and any agreementto Sellers' Knowledge, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to condition resulting from the Knowledge activities of the Company, threatened proceeding Business which would adversely affect or impair the use of any of the Premises for the purposes for which Sellers are currently using the same or which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse imposition of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches liability on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse EffectPurchaser.
(dv) Neither To Sellers' Knowledge, there are no existing, pending or threatened condemnations, or violations of other governmental regulations giving rise to pending or threatened governmental or administrative actions that will materially adversely affect or impair the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose use of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and of the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary Premises for the operation of such Company Property and Improvements as purposes for which Sellers are currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesusing the same.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aquis Communications Group Inc)
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all real property and interests in The Seller does not own any real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually . Except as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used3.11(a), occupied the Seller does not have an outstanding option or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of purchase any real estate property or any portion thereof or interest therein.
(eb) Subject Other than the Seller’s lease and sublease of certain real property in Lake Forest, California (the “Lake Forest Lease”), Schedule 3.11(b) sets forth a list of all leases of real property leased or subleased to market limitations the Seller. Except for the Lake Forest Lease and the other events affecting the geographical area in which any Company Property is locatedas set forth on Schedule 3.11(b), the Company Seller does not lease or sublease any real property. The Seller has made available to the Purchaser correct and complete copies of the Real Property Lease. With respect to the Real Property Lease:
(i) no party to the lease has repudiated any provision thereof;
(ii) there are no material disputes, oral agreements, or forbearance programs in effect as to the lease;
(iii) the Seller has not subleased, licensed, assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in the leasehold;
(iv) the Seller is current on the monthly rent and all other charges due under such leases;
(v) to the Improvements Seller’s Knowledge, all facilities leased have received all required approvals of Governmental Entities (including licenses and permits) required in connection with the operation thereof as currently operated by the Seller, and to the Seller’s Knowledge have been operated and maintained in accordance with applicable Laws; and
(vi) all facilities leased are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements said facilities as currently operated by the Seller.
(c) with respect to the Leased Real Property: (i) to Seller’s knowledge, the current use of such property and the operation of the Business and the Acquired Assets does not violate any instrument of record or Contract affecting such property or any applicable Law in any material respect (without any fines or monetary Liabilities attached); (ii) all buildings, structures and other improvements located on such property, including adequate all material components thereof, are, to the Seller’s knowledge, structurally sound, in good operating condition and repair, subject only to the provision of usual and customary maintenance provided in the Ordinary Course with respect to buildings, structures and improvements of like age and construction and all water, storm and sanitary sewer, gas, electricelectrical, cable steam, compressed air, telecommunication, sanitary and telephone facilities.
storm sewage lines and other utilities and systems serving such property are sufficient to enable the continued operation of such property as it is now operated in connection with the conduct of the Business and the Acquired Assets; (fiii) Neither except for the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Real Property or any portion thereofLease, and no such special assessment is pending orthere are, to the Knowledge Seller’s knowledge, no leases, subleases, licenses, concessions or other Contracts, written or oral, granting to any party or parties the right of use or occupancy of any portion of the Company, threatened. There are no pending orparcel of such property except in favor of the Seller; and (iv) there are, to the Knowledge Seller’s Knowledge, no parties (other than the Seller) in possession of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Leased Real Property.
Appears in 1 contract
Real Property. (a) Section 2.7(a) of the Company Disclosure Schedule 5.10(a) sets forth a complete list the address of each property that is owned by any of the Acquired Companies (the “Owned Real Property”) Except as set forth in Section 2.7(a) of the Company Disclosure Schedule, with respect to each Owned Real Property: (i) the Acquired Company party has a valid fee simple estate in such Owned Real Property, free and clear of all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”)Encumbrances other than Permitted Encumbrances, (ii) the Acquired Companies have not assigned, subleased, transferred, conveyed, licensed, encumbered or otherwise granted to any Person rights to use, enjoy or occupy any portion of the Owned Real Property, (iii) to the knowledge of the Company, there is no pending or threatened condemnation or similar proceeding affecting the Owned Real Property, and (vi) all facilities located on the Owned Real Property have received all approvals of Governmental Bodies required in connection with the operation thereof and have been maintained in accordance with applicable Legal Requirements.
(b) Section 2.7(b) of the Company Disclosure Schedule sets forth the address of each real property and interests in real property leased that is leased, licensed, used or occupied by the Acquired Companies (whether as lessee, sublessee, licensee or otherwise) (the “Leased Real Property” and together with the Owned Real Property the “Company or the Subsidiaries Real Property”) and a complete and correct list of all leases and subleases therefor (individuallyeach, a “Real Property Lease” ”). The Company has made available to Parent a correct and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description complete copy of each such Real Property Lease (including all amendments thereto and any related subordination and/or nondisturbance agreements to which the name any Acquired Company is a party). Except as set forth in Section 2.7(b) of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have Disclosure Schedule, with respect to each Leased Real Property: (i) good fee title to all Owned Property and (ii) the Acquired Company party has a valid leasehold interest inestate in such Leased Real Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Encumbrances other than Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating conditionEncumbrances, (ii) are free from material structural defectsthe Acquired Companies have not assigned, and subleased, transferred, conveyed, licensed, encumbered or otherwise granted to any Person rights to use, enjoy or occupy any portion of the Leased Real Property, (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the each Real Property LeasesLease is binding, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is enforceable and in full force and effect. Neither the , (iv) no Acquired Company nor any Subsidiary is (andparty thereto, nor, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge knowledge of the Company, any other Person) has occurred under any party to such Real Property Lease Lease, has breached such Real Property Lease, and there is not any condition or event which, if not remedied, would (whether with or without notice or the passage lapse of time or both, would constitute a default under the provisions of such Real Property Lease by the Acquired Company party thereto, nor to the knowledge of the Company, any other party to such Real Property Lease, (v) result to the knowledge of the Company, there is no pending or threatened condemnation or similar proceeding affecting the Leased Real Property subject to such Real Property Lease, and (vi) all facilities located on the Leased Real Property have received all approvals of Governmental Bodies required in such a defaultconnection with the operation thereof and have been maintained in accordance with applicable Legal Requirements.
(c) The Company Real Property and the Subsidiaries operation thereof by the Acquired Companies complies in all material respects with all applicable Legal Requirements and any restrictive covenant or other Encumbrance binding against such Company Real Property. The Acquired Companies have all certificates of occupancy and material Permits of not received any written notice from any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from violations of any other Person, necessary to permit the lawful use and operation Legal Requirement affecting any portion of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse EffectReal Property.
(d) Neither The Company Real Property comprises all of the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right real property used in the business of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest thereineach Acquired Company.
(e) Subject With respect to market limitations and Owned Real Property located in the other events affecting United States, the geographical area in which any Company applicable Acquired Company’s fee simple to each Owned Real Property is locatedinsured pursuant to a title insurance policy duly issued by a national title insurance company and each such title insurance policy is valid, the Company Property in full force and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, effect and no such special assessment is pending or, written claim has been made thereunder (and to the Knowledge knowledge of the Company, threatenedno fact or circumstances exist or have occurred which would be reasonably likely to result in a material claim thereunder) and will remain in full force and effect following the Closing in accordance with its terms. There are no pending orWith respect to such Owned Real Property, the Company made available to Purchaser the Knowledge most current policies of the Company, threatened condemnation or eminent domain proceedings title insurance with respect to any material portion each Owned Real Property and the most recent survey of any Company Propertyeach of the Owned Real Properties in the Company’s possession.
Appears in 1 contract
Sources: Merger Agreement (Gaming Partners International CORP)
Real Property. (aExcept as listed in Part I of Schedule 7(a) attached hereto and made a part hereof, Part I of Schedule 5.10(a7(a) sets forth to the Prior Perfection Certificate includes a complete list of all (i) real property owned by each Company located in the United States, (ii) real property to be encumbered by a Mortgage and fixture filing, which real property includes all real property owned by each Company (A) that is indicated as being subject to a mortgage on Schedule 7(a) of a Prior Perfection Certificate or (B) is acquired after the date of the Perfection Certificate delivered on the Closing Date and interests in has an appraised fair market value of at least $3,000,000 (such real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned PropertiesMortgaged Property”), (iiiii) common names, addresses and uses of each Mortgaged Property (describing material improvements located thereon) and (iv) other information relating thereto required by such Schedule. Except as listed in Part II of Schedule 7(a) attached hereto and made a part hereof, Part II of Schedule 7(a) to the Prior Perfection Certificate includes a list of all real property and interests in (i) material real property leased by each Company located in the Company or the Subsidiaries United States, (individuallyii) common names, a “Real Property Lease” addresses and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description uses of each such Real Property Lease material real property (including describing material improvements located thereon) and (iii) other information relating thereto required by such Schedule. Except as described in Schedule 7(b) attached hereto and made a part hereof and as listed in Schedule 7(b) to the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have Prior Perfection Certificate: (i) good fee title no Company has entered into any leases, subleases, tenancies, franchise agreements, licenses or other occupancy arrangements as owner, lessor or sublessor, licensor, franchisor or grantor with respect to all Owned Property any of the real property described in Schedule 7(a) and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant no Company has entered into any Leases relating to real property that is material to the terms Companies, taken as a whole, which require the consent of the applicable lease) oflandlord, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied tenant or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, other party thereto to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property LeasesTransaction.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (a) The Seller Disclosure Schedule 5.10(a) sets forth a complete list of contains (i) a list of all real property and interests in real property, including improvements thereon and easements appurtenant thereto property owned in fee by Seller Related to the Company and the Subsidiaries Business (individually, an “Owned Property” and collectively, the “Owned PropertiesReal Property”), and (ii) a list of all real property and interests in real property leased by Seller Related to the Company or the Subsidiaries Business (individually, a “Real Property Lease” and collectively, the “Leased Real Property LeasesProperty” and, together with the Owned PropertiesReal Property, being referred to herein individually as a “Company Property” and collectively as the “Company PropertiesReal Property”).
(b) as lessee or lessor, including a description With respect to each parcel of each such Owned Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have Property:
(i) Seller has good fee and marketable title to all each such parcel of Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverLiens, except (A) those Permitted Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently usedzoning and building restrictions, occupied easements, covenants, rights-of-way and other similar restrictions of record, none of which impairs the current or currently held for proposed use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, such Owned Real Property.
(ii) are free from material structural defectsThe legal description for such parcel of Owned Real Property contained in the deed thereof describes the property fully and accurately. All buildings, structures and facilities located on, and improvements to, such parcel of Owned Real Property are located within the boundary lines of such Owned Real Property and do not encroach on any easement, right of way or other encumbrance which burdens any portion of the Owned Real Property. No structures, facilities or other improvements on any parcel adjacent to the Owned Real Property encroach onto any portion of the Owned Real Property.
(iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company Seller has delivered provided to Purchaser true, correct and complete Buyer copies of the deeds and other instruments (ias recorded) by which Seller acquired such parcel of Owned Real Property, and copies of all deedstitle insurance policies, title reports opinions, abstracts and surveys for in the Owned Properties and (ii) the Real Property Leases, together possession of Seller with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject respect to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leasesparcel.
(biv) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, There are no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with outstanding options or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right rights of first refusal or other contractual right to purchasepurchase such parcel of Owned Real Property, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(ec) Subject With respect to market limitations Leased Real Property, Seller has delivered to Buyer a true and complete copy of every lease and sublease pursuant to which Seller is a party or by which it is bound (each, a “Lease”). Seller has peaceful, undisturbed and exclusive possession of the other events affecting Leased Real Property. The Leases are legal, valid, binding, enforceable, in full force and effect, and no party thereto is in default or breach under any such Lease. No event has occurred which, with the geographical area in which passage of time or the giving of notice or both, would cause a material breach of or default under any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property Leases. The Leases have been duly assigned to the Buyer and Improvements such assignments are valid and enforceable as currently operated including adequate wateragainst the landlord and third parties. No consents are required for such assignments, storm or to the extent that consents to the assignments are required, Seller has obtained such consents and sanitary sewer, gas, electric, cable and telephone facilitieshas provided Buyer with copies of same.
(fd) Neither The uses for which the Company nor any buildings, facilities and other improvements located on the Real Property are zoned do not restrict, or impair, the use of its Subsidiaries the Real Property for purposes of the Business.
(e) No Governmental Entity having the power of eminent domain over the Real Property has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending commenced or, to Seller’s Knowledge, intends to exercise the Knowledge power of eminent domain or a similar power with respect to all or any part of the Company, threatenedReal Property. There are no pending or, to the Knowledge Seller’s Knowledge, threatened condemnation, fire, health, safety, building, zoning or other land use regulatory proceedings, lawsuits or administrative actions relating to any portion of the CompanyReal Property or any other matters which do or may adversely effect the current use, occupancy or value thereof. Seller has not received notice of any pending or threatened condemnation special assessment proceedings affecting any portion of the Real Property.
(f) The Real Property and all present uses and operations of the Real Property comply in all material respects with all Laws, covenants, conditions, restrictions, easements, disposition agreements and similar matters affecting the Real Property. The Real Property and its continued use, occupancy and operation as used, occupied and operated in the conduct of the Business do not constitute a nonconforming use and is not the subject of a special use permit under any Law.
(g) The Real Property is in suitable condition for the conduct of the Business as currently conducted and as proposed to be conducted. Seller has good and valid rights of ingress and egress to and from all Real Property from and to the public street systems for all usual street, road and utility purposes.
(h) No Person other than Seller is in possession of any of the Real Property or eminent domain proceedings with respect any portion thereof, and there are no leases, subleases, licenses, concessions or other agreements, written or oral, granting to any material Person other than Seller the right of use or occupancy of the Real Property or any portion thereof. No easement, utility transmission line or water main located on the Real Property adversely affects the use of the Real Property or any Company improvement on the Real Property.
(i) All water, sewer, gas, electric, telephone and drainage facilities, and all other utilities required by any Law or by the use and operation of the Real Property in the conduct of the Business are installed to the property lines of the Real Property, are connected pursuant to valid permits to municipal or public utility services or proper drainage facilities, are fully operable and are adequate to service the Real Property in the operation of the Business and to permit compliance with the requirements of all Laws in the operation thereof. No fact or condition exists which could result in the termination or material reduction of the current access from the Real Property to existing roads or to sewer or other utility services presently serving the Real Property.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all real property To the knowledge of Sellers, the lease analysis reports furnished by Sellers to Purchaser prior to the date hereof identifying the tenants, base rent, percentage rent, breakpoints, common area maintenance cost allocations, recoveries, tenant allowances and interests capital costs, commencement date and expiration date of leases to tenants in real property, including improvements thereon and easements appurtenant thereto the shopping centers owned in fee by the Company and the Subsidiaries (individuallyand the schedules of leases signed since December 31, an “Owned Property” 1995 which do not appear on the lease analysis reports furnished by Sellers to Purchaser prior to the date hereof are true, correct and collectivelyaccurate as of the date of preparation of such information, the “Owned Properties”)except for any such inaccuracies which, when taken as a whole, would not have a Material Adverse Effect.
(ii) all real property and interests in real property leased by To the Company or the Subsidiaries (individually, a “Real Property Lease” and collectivelyknowledge of Sellers, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee insurable title to all Owned Property and the real property owned or leased by each of them (ii) the "PROPERTIES"), a valid leasehold interest inschedule of which Properties is attached hereto as SCHEDULE 2.1(h)(ii), and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (A) those Liens described in any schedule to the title insurance policies and "title bring downs" listed on SCHEDULE 2.1(h)(ii)(a) hereto and rights of existing tenants referred to in Section 2.1(h)(i), (B) the mortgage indebtedness set forth on Schedule 5.10(aSCHEDULE 2.1(h)(ii)(b) hereto, (C) mechanics', carriers', workers' or other like liens arising or incurred in the ordinary course of business, liens for taxes, assessments and other governmental charges which are not due and payable or which may thereafter be paid without penalty, subject to proration, (D) easements, covenants, rights-of-way and other Encumbrances or restrictions of record (other than those referred to in clause (A) or (F)) that, individually or in the aggregate, have not had and would not reasonably be likely to have a Material Adverse Effect, (E) zoning, building and other similar restrictions that do not and will not have a Material Adverse Effect and (BF) Permitted Exceptions. The Company Properties constitute all interests those Encumbrances that, individually or in real the aggregate, are not material in character, amount or extent and do not and will not materially adversely affect the title to or the present use of the property currently used, occupied subject thereto or currently held for use in connection with affected thereby or otherwise materially impair the business operation of the businesses of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries Subsidiaries, taken as the business is currently a whole, as presently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are.
(iii) Except as described on SCHEDULE 2.1(h)(iii) hereto, to the Knowledge knowledge of the CompanySellers, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) Subsidiaries is in default under the provisions of any Real Property Leaselease, ground lease, mortgage or operating agreement which, individually or in the aggregate, has had or would reasonably be likely to have a Material Adverse Effect, and no breach by event that, with the Company (or, to the Knowledge giving of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such , would constitute a default.
(c) The Company and default on the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation part of the Improvements and the Company Property or any drivewayssuch Subsidiary has occurred and is continuing unremedied or unwaived, roads and other means of egress and ingress to and from any Company Property and each such Permitwhich, agreement, easement individually or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violationaggregate, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected likely to have a Material Adverse Effect. To the knowledge of Sellers, neither the Company nor any Subsidiary has received notice of any monetary default or acceleration of any of the loans described on SCHEDULE 2.1(h)(ii)(b) hereto. To the knowledge of Sellers, neither the Company nor any Subsidiary has received any written notice of default for reimbursement of costs of any tenant improvements or payment of other Tenant Allowances due to (i) any anchor tenant at the Properties in excess of U.S. $250,000, individually or in the aggregate, or (ii) any other tenant which, in the case of clause (ii), would have a Material Adverse Effect.
(div) Neither To the Company nor any Subsidiary ownsknowledge of Sellers, holds, is obligated under Sellers have made available to Purchaser for its inspection originals or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations copies that are true and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied complete in all material respects with utilities of all anchor leases, ground leases, mortgages and other services as reasonably necessary for reciprocal easement agreements to which the operation Company or any Subsidiary is a party and all amendments or modifications thereof, a true, correct and complete schedule of such Company Property ground leases, mortgages and Improvements reciprocal easement agreements is attached hereto as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesSCHEDULE 2.1(h)(iv).
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (a) Section 2.10 of the Disclosure Schedule 5.10(a) sets forth a complete list of (i) description all real property of the Acquired Entities owned, leased or subject to a purchase contract or lease commitment, detailing which properties are owned and interests in real propertywhich are leased, including improvements with a brief description of all buildings and structures thereon (sometimes collectively the "Real Property"). A copy of any such purchase contract or lease (with amendments) has been delivered to Cintas. With respect to the Real Property that is owned and easements appurtenant thereto owned in fee by identified on the Company and Disclosure Schedule, except as set forth on Section 2.10 of the Subsidiaries (individually, an “Owned Property” and collectivelyDisclosure Schedule, the “Owned Properties”), (ii) all real property Acquired Entities have good and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee marketable title to all Owned Property and (ii) a valid leasehold interest inthe Real Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens liens, encumbrances, adverse claims and other matters affecting the applicable Acquired Entity's title to or possession of any nature whatsoeversuch Real Property, including, but not limited to, all encroachments, boundary disputes, covenants, restrictions, easements, rights of way, mortgages, security interests, leases, encumbrances and title objections, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating conditionliens reflected on and adequately reserved against on the Balance Sheet, (ii) are free from material structural defects, liens for real estate taxes not yet due and payable and (iii) are suitablesuch easements, sufficient restrictions and appropriate covenants presently of record which do not, in all respects for their current Cintas' reasonable judgment (which judgment will be exercised prior to Closing to the extent such easements, restrictions and contemplated uses. The Company has delivered to Purchaser truecovenants have been disclosed in Section 2.10 of the Disclosure Schedule), correct and complete copies interfere in any material respect with the use of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force a manner consistent with the Acquired Entities' present use, which easements, restrictions and effect. Neither covenants are listed on the Company nor any Subsidiary is (and, to Disclosure Schedule in a manner so that the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by to which they relate is readily identifiable (collectively the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company "Permitted Encumbrances"). All real estate and the Subsidiaries have all certificates of occupancy buildings located thereon are in material compliance with applicable zoning laws and material Permits of any Governmental Body necessary or useful for the current use regulations. All buildings and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property structures owned or leased by any other PersonAcquired Entity, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area mechanical components (including HVAC systems), roofs, fixtures and equipment located therein or thereon, are in which any Company Property is locateda state of reasonable maintenance and repair, the Company Property ordinary wear and the Improvements are sufficiently supplied in all material respects with utilities tear excepted, free of known defects, subject only to normal maintenance and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesrepair.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Sources: Merger Agreement (Cintas Corp)
Real Property. (a) The real property owned by Sellers that is to be transferred to Buyer is identified on Schedule 5.10(a3.10(a), together with all buildings, structures, residences, fixtures, landscaping, utility lines, roads, driveways, fences, parking areas, contiguous and adjacent entry rights, construction in progress, and all other improvements to such real property that are owned by Sellers or any Affiliate, located in and upon such real property, and used primarily in the business and operation of the Publications, together with all rights, privileges, and easements appurtenant to the foregoing (all of the foregoing collectively referred to as the “Owned Real Property”);
(b) Schedule 3.10(b) sets forth a complete and accurate list of all leasehold interests of Sellers used primarily in the business and operation of the Publications (i) all the “Leased Real Property”). The Leased Real Property, the real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by to be subject to the Company Operating Leases and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, are collectively referred to as the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” ”. ▇▇▇▇▇ ▇▇▇▇▇ Purchase AgreementMorris Publishing Group 23
(c) Good and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good marketable fee title to all each parcel of Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leasesdisclosed on Schedule 3.10(a) is owned by Sellers set forth on such schedule, in each case free and clear of all Liens any Liens, easements, rights-of-way, licenses, use restrictions, claims, charges, options, rights of first offer, rights of first refusal or title defects, of any nature whatsoever, except for Permitted Encumbrances (Aas defined below). As used in this Agreement, the term “Permitted Encumbrances” means (i) those Liens for Taxes not yet due and payable; (ii) Liens for Taxes which are being contested in good faith and by appropriate proceedings in the amount of which a reserve has been created and set forth on Schedule 5.10(athe Closing Date Balance Sheet; (iii) and (B) Permitted Exceptions. The Company Properties constitute all interests carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in real property currently used, occupied the ordinary course of business consistent with past practice or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for being contested in good faith and by appropriate proceedings in the continued operation amount of which a reserve has been created on the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon areClosing Date Balance Sheet (which reserve under clauses (ii) or (iii) shall, to the Knowledge extent Sellers are successful in finally, definitively and irrevocably contesting any such Liens and Buyer effectively gets the benefit thereof, will upon written notice and delivery of the Companysatisfactory proof thereof, be refunded to Sellers); (iiv) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leaseseasements, rights-of-way, options, subleasesencroachments, licenses, occupancy agreementsrestrictions, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads conditions and other means of egress and ingress similar encumbrances which are not objected to and from any Company Property and each such Permit, agreement, easement by Buyer as a Title Objection under Section 5.13(c) or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased waived by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.Buyer;
Appears in 1 contract
Sources: Asset Purchase Agreement (New Media Investment Group Inc.)
Real Property. (a) Schedule 5.10(a) 2.12 sets forth a true, complete list and correct listing of all leases covering the real property in which GJP holds the lessee's interest (collectively, the "GJP Leases"). Except as set forth in Schedule 2.12, GJP holds the lessee's interest in all of the GJP Leases, free and clear of all liens, claims and encumbrances. GJP does not own any real property.
(b) Schedule 2.12 sets forth a true, complete and correct listing of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by leases to which any of the Company and the Subsidiaries GJP Leases are subordinated (individually, an “Owned Property” and collectively, the “Owned Properties”"Underlying GJP Leases"), and (ii) all real property and interests in real property leased by Subleases of any of the Company or the Subsidiaries GJP Leases (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and"GJP Subleases"). True, together complete and correct copies of each GJP Lease, Underlying GJP Lease and GJP Sublease have been delivered or made available by GJP to TPEG.
(c) Except as set forth in Schedule 2.12, GJP has no knowledge of and has not received any notice of default from the holder of the lessor's interest in any GJP Leases or Underlying GJP Leases or the holder of the lessee's interest in any GJP Subleases that has not heretofore been cured.
(d) Except as set forth in Schedule 2.12, neither the premises leased under any GJP Lease, the use thereof by GJP nor any condition existing with respect thereto, violates any laws, ordinances, regulations or requirements (including, without limitation, zoning and use regulations and building department requirements) affecting the same, which violation would materially interfere with the Owned Propertiesoperation or use of such premises or materially diminish the value thereof.
(e) Except as set forth in Schedule 2.12, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”best knowledge of GJP, no Person has any interest in the lessee's interest under any GJP Lease, Underlying GJP Lease or GJP Sublease or has any right or option to acquire same or any part thereof.
(f) as lessee or lessor, including a description As of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease this Agreement, GJP has no knowledge that any Person has paid or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest inbeen paid any money, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of or has made or contemplated making any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangementsagreement, written or oral, granting with respect to the premises leased under any Person GJP Lease, Underlying GJP Lease or GJP Sublease or portion thereof which would preclude, be in competition with or otherwise interfere with the right continued use and occupancy of such property by the Surviving Corporation or could adversely affect the ability of the lessee thereof to purchase, or the right to use or occupy renew any such Company Property, except the Real Property LeasesGJP Lease.
(bg) Each of the Real Property Leases Hazardous materials (as such term is defined in full force and effect. Neither the Company nor any Subsidiary is (andlaw applicable to GJP or its properties or assets) have not been released or treated on any property leased, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge best knowledge of the CompanyGJP, occupied or used by GJP in its television production or other business activities and have not been generated, used, handled or stored on, or transported to or from, any other Person) such property. GJP has occurred under any Real Property Lease whichdisposed of all wastes, if not remediedincluding those wastes containing hazardous materials, would (whether in compliance with or without notice or the passage of time or both) result in such a default.
(c) The Company all applicable laws and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatenedPermits. There are no past, pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.to
Appears in 1 contract
Sources: Merger Agreement (Producers Entertainment Group LTD)
Real Property. (a) Schedule 5.10(aAnnex B and Annex C set forth each parcel of real property owned by a Seller and used in or necessary for the conduct of the Purchased Business as currently conducted (together with all buildings, fixtures, structures and improvements situated thereon and all easements, rights-of-way and other rights and privileges appurtenant thereto, including, with respect to each property, the address location and use.) sets forth a complete list With respect to each parcel of Transferred Real Property:
(i) all real property Each Seller has good and interests in real propertymarketable fee simple title, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (A) those Liens set forth on Schedule 5.10(a) Permitted Encumbrances and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business those Encumbrances set forth on Section 3.10(a)(i) of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, Disclosure Schedules;
(ii) are free from material structural defectsexcept as set forth on Section 3.10(a)(ii) of the Disclosure Schedules, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company each Seller has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications not leased or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Transferred Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become portion thereof (a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.“Third Party Lease”); and
(diii) Neither the Company nor any Subsidiary ownsthere are no unrecorded outstanding options, holds, is obligated under rights of first offer or is a party to, any option, right rights of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate purchase such Transferred Real Property or any portion thereof or interest therein.
(eb) Subject Sellers do not lease any real property for the conduct of the Purchased Business as currently.
(c) Section 3.10(c) of the Disclosure Schedules contains a true, correct and complete list of all deeds, Permits, and other documents that evidence the title to market limitations the Transferred Water Rights, or which set forth contractual rights and obligations of the Transferred Water Rights, and, except as set forth in Section 3.10(c) of the Disclosure Schedules, each Seller has provided or made available to Buyer a true and correct copy of all such documents. Each of the Sellers have good and marketable title the Transferred Water Rights, free and clear of all Liens, other events than Permitted Encumbrances and other than as listed on Section 3.10(c). The water supplies legally and physically available to the Sellers under the Transferred Water Rights are, as such Transferred Water Rights have historically been administered by the applicable Governmental Authorities and together with the water leased pursuant to the Water Lease, sufficient for the commercial and industrial activities of the Purchased Business as they are currently conducted. During the three (3) years prior to the date of this Agreement, none of the Sellers have received any written notice of any pending or threatened claim alleging abandonment, forfeiture, curtailment, or cancellation of, or affecting title to, any of the Transferred Water Rights.
(d) The Sellers have not received any written notice of (i) material violations of building codes and/or zoning ordinances or other governmental or regulatory Laws affecting the geographical area in Transferred Real Property or Transferred Water Rights, (ii) existing, pending or threatened condemnation proceedings affecting the Transferred Real Property or Transferred Water Rights, or (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which any Company could reasonably be expected to materially and adversely affect the ability to operate the Transferred Real Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate wateror Transferred Water Rights as they have historically been administered by the applicable Governmental Authorities.
(e) Except as set forth in Section 3.10(e) of the Disclosure Schedules, storm the Transferred Real Property is sufficient for the continued conduct of the Purchased Business after the Closing in substantially the same manner as conducted prior to the Closing and sanitary sewer, gas, electric, cable and telephone facilitiesconstitutes all of the real property to conduct the Purchased Business as currently conducted.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge Section 3.10(f) of the CompanyDisclosure Schedules lists (a) all reclamation permits, threatened. There are no pending oramendments, to revisions, agreements, orders or other contractual obligations that establish the Knowledge of the Company, threatened condemnation or eminent domain proceedings reclamation obligations with respect to any material portion the ▇▇▇▇▇▇▇ Sand property, and (b) all correspondence, notices or other written communications received from the Colorado Division of any Company PropertyReclamation, Mining & Safety regarding the ▇▇▇▇▇▇▇ Sand property since January 1, 2008.
Appears in 1 contract
Sources: Asset Purchase Agreement (Continental Materials Corp)
Real Property. (a) Schedule 5.10(a2.1(d) sets forth contains a complete and accurate list and brief description of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company Leased Real Property and the Subsidiaries improvements (individuallyincluding buildings and other structures) located on such Leased Real Property (including a brief description of the use to which such property is being employed and, an “Owned Property” and collectivelyin the case of any such property which is leased, the “Owned Properties”termination date or notice requirement with respect to termination, annual rental, additional rent and renewal or purchase options and rights of first refusal). Complete and correct copies of all such Leases, title insurance policies and guarantees have been delivered by Seller to Buyer as of the date hereof;
(b) Except as provided in Schedule 2.1(d), (ii) Seller has not received any notice of a pending or contemplated annexation or condemnation or similar proceedings affecting, or which may affect, all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name any portion of the third party lessor or lessee and the date Real Property;
(c) The tenancies described on Schedule 2.1(d) constitute all of the lease written and oral agreements which grant rights of use or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant respect to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, Property; except (A) those Liens set forth as otherwise noted on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company2.1(d), (i) in good operating condition, (iithe Leases described on Schedule 2.1(d) are free from material structural defects, valid and (iii) are suitable, sufficient subsisting and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither , have not been amended, modified or supplemented and the Company nor tenants, licensees or occupants thereunder are in actual possession, (ii) no landlord or sub-landlord has asserted any Subsidiary claim which would in any way affect the relevant tenant's (or subtenant's) right of use, possession or occupancy, (iii) there are no pending summary proceedings or other legal actions for eviction of any such tenant (or subtenant), (iv) no notice of default or breach on the part of the tenant (or subtenant) under any of the Leases has been received by Seller from the landlord or sub-landlords thereunder, (v) all decorating, repairs, alterations and other work required to be performed by the tenant (or subtenant) under each of the Leases has been performed, and (vi) no consent is (and, necessary from any of the landlords or sub-landlords with regard to the Knowledge consummation of the Company, no other Person is) in default transactions contemplated by this Agreement. No landlord or sub-landlord under any of the Leases has any right or option to terminate the Lease for any reason other than a default thereunder by the applicable tenant (or subtenant) of the Real Property Lease, and no breach by landlord or sub-landlord has a "put" option with regard to any such Real Property. The copies of the Company (or, Leases delivered to SFX constitute the sole agreements binding upon Seller with respect to the Knowledge Real Property. The rents set forth in Schedule 2.1(d) are the actual rents, income and charges presently being paid by Seller under the Leases. No security deposits have been paid by any tenants (or subtenants) of the CompanyReal Property, except as set forth on Schedule 2.1(d);
(d) (reserved)
(e) (reserved)
(f) (reserved)
(g) (reserved)
(h) Except as set forth on Schedule 2.1(d), there are no commissions or other compensation now or hereafter payable to any broker or other Person) has occurred agent under any Real Property Lease whichwritten or oral agreement or understanding with such broker or agent in relation to any of the leases to which Seller is a party or any extension thereof. With respect to any and all such brokerage commissions, if not remedied, would (whether with Seller covenants and agrees to pay any such brokerage commissions or without notice compensation at or prior to the passage of time or both) result in such a default.Closing Date;
(ci) The Company All certificates, permits and the Subsidiaries have all certificates of occupancy and material Permits of licenses from any Governmental Body necessary or useful for having jurisdiction over the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, Real Property which are necessary to permit the lawful use and operation of the Improvements buildings and improvements on or constituting the Company Real Property or any drivewaysas they presently exist have been obtained, roads and other means of egress are now, and ingress will continue to and from any Company Property and each such Permitbe at all times before the Closing Date, agreement, easement or other right is in full force and effect, and and, to the best of the knowledge of Seller, there is no pending threat of modification, cancellation, termination or expiration of any such certificate, permit, approval or license;
(j) All utilities required for the operation of the Real Property either enter the Real Property through adjoining public streets or, if they pass through adjoining private land, do so in accordance with valid public easements or private easements; all of said public utilities are installed and operating; and all installation and connection charges have been or will be paid in full prior to the Closing Date;
(k) Seller has received no notices of default from any third party who shall be benefited by any covenant, restriction, condition or agreement contained in any instrument affecting the Real Property, and, to the best of Seller's knowledge, there is no violation of any such covenant, restriction, condition or agreement;
(l) (reserved)
(m) There are no charges, complaints, actions, proceedings or investigations pending or, to the Knowledge best of the Companyknowledge of Seller, threatened proceeding Threatened against or involving the Real Property or Seller as owner of the Real Property; the Real Property complies with all applicable Legal Requirements, including, to the best of the Seller's knowledge, the Americans with Disabilities Act;
(n) Seller has not received any notice from any insurance company which could result has issued a policy with respect to the Real Property or from any landlord of the Real Property requesting performance of any structural or other repairs or alterations to the Real Property;
(o) To the best of Seller's knowledge, (i) the improvements constituting a part of the Real Property are structurally sound (including, without limitation, structural walls, foundation and roof), and the building systems servicing the same (i.e., heating, ventilation, air conditioning, electrical, plumbing, fire detection and sprinklering) are in good working order, and (ii) all parking areas drain efficiently and in compliance with applicable Legal Requirements;
(p) There are no mechanics', materialmen's or similar liens against Seller's estate in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Real Property or any portion thereof, and no such special assessment except for work performed with the prior written consent of SFX;
(q) No current zoning, building or similar law, ordinance, order or regulation is pending oror will be violated by the continued maintenance, to operation or use of any buildings or other improvements on or constituting the Knowledge Real Property (the "Structures") or by the continued maintenance, operation or use of the Companyparking areas as long as said maintenance, threatenedoperation or use does not materially change from the current maintenance, operation or use. There are no pending orSeller does not have any knowledge of any pending, Threatened or contemplated changes to any zoning, building or similar law, ordinance, order or regulation which may affect the Knowledge maintenance, operation or use of the CompanyReal Property;
(r) (reserved)
(s) (reserved)
(t) Seller is not a foreign person within the meaning of Section 1445 of the Code. At the Closing, threatened condemnation or eminent domain proceedings with respect to any material portion Seller shall deliver an executed certificate in the applicable form set forth in Treasury Regulation Section 1.1445-2(b)(2);
(u) Except as set forth on Schedule 2.1(d) and except for ad valorem real estate taxes not yet due and payable, Seller has no knowledge of any Company Property.assessment (for real estate taxes, sewer, water, or other municipal improvements, or not-for-profit associations) payable in annual
Appears in 1 contract
Real Property. (a) Pasani does not own any real property, and except as otherwise disclosed in Schedule 5.10(a) 2.19, Shareholders do not own any real property that is used or useful in connection with the operation of Pasani’s business. Schedule 2.19 sets forth a complete and correct list of all real properties or premises that are leased or utilized in whole or in part by Pasani and Shareholders in the operation of Pasani, which property constitutes all of the real property necessary to operate the business in the manner in which it are presently operated.
(b) As to each leased property, Schedule 2.19 sets forth the (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”)parties thereto, (ii) all real property and interests in real property leased by the Company or the Subsidiaries lease term, (individuallyiii) annual rent, a “Real Property Lease” and collectively(iv) renewal option, the “Real Property Leases” andif any, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (iiv) a valid leasehold interest in, any other material terms. Complete and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear correct copies of all Liens leases and guarantees of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) leases have been made available to Nascent. Each lease of premises utilized by Pasani and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use Shareholders in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company Pasani is legal, valid and binding in all material respects, as between Pasani, Shareholders and the Subsidiaries as the business is currently conducted. All of the Company Properties other party or parties thereto, and buildings, fixtures Pasani and Improvements thereon are, to the Knowledge of the Company, (i) Shareholders are tenants or possessors in good operating conditionstanding thereunder, (ii) are free from of any material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies default or breach on the part of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications Pasani or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (Shareholders and, to the Knowledge actual knowledge of Shareholders and Pasani’s officers and directors, after due inquiry and investigation, free of any material default or breach on the part of the Company, no other Person is) in default under any Real Property Leaselessors thereunder, and no breach by the Company (or, to the Knowledge has use and occupancy of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or premises provided for in the passage of time or both) result in such a defaultleases therefor.
(c) The Company real property, as well as the present uses thereof, conform in all respects with all restrictive covenants and with all applicable zoning laws, rules and regulations, except as would not have, individually or in the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Propertyaggregate, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and a Pasani Material Adverse Effect. Except as expressly disclosed on Schedule 2.19: (i) there is no pending or, to the Knowledge of the Company, threatened condemnation or similar proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property real property or any portion thereof, and no such special assessment action is pending orpresently contemplated or threatened; (ii) there are no easements, covenants, restrictions and/or reservations of record affecting the real property and there are no easements, claims of easement or rights of way affecting the real property which are not shown on the public record; (iii) there are no encroachments on the real property. Pasani and Shareholders have not caused any construction, erection, alteration or repairs of any structures or improvements on the real property to be done for which charges therefor remain unpaid, or contracted for any material to be delivered to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Propertyreal property for which charges therefor remain unpaid.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nascent Wine Company, Inc.)
Real Property. (aSection 3.06(a) Schedule 5.10(a) of the Seller Disclosure Letter sets forth a complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto property owned in fee by Seller or a Seller Subsidiary and used or held by Seller or a Seller Subsidiary for use primarily in the Company and operation or conduct of the Subsidiaries Business (individually, an “Owned Property” and collectively, the “Owned PropertiesReal Property”) and true and complete copies of all deeds (or comparable instruments, with respect to Seller Subsidiaries), (iiand title insurance policies related to the Real Property. Section 3.06(b) of the Seller Disclosure Letter sets forth a complete list of all real property and interests in real property leased by Seller or a Seller Subsidiary and used or held by Seller or a Seller Subsidiary for use primarily in the Company operation or conduct of the Subsidiaries Business (individually, a “Real Property Lease” Leased Property”). Seller and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Seller Subsidiaries have (i) good and insurable fee title to all Owned Real Property and (ii) a good and valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant title to the terms of the applicable lease) of, leasehold estates in all Company Properties subject to Leased Property (Real Property Leasesor Leased Property being sometimes referred to herein, individually, as “Transferred Real Property”), in each case free and clear of all Liens of any nature whatsoeverLiens, except (A) those Liens set forth on Schedule 5.10(adescribed in clauses (i) and through (iv) of Section 3.05(a), (B) Permitted Exceptions. The Company Properties constitute all interests leases, subleases and similar agreements set forth in real property currently used, occupied or currently held for use in connection with the business Section 3.06 of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the CompanySeller Disclosure Letter, (iC) in good operating conditioneasements, covenants, rights-of-way, restrictions and other similar matters of record, (D) any conditions that may be shown by a current, accurate survey or physical inspection of any Transferred Real Property made prior to Closing, and (E)(i) zoning, building and other similar codes and restrictions, (ii) are free from material structural defectsLiens that have been placed by any developer, landlord or other third party on property over which Seller or any Seller Subsidiary has easement rights or on any Leased Property and subordination or similar agreements relating thereto, and (iii) are suitableunrecorded easements, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leasescovenants, rights-of-way, optionsrestrictions and other similar matters, subleasesnone of which items set forth in this clause (E), licensesindividually or in the aggregate, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person materially impairs the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful continued use and operation of the Improvements and Transferred Real Property to which they relate in the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge conduct of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements Business as currently operated including adequate waterconducted. This Section 3.06 does not relate to environmental matters, storm and sanitary sewer, gas, electric, cable and telephone facilitiessuch items being the subject of Section 3.14.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (a) Schedule 5.10(aSection 4.09(a) of the Seller Disclosure Schedules sets forth a true and complete list list, as of the date of this Agreement, of all real property owned by Seller or any of its Subsidiaries (collectively, the "Owned Real Property"). With respect to the Owned Real Property:
(i) Seller or one or more of its Subsidiaries has good, marketable and valid fee simple title to the Owned Real Property, free and clear of all real property and interests in real propertyEncumbrances, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), except Permitted Encumbrances;
(ii) Seller has, prior to the date hereof, delivered to Buyer copies of all deeds vesting title to the Owned Real Property into Seller or its Subsidiaries and any existing title policies, title commitments, title reports and surveys currently in Seller's possession or control with respect to the Owned Real Property;
(iii) There are no outstanding rights, options, rights of first refusal, rights of first offer, conditional sales or similar rights or agreements to purchase or otherwise acquire any of the Owned Real Property, or any portion thereof or interest therein;
(iv) Such Owned Real Property is in compliance with the terms of any restrictive covenants and easements to which such Owned Real Property is subject; and
(v) Neither Seller nor, to Seller's Knowledge, any of its Subsidiaries has received any written notice of any condemnation Proceeding or any pending Proceeding to change or redefine the zoning classification of all of any portion of such Owned Real Property.
(b) Section 4.09(b) of the Seller Disclosure Schedules sets forth a true and complete list, as of the date of this Agreement, of each lease to which Seller or any of its Subsidiaries is a party as a lessee for real property and interests in real property leased by the Company or the Subsidiaries (individuallyeach, a “"Real Property Lease” " and collectivelysuch real property the "Leased Real Property"). Seller has, prior to the “Real Property Leases” anddate hereof, together with the Owned Properties, being referred made available to herein individually as a “Company Property” Buyer complete and collectively as the “Company Properties”) as lessee or lessor, including a description accurate copies of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, and supplements thereto). The Company Properties are not subject With respect to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Propertyeach Real Property Lease, except as set forth in Section 4.09(b) of the Seller Disclosure Schedules, as of the date of this Agreement:
(i) Seller or its Subsidiary that is a party to such Real Property Leases.
(b) Each of the Real Property Leases is in full force Lease holds a valid, subsisting and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default enforceable leasehold interest under any such Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any such Real Property Lease whichis legal, if not remediedvalid and binding on Seller or its Subsidiary that is a party to such Real Property Lease, would (whether with in all cases subject to bankruptcy, insolvency, reorganization, moratoria, or without notice similar laws now or the passage hereafter in effect relating to creditor's rights generally or to general principles of time or both) result in such a default.equity;
(cii) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Such Real Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right Lease is in full force and effect, and there is no pending without any material default thereof by Seller or any of its Subsidiaries or, to the Knowledge Seller's Knowledge, any other party thereto, and no termination, condition or other event by Seller or any of the Companyits Subsidiaries or, threatened proceeding to Seller's Knowledge, any other party thereto, has occurred which could result in the material and adverse modification (whether with or cancellation thereof. No default or violationwithout notice, or event that with the lapse of time or giving of notice the happening or both would become a default or violation, has occurred in the due observance occurrence of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or event) would reasonably be expected to have constitute a Material Adverse Effect.material default thereunder; and
(diii) Neither the Company nor any Subsidiary ownsSeller nor, holdsto Seller's Knowledge, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received any written notice of any material special assessment condemnation Proceedings relating to the Leased Real Property.
(c) Neither Seller nor any Company Property of its Subsidiaries leases, subleases or otherwise permits the occupancy by any third party of all or any portion thereofof the Real Property, and there are no such special assessment is pending or, to the Knowledge Persons in possession of any of the CompanyReal Property other than Seller and its Subsidiaries.
(d) The Real Property constitutes all of the land, threatened. There buildings, structures, improvements, fixtures or other interests and rights in real property that are used or occupied by Seller and its Subsidiaries in connection with the Business.
(e) Each parcel of Real Property abuts on and has direct vehicular access to a public road or has access to a public road via a permanent, irrevocable, appurtenant easement benefiting such Real Property, is supplied with public or quasi-public utilities appropriate for the operation of the Business.
(f) To Seller's Knowledge, no part of any building, structure, fixture or other improvement located on the Real Property encroaches on any other real property and there are no pending orbuildings, to structures, fixtures or other improvements primarily situated on any adjoining property which encroach on the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Real Property.
Appears in 1 contract
Real Property. (a) Schedule 5.10(aSection 4.10(a) of the Disclosure Schedules sets forth a complete list each parcel of real property owned by ▇▇▇▇▇ Road and used in or necessary for the conduct of the Business as currently conducted (together with all buildings, fixtures, structures and improvements situated thereon and all easements, rights-of-way and other rights and privileges appurtenant thereto, collectively, the "Owned Real Property"), including with respect to each property, the address location and use. Seller has delivered to Buyer copies of the deeds and other instruments (as recorded) by which Seller acquired such parcel of Owned Real Property, and copies of all title insurance policies, opinions, abstracts and surveys in the possession of Seller with respect to such parcel. With respect to each parcel of Real Property:
(i) all real property ▇▇▇▇▇ Road has good and interests in real propertymarketable fee simple title, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (A) those Liens set forth on Schedule 5.10(a) Permitted Encumbrances and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business those Encumbrances set forth on Section 4.10(a)(i) of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, Disclosure Schedules;
(ii) are free from material structural defectsexcept as set forth on Section 4.10(a)(ii) of the Disclosure Schedules, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company ▇▇▇▇▇ Road has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications not leased or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting otherwise granted to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Owned Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation portion thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.; and
(diii) Neither the Company nor any Subsidiary ownsthere are no unrecorded outstanding options, holds, is obligated under rights of first offer or is a party to, any option, right rights of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate purchase such Owned Real Property or any portion thereof or interest therein.
(eb) Subject to market limitations Section 4.10(b) of the Disclosure Schedules sets forth each parcel of real property leased by Seller and the other events affecting the geographical area used in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably or necessary for the operation conduct of such Company Property and Improvements the Business as currently operated conducted (together with all rights, title and interest of Seller in and to leasehold improvements relating thereto, including, but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the "Leased Real Property"), and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether written or oral), including adequate waterall amendments, storm extensions renewals, guaranties and sanitary sewerother agreements with respect thereto, gaspursuant to which Seller holds any Leased Real Property (collectively, electric, cable the "Leases"). Seller has delivered to Buyer a true and telephone facilities.complete copy of each Lease. With respect to each Lease:
(fi) Neither such Lease is valid, binding, enforceable and in full force and effect, and Seller enjoys peaceful and undisturbed possession of the Company Leased Real Property;
(ii) Seller is not in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, passage of time or both, would constitute such a breach or default, and Seller has paid all rent due and payable under such Lease;
(iii) Seller has not received nor given any of its Subsidiaries has received written notice of any material special assessment relating default or event that with notice or lapse of time, or both, would constitute a default by Seller under any of the Leases and, to the Knowledge of Seller, no other party is in default thereof, and no party to any Company Lease has exercised any termination rights with respect thereto;
(iv) Seller has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof; and
(v) Seller has not pledged, and no such special assessment is mortgaged or otherwise granted an Encumbrance on its leasehold interest in any Leased Real Property.
(c) Seller has not received any written notice of (i) material violations of building codes and/or zoning ordinances or other governmental or regulatory Laws affecting the Real Property, (ii) existing, pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, or threatened condemnation proceedings affecting the Real Property, or eminent domain proceedings with respect (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which could reasonably be expected to materially and adversely affect the ability to operate the Real Property as currently operated. Neither the whole nor any material portion of any Company PropertyReal Property has been damaged or destroyed by fire or other casualty.
(d) The Real Property is sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted prior to the Closing and constitutes all of the real property necessary to conduct the Business as currently conducted.
Appears in 1 contract
Real Property. (a) Schedule 5.10(aSection 3.11(a) sets forth a complete list of the Disclosure Schedules lists and describes briefly all real property that any of the Company and its Subsidiaries owns. With respect to each parcel of owned real property:
(i) all real property the identified owner has good and interests in marketable title to the parcel of real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverLiens, except for Permitted Liens;
(Aii) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently usedthere are no pending, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Sellers and the Company, (i) in good operating conditionthreatened condemnation Actions or Proceedings relating to the property or other matters materially affecting the current use, (ii) are free from material structural defectsoccupancy, and or value thereof;
(iii) the legal description for the parcel contained in the deed thereof describes such parcel fully and adequately, the buildings and improvements are suitablelocated within the boundary lines of the described parcels of land, sufficient are not in material violation of applicable setback requirements, zoning laws and appropriate ordinances (and none of the properties or buildings or improvements thereon are subject to "permitted non-conforming use" or "permitted non-conforming structure" classifications) and do not encroach on any easement which may burden the land;
(iv) all facilities have received all approvals of governmental authorities (including material Licenses) required in connection with the ownership and operation thereof, and have been operated and maintained in accordance with applicable Laws in all respects for their current material respects;
(v) there are no leases, subleases, licenses, concessions or other agreements, written or oral, granting to any party or parties the right of use or occupancy of any portion of the parcel of real property;
(vi) there are no outstanding rights of first refusal to purchase the parcel of real property or any portion thereof or interest therein;
(vii) there are no parties (other than the Company and its Subsidiaries) in possession of the parcel of real property, other than tenants under any leases disclosed in Section 3.11(a) of the Disclosure Schedules who are in possession of the space to which they are entitled.
(b) Section 3.11(b) of the Disclosure Schedules hereto sets forth a true, correct and complete list of all real estate or facilities leased, occupied or used by the Company, together with a list of each lease, sublease, License or any other instrument under which the Company claims or holds such leasehold or other interest or right to the use thereof (the "Leases"), identifying in each instance whether any party is required to grant consent to the transfer of such leasehold interest pursuant to the transactions contemplated usesherein, the location of the premises, and the date and term of the agreement. The Prior to the date hereof, the Company has delivered made available to Purchaser true, correct and complete copies of all of the Leases set forth in Section 3.11(b) of the Disclosure Schedules and any related agreements material thereto. With respect to each Lease described in Section 3.11(b) of the Disclosure Schedules:
(i) all deedsSuch Lease is valid, title reports and surveys for the Owned Properties and (ii) the Real Property Leasessubsisting, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither effect and binding upon the Company nor any Subsidiary is (and, to the Knowledge of Sellers' Knowledge, upon the Company, other parties thereto in accordance with their terms.
(ii) no other Person is) party to the Lease is in default under any Real Property Leasematerial breach or default, and no event has occurred which, with notice or lapse of time, would constitute a material breach by or default or permit termination, modification or acceleration thereunder;
(iii) no party to the Lease has repudiated any material provision thereof;
(iv) there are no material disputes, oral agreements, or forbearance programs in effect as to the Lease;
(v) none of the Company and its Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in the leasehold interest;
(or, vi) all of the facilities set forth in Section 3.11(b) of the Disclosure Schedules are equipped in conformity with all Laws applicable to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and its Subsidiaries and have received all approvals of Governmental and Regulatory Authorities (including material licenses and permits) required in connection with the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Propertythereof, and any agreement, easement or other right from any other Person, necessary to permit the lawful use have been operated and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is maintained in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that accordance with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied applicable Laws in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesrespects.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (a) Schedule 5.10(aSection 3.16(a) sets forth of the Sellers’ Disclosure Schedules contains a correct and complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” of such Seller and collectively, the “Real Property Leases” andsuch Company, together with the Owned Properties▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, being referred to herein individually as a “Company Property” ▇▇▇▇, ▇▇▇▇▇ and collectively as the “Company Properties”country of such property.
(b) as lessee or lessor, including a description of each such Real Property Lease (including the name Upon completion of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Pre-Closing Transactions, such Company and the Subsidiaries shall have (i) good fee title to all Owned Property and (ii) a good, valid leasehold interest inand, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of extent such a concept is recognized under local Law, marketable fee simple title (or the applicable leaseequivalent local Law) ofto such Owned Real Property, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except (A) those Liens set forth on Schedule 5.10(a) and (B) for Permitted ExceptionsEncumbrances. The Company Properties constitute all interests in real property currently usedUpon Closing, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildingsMonterrey Property Transitional Owner shall have good, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (valid and, to the Knowledge of extent such a concept is recognized under local Law, marketable fee simple title (or the Company, no other Person isequivalent local Law) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge Monterrey Property, free and clear of all Encumbrances, except for Permitted Encumbrances and shall be fully authorized and empowered to sell to Buyer’s designee the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultMonterrey F&B Property.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation Upon completion of the Improvements and the transactions contemplated in Section 5.20, a Company Property or any drivewaysBuyer’s designee shall have good, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending orvalid and, to the Knowledge extent such a concept is recognized under local Law, marketable fee simple title (or the equivalent local Law) to the Monterrey F&B Property, subject to the provisions of Section 5.20, as applicable, free and clear of all Encumbrances, except for Permitted Encumbrances.
(d) Section 3.16(d) of the Sellers’ Disclosure Schedules contains a correct and complete list of all real property subject to Leases, together with the street address and city, state and country of such property.
(e) Correct and complete copies of the Leases have been made available to Buyer.
(f) Upon completion of the Pre-Closing Transactions, such Company shall have a good and valid leasehold, license or comparable interest relating to the Leased Real Property of such Company, threatened proceeding which could result free and clear of all Encumbrances, except for Permitted Encumbrances.
(g) Upon completion of the Pre-Closing Transactions, each Lease shall be a binding and valid obligation of such Company party thereto and, to Sellers’ Knowledge, the other party thereto, enforceable in accordance with its terms, subject to the Enforceability Limitations.
(h) With respect to the Leased Real Property of such Company or the Business, neither Seller nor such Company has received or provided any written notice of (i) any material and adverse modification or cancellation thereof. No default or violation, breach under a Lease for which there exists any ongoing obligations or liability or (ii) any event or occurrence that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had resulted or would reasonably be expected to have result (with or without the giving of notice, the lapse of time or both) in a Material Adverse Effectmaterial default for which there exists any ongoing obligations or liability with respect to any such Lease.
(di) Neither Upon completion of the Company Pre-Closing Transactions and the transactions described in Section 5.19 and Section 5.20, neither Seller nor any Subsidiary owns, holds, Company is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of or lease any real estate of the Real Property, the Monterrey Property or any other real property or portion thereof or interest therein.
(ej) Subject to market limitations and the To Sellers’ Knowledge, there are no material violations of any zoning ordinances, building codes or other events governmental or regulatory Laws affecting the geographical area in which any Company Real Property is located, or the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesMonterrey Property.
(fk) Neither To Sellers’ Knowledge, as of the date of this Agreement, neither Sellers nor such Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property condemnation proceeding or any portion thereof, and no such special assessment is pending or, to the Knowledge proposed action or agreement for taking in lieu of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company the Real Property or the Monterrey Property.
(l) Upon completion of the Pre-Closing Transactions and the transactions described in Section 5.20, the Real Property and the real property subject to the provisions of Section 5.20 are the only real property and interests in real property that are necessary or material to the operation and continued conduct of the Business in substantially the same manner in all material respects as currently conducted.
(m) Notwithstanding anything herein to the contrary, Section 3.4, Section 3.8, Section 3.9 and this Section 3.16 contain the only representations and warranties by any Seller in this Agreement relating to real property.
Appears in 1 contract
Sources: Stock Purchase Agreement (Owens-Illinois Group Inc)
Real Property. (a) Set forth in Section 5.11(a) of the Disclosure Schedule 5.10(a) sets forth is a true, complete and correct list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company Companies and the Subsidiaries their interest therein (individually, an “Owned Property” and collectively, the “Owned PropertiesReal Property”).
(b) Set forth in Section 5.11(b) of the Disclosure Schedule is a true, complete and correct list of all leases, subleases, and licenses under which the Companies are the lessees, sublessee or licensee of real property, together with all amendments, restatement and modifications thereto (the “Leases”), (ii) all including the address of each leased, subleased or licensed real property and interests in (the real property leased by leased, subleased, licensed or occupied pursuant to the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, Leases being referred to herein as the “Leased Real Property LeasesProperty” and, together with the Owned PropertiesReal Property, being referred to herein individually as a “Company Property” and collectively as the “Company PropertiesReal Property”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company True, correct and the Subsidiaries have complete copies of (i) good fee title to all Owned Property the Leases, and (ii) a valid leasehold interest inall title policies and commitments (where no policy was issued) naming the applicable Company, as the insured party, documents evidencing the exceptions to title shown thereon and enjoys peaceful and undisturbed surveys for the Owned Real Property that are in the possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property LeasesCompanies or their Affiliates, in each case free case, have been made available to Purchaser.
(c) The Owned Real Property and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) Leased Real Property and (B) Permitted Exceptions. The Company Properties the Leases constitute all interests in real property (i) currently used, occupied or currently held for use by the Companies in connection with the business Ordinary Course of the Company Business, and the Subsidiaries and which are (ii) necessary for the continued operation of the business of the Company and Companies in the Subsidiaries as the business is currently conducted. All Ordinary Course of the Company Properties and Business.
(d) The Real Property, including all buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) other improvements constituting a part thereof is in good operating condition, condition (iiordinary wear and tear excepted) are free from material structural defects, and (iii) are is suitable, sufficient and appropriate in all respects for their its current and contemplated uses. The Company has delivered to Purchaser true, correct All mechanical and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) other systems located at the Real Property Leasesare in good operating condition (ordinary wear and tear excepted). None of such improvements to any Real Property constitute a legal non-conforming use or otherwise require any special dispensation, together with all amendmentsvariance or Permit under any applicable Law. Except as set forth in Section 5.11(d) of the Disclosure Schedule, modifications or supplements, if any, thereto. The Company Properties are not no Real Property is subject to any leaseslease, rightssublease, optionslicense or right of occupancy in favor of any third party.
(e) The applicable Company has good, subleasesmarketable and exclusive fee simple title to, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person and the right to purchase, or the valid and enforceable power and unqualified right to use and sell, transfer, convey or occupy any such Company assign the Owned Real Property, except the Real Property Leasesfree and clear of all Liens other than Permitted Liens or such Liens as will be satisfied at or prior to Closing.
(bf) Each The applicable Company has a valid, binding and enforceable leasehold interest under each of the Real Property Leases Leases, free and clear of all Liens other than Permitted Liens. Each Lease is in full force and effecteffect and is the valid, binding and enforceable obligation of the applicable Company that is a party thereto in accordance with its terms. Neither the The applicable Company nor any Subsidiary has accepted full possession of each individual Leased Real Property and is (and, currently occupying and using same pursuant to the Knowledge terms of the Company, no applicable Lease. All “landlord work” and “tenant work” or other Person is) improvements or construction required or contemplated by each Lease has been completed in default under any Real Property Lease, accordance with the applicable Lease and no breach accepted by the Company (or, to the Knowledge applicable Company. None of the CompanyCompanies, nor any other Person) , is in breach or violation of, or default under, any Lease and no event has occurred under any Real Property Lease and no circumstance exists which, if not remedied, would result in such a breach, violation or default (whether with or without notice or the passage lapse of time time, or both). No party to any Lease has exercised any termination rights with respect thereto, and no such party has given notice (written or oral) result in such a defaultof any outstanding material dispute with respect to any Lease.
(cg) The applicable Company and the Subsidiaries have has all certificates of occupancy occupancy, Permits and material Permits of other similar consents or authorizations issued by or obtained from any Governmental Body Authority necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation Real Property in the Ordinary Course of the Improvements and the Company Business. The Real Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effectcompliance with all applicable Laws, and there is no pending or, except where the failure to the Knowledge of the Company, threatened proceeding which could result be in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both compliance would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would not reasonably be expected to have be material to the Companies taken as a Material Adverse Effectwhole.
(dh) Neither There do not exist any actual or threatened condemnation or eminent domain proceedings that affect any Real Property or any part thereof. None of the Company Companies nor their Affiliates have received any notice (written or oral) of the intention of any Governmental Authority or other Person to take or use any Real Property or any part thereof or interest therein.
(i) None of the Companies nor their Affiliates have received any written notice from any insurance company that has issued a policy with respect to any Real Property requiring performance of any structural or other repairs or alterations to such Real Property that have not been completed.
(j) All buildings, structures and other improvements constituting a part of the Real Property are supplied with utilities and other services necessary for the operation of such buildings, structures or other improvements in the Ordinary Course of Business.
(k) None of Sellers, the Companies, nor any Subsidiary owns, of their Affiliates owns or holds, or is obligated under or is a party to, any option, right of first refusal or other contractual (or other) right or obligation to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof of or interest thereinin the Real Property.
(el) Subject No work has been done on behalf of the Companies or their Affiliates at the Real Property, and no materials have been supplied to market limitations the Real Property on behalf of the Companies or their Affiliates that have not been paid for, and the other events there are no materialman’s liens or mechanic’s liens affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesReal Property.
(fm) Neither the Company nor The Companies and their Affiliates, and each parcel of Real Property, (i) are in material compliance with all declarations of covenants, conditions or restrictions, restrictive covenants and easement agreements, in each case affecting any of its Subsidiaries has Real Property, and (ii) have not received written any notice of any material special assessment relating to breach, violation or default under any Company Property such declarations, agreements or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Propertyeasements.
Appears in 1 contract
Sources: Securities Purchase Agreement (COMMERCIAL METALS Co)
Real Property. (a) Section 3.10(a)(i) of the Seller Disclosure Schedule 5.10(a) sets forth a complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and any of the Company’s Subsidiaries (individually, an “Owned Property” and collectively, the “Owned PropertiesReal Property”), (iiand Section 3.10(a)(ii) of the Seller Disclosure Schedule sets forth a list of all real property and interests in real property leased or subleased by or to the Company or any of the Company’s Subsidiaries and used in connection with the Company’s or any of the Company’s Subsidiaries’ respective businesses (individually, a the “Leased Real Property”). The Owned Real Property Lease” and collectively, the Leased Real Property are collectively referred to as the “Real Property Leases” andProperty”.
(b) Except as set forth in Section 3.10(b) of the Seller Disclosure Schedule, together with respect to each parcel of the Owned Properties, being referred to herein individually as a “Company Real Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have :
(i) The Company or one of the Company’s Subsidiaries has good and marketable fee simple title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms such parcel of the applicable lease) ofOwned Real Property, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except other than (A) those Liens set forth encumbrances for Taxes, assessments or governmental charges or levies on Schedule 5.10(a) and such parcel of the Owned Real Property not yet delinquent or the validity of which are being contested in good faith by appropriate proceedings; (B) Permitted Exceptions. The Company Properties constitute all interests leases, subleases and similar Contracts listed in real property Section 3.10(b)(i) of the Seller Disclosure Schedule; (C) zoning, building, land use or planning restrictions, conditions, covenants, permits, laws and regulations and other governmental or non-governmental restrictions or limitations which are not currently usedviolated or in default in any material respect; (D) easements, occupied rights of way, encroachments, restrictions, covenants, non-monetary Liens, encumbrances, reservations, and/or imperfections of title filed in the public records (to the Company’s Knowledge, no such matters adversely affect in any material respect the use or value of the Owned Real Property or would prevent the continued use or operation of the Owned Real Property in the manner currently held for use in connection with the business of operated and used by the Company and the Subsidiaries Company’s Subsidiaries); (E) all matters disclosed or reflected on the Surveys provided no such matter adversely affect the use or value of the Owned Real Property depicted thereon; (F) statutory Liens incurred in the Ordinary Course of Business in respect of pledges or deposits under workers’ compensation laws or similar legislation that are not delinquent; and which (G) statutory carrier’s, landlord’s, workmen’s, warehousemen’s, mechanic’s, laborer’s, materialmen’s or other similar Liens arising or incurred in the Ordinary Course of Business in respect of obligations secured by such Liens that are necessary for not delinquent (collectively, “Permitted Encumbrances”).
(ii) The Company has not granted any options or rights of first refusal to purchase, lease or use any parcel of the continued Owned Real Property or any portion thereof that remain outstanding.
(iii) To the Company’s Knowledge, the improvements on each parcel of the Owned Real Property are located within the boundary lines of such parcel of the Owned Real Property.
(iv) To the Company’s Knowledge, there are no encroachments upon any parcel of the Owned Real Property from adjacent properties nor encroachments of any improvement located on any parcel of the Owned Real Property upon adjoining land in each case that materially and adversely interfere with the present use of such parcel of the Owned Real Property in the operation of the Company’s or the applicable Subsidiary’s business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, .
(iv) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered furnished to Purchaser true, correct and complete copies of (i) all deedsany existing title insurance policies or market commitments for title insurance for each Owned Real Property in the Company’s possession or control (the “Title Materials”), title reports and surveys for the Owned Properties and (ii) any physical surveys for each Owned Real Property in the Company’s possession or control (the “Surveys”).
(c) Except as set forth in Section 3.10(c) of the Seller Disclosure Schedule, with respect to the Leased Real Property:
(i) Each of the Contracts pursuant to which the Company or one of the Company’s Subsidiaries leases or subleases a parcel of the Leased Real Property (the “Real Property Leases”) is a legal, together valid and binding obligation of the Company or one of the Company’s Subsidiaries and, to the Company’s Knowledge, the other party or parties thereto, enforceable against the Company and the Company’s Subsidiaries in accordance with all amendmentsits terms, modifications or supplementsexcept as such enforceability may be limited by bankruptcy, if anyinsolvency, thereto. The Company Properties are not subject to any leasesreorganization, rights, options, subleases, licenses, occupancy agreements, concessions moratorium or other agreements similar Applicable Laws affecting or arrangementsrelating to creditors’ rights generally and the availability of injunctive relief and other equitable remedies. To the Company’s Knowledge, written no event or oralcircumstance has occurred that, granting with notice or lapse of time or both, would constitute an event of default under any Real Property Lease by the Company or one of the Company’s Subsidiaries or, to the Company’s Knowledge, by any Person the right other party to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(bii) Each The Company has made available to Purchaser a true and complete copy of every Real Property Lease.
(iii) The Company or one of the Company’s Subsidiaries (as applicable) has maintained the Leased Real Property in accordance with the requirements imposed on it under the related Real Property Lease.
(iv) No security deposit or portion thereof deposited by or on behalf of the Company or one of the Company’s Subsidiaries with a lessor or sublessor under a Real Property Lease has been applied in respect of a breach or default by the Company or one of the Company’s Subsidiaries that has not been redeposited in full.
(v) Neither the Company nor one of the Company’s Subsidiaries is currently participating in any discussions or written negotiations regarding termination of any Real Property Lease prior to the scheduled expiration of such Real Property Lease (whether by reason of a breach or alleged breach by the tenant or subtenant thereunder or otherwise).
(vi) No improvements in the Leased Real Property made by or for the benefit of the Company or one of the Company’s Subsidiaries will be required to be removed at the end of the applicable terms of the Real Property Leases is Leases, except as expressly provided in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a defaultLeases.
(cd) Except as set forth in Section 3.10(d) of the Seller Disclosure Schedule, with respect to the Real Property:
(i) The Company and has not entered into any leases or subleases, licenses, occupancy or other agreements granting to any Person the Subsidiaries have all certificates right of use or occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation portion of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and parcels of the Real Property.
(ii) The Company Property or has not received written notice of any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge Company’s Knowledge, threatened condemnation or eminent domain proceedings (or negotiations regarding transfers in lieu thereof), or Actions relating to any parcel of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate Real Property or any portion thereof or interest thereinthat would materially and adversely affect the current use thereof.
(eiii) Subject With respect to market limitations improvements located on each parcel of the Real Property that constitute a part of the Owned Real Property or the Leased Real Property, such improvements are in operating condition, normal wear and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiestear excepted.
(fiv) Neither the Company nor any of its the Company’s Subsidiaries has received written notice of termination of any material special assessment relating to any utilities used in its business as the Company Property or any portion thereofapplicable Subsidiaries presently conducts its business.
(v) Except as may be set forth in Section 3.10(d)(v) of the Seller Disclosure Schedule, the Company has not received written notice that the use of any parcel of the Real Property fails to comply with, or is in violation of, applicable zoning ordinances.
(vi) At any time within the past four (4) months, no improvements have been made on any parcel of the Real Property with materials delivered to or labor performed on such parcel of the Real Property that have not been completely paid for or which might form the basis of a mechanic’s or similar lien against such parcel of the Real Property, and no such special assessment is pending or, to neither the Knowledge Company nor any of the Company, threatened. There are no pending or, to the Knowledge ’s Subsidiaries has received a copy of an affidavit of a mechanic’s or similar lien which may be filed against any parcel of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Real Property.
Appears in 1 contract
Real Property. (a) Schedule 5.10(a) sets forth a complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) all real property and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) i. Neither the Company nor any of its Subsidiaries has received written notice owns any real property.
ii. Section 4(l)(ii) of any material special assessment relating the Disclosure Schedule lists and describes briefly all real property leased or subleased to any of the Company Property and its Subsidiaries. The Seller has delivered or any portion thereofmade available to the Buyer correct and complete copies of the leases and subleases listed in Section 4(l)(ii) of the Disclosure Schedule (as amended to date). With respect to each lease and sublease listed in Section 4(l)(ii) of the Disclosure Schedule:
(1) the lease or sublease is legal, valid, binding, enforceable, and in full force and effect;
(2) the lease or sublease will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated hereby;
(3) no party to the lease or sublease is in breach or default, and no such special assessment is pending orevent has occurred which, with notice or lapse of time, would constitute a breach or default or permit termination, modification, or acceleration thereunder;
(4) no party to the Knowledge of the Company, threatened. There lease or sublease has repudiated any provision thereof;
(5) there are no pending ordisputes, oral agreements, or forbearance programs in effect as to the Knowledge of the Company, threatened condemnation lease or eminent domain proceedings sublease;
(6) with respect to each sublease, the representations and warranties set forth in subsections (1) through (5) above are true and correct with respect to the underlying lease;
(7) none of the Company or its Subsidiaries has assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any material portion interest in the leasehold or subleasehold;
(8) all facilities leased or subleased thereunder have received all approvals of governmental authorities (including licenses and permits) required in connection with the operation thereof and have been operated and maintained in accordance with applicable laws, rules, and regulations;
(9) all facilities leased or subleased thereunder are supplied with utilities and other services necessary for the operation of said facilities; and
(10) the owner of the facility leased or subleased has good and marketable title to the parcel of real property, free and clear of any Company PropertySecurity Interest, easement, covenant, or other restriction, except for installments of special easements not yet delinquent and recorded easements, covenants, and other restrictions which do not impair the current use, occupancy, or value, or the marketability of title, of the property subject thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Penn Treaty American Corp)
Real Property. (a) The GPC Disclosure Schedule 5.10(a) sets forth a complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries GPC (individually, an “"Owned Property” " and collectively, the “"Owned Properties”"). GPC has good and clear record and marketable fee title to the Owned Properties, free and clear of all mortgages, liens, security interests, easements, restrictive covenants, rights-of-way and other encumbrances ("Encumbrances") other than (i) liens that are disclosed on GPCs Disclosure Schedule; (ii) liens for taxes, fees, levies, duties or other governmental charges of any kind which are not yet delinquent; (iii) (A) platting, subdivision, zoning, building and other similar legal requirements, (B) easements, restrictive covenants, rights-of-way, encroachments and other similar encumbrances, which are of record, (C) reservations of coal, oil, gas, minerals and mineral interests, which are of record, (the Encumbrances described in clauses (i) through (iii) above are hereinafter referred to collectively as "Permitted Liens"). Without limiting the generality of the foregoing, as evidenced by the owner's title insurance policies identified in GPCs Disclosure Schedule, GPC holds fee simple title to each Owned Property subject only to the matters set forth in such title policies, which matters are set forth on GPCs Disclosure Schedule. GPC shall cause title to the Owned Properties to be updated from the effective dates of such title insurance policies to the Closing Date showing title to the Owned Properties complies with the requirements of this Section 2.16(a) and Section 7.7.
(b) Each of the Owned Properties and the structures and improvements thereon have been maintained, operated and used in accordance in all real property material respects with all laws, by-laws, ordinances, rules, restrictions, regulations, orders or codes of all governmental authorities, and interests all covenants, conditions and restrictions, public or private, which materially affect each of the Owned Properties or any part thereof or the business or activity conducted thereon ("laws and regulations"). All construction on, improvements to, and alterations of each of the Owned Properties complies with, and each and every part of the Owned Properties has been maintained and used in accordance with, all laws and regulations.
(c) The GPC Disclosure Schedule sets forth a complete list of all real property leased by the Company or the Subsidiaries GPC (individually, a “Real Property Lease” and "Leased Property" and, collectively, the “Real Property Leases” and, together with the Owned "Leased Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto"). The Company GPC has valid, good and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid marketable leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to in the terms of the applicable lease) of, all Company Properties subject to Real Property LeasesLeased Properties, in each case free and clear of all Liens of any nature whatsoeverEncumbrances, except for Permitted Liens and Encumbrances on the fee interest of the Leased Properties which do not constitute indebtedness of GPC. To the best of GPC's knowledge, none of the easements, restrictions or other matters of record to which such Leased Property is subject prevent or unreasonably or materially interfere with the use of such Leased Property for the conduct of the business thereon as heretofore conducted by GPC. GPCs Disclosure Schedule hereto identifies the parties to and dates of the lease for each material Leased Property and all addenda, amendments and attachments thereto (A) those Liens each, a "Real Property Lease"); except as set forth in GPCs Disclosure Schedule, such Real Property Lease has not been otherwise amended, modified or supplemented by any written or oral agreement or understanding. Except as set forth on Schedule 5.10(a) GPCs Disclosure Schedule, the Merger as contemplated by this Agreement is either permitted as of right under each Real Property Lease or otherwise does not require the consent of the landlord under such Real Property Lease; with respect to each material Real Property Lease for which the landlord's consent is required, GPC shall obtain such consent prior to the Closing. GPC has accepted possession of each Leased Property and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use occupies such leased premises in connection with the business conduct of the Company business. Each Real Property Lease affords GPC peaceful and the Subsidiaries and which are necessary for the continued operation undisturbed possession of the business of the Company and the Subsidiaries as the business is currently conductedleased premises thereunder. All of the Company Properties and buildings, fixtures and Improvements thereon areThe landlord under each Real Property Lease has performed, to the Knowledge satisfaction of GPC all of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any landlord's obligations under such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (orall fixtures, to the Knowledge equipment, improvements and other components of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result leased premises are in such a default.
(c) The Company good working order and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful condition so as to be adequate for the current use and operation conduct of GPC's business. GPC shall cause the landlord for each Company Property, and any agreement, easement or other right from any other Person, necessary Leased Property to permit the lawful use and operation deliver to GPC as of the Improvements and Closing Date an estoppel certificate that confirms the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge accuracy of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effectforegoing representations.
(d) Neither the Company nor any Subsidiary ownsTo GPC's knowledge, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There there are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect pending or threatened against any Owned Property or Leased Property (the Owned Properties and the Leased Properties are herein referred to any material portion of any Company collectively as the "Real Property").
Appears in 1 contract
Real Property. (a) Schedule 5.10(a2.2(b) sets and Schedule 3.13
(a) set forth a true and complete list as of (i) the date hereof of all of the real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by any of the Company Asset Selling Entities and the Subsidiaries Conveyed Companies, respectively, and Used primarily or held for use primarily in connection with the Business (individually, an “Owned Property” and collectively, the “"Owned Properties”Real Property"). Except as set forth on Schedule 3.13(a), the relevant Asset Selling Entity or Conveyed Company, as listed on Schedule 3.13(a), owns good and valid fee simple or equivalent title to each parcel of Owned Real Property free and clear of any Liens, other than Permitted Liens.
(iib) Schedule 2.2(a) and Schedule 3.13(b) together set forth a true and complete list as of the date hereof of all real property and leasehold interests (including any prepaid rent, security deposits or options to renew or purchase in connection therewith) in real property leased by of the Company Asset Selling Entities and the Conveyed Companies, respectively, Used primarily or held for use primarily in connection with the Subsidiaries Business (individually, a “the "Leased Real Property Lease” and collectivelyProperty," with the leases relating to such Leased Real Property, the “"Real Property Leases” "; and, together with the Owned PropertiesReal Property, being referred to herein individually as a “Company the "Real Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto"). The Company and Except as set forth on Schedule 3.13(b), the Subsidiaries have (i) good fee title to all Owned Property and (ii) relevant Asset Selling Entity or Conveyed Company, as listed on Schedule 3.13(b), holds a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case Leased Real Property, free and clear of all Liens any Liens, other than Permitted Liens.
(c) True and complete copies of any nature whatsoever, except (A) those Liens each of the Real Property Leases have previously been delivered by Sellers to Purchaser. The Real Property set forth on Schedule 5.10(a2.2(a), Schedule 2.2(b), Schedule 3.13(a) and (BSchedule 3.13(b) Permitted Exceptions. The Company Properties constitute all interests in of the real property currently usedowned, occupied Used primarily or currently held for use primarily in connection with the business Business, other than any assets disposed of since June 30, 2006 through the Company date hereof without being in breach of Section 3.7 and any assets disposed of after the Subsidiaries and which are necessary for date hereof as permitted by the continued operation terms of the business of the Company and the Subsidiaries this Agreement. Except as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon aredisclosed in Schedule 3.13(c), to the Knowledge of Sellers, all buildings, structures, and improvements located within the Company, Real Property (other than non-operating former manufacturing or distribution facilities) are (i) in good operating conditionstructurally sound, subject to ordinary wear and tear and (ii) are free from material structural defects, suitable and (iii) are suitable, sufficient and appropriate in all material respects for their current uses, ordinary wear and contemplated uses. The Company tear excepted; except in either such case as has delivered not had and would not reasonably be expected to Purchaser truehave, correct and complete copies of (i) all deedsindividually or in the aggregate, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leasesa Material Adverse Effect.
(bd) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (andExcept as set forth on Schedule 3.13(d), to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the CompanySellers, threatened material action or proceeding which could result in the material and adverse modification by any Governmental Authority for assessment or cancellation thereof. No default collection of Taxes, impact fees or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance special assessments affecting any part of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereofReal Property, and no such special assessment condemnation or eminent domain proceeding against any part of any Real Property is pending or, to the Knowledge of the CompanySellers, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (TTM Technologies Inc)
Real Property. (a) Schedule 5.10(aSection 3.11(a) of the Seller Disclosure Schedules sets forth a list, as of the date of this Agreement, that is complete list and accurate in all material respects, of (i) all the real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and Purchased Entities (or their Subsidiaries or the Subsidiaries Joint Ventures) (individually, an “Owned Property” and collectively, the “Owned PropertiesReal Property”). Except as set forth in Section 3.11(a) of the Seller Disclosure Schedules, the Purchased Entities (iior their applicable Subsidiaries or the Joint Ventures) have fee simple or comparable valid title to the Owned Real Property, as per the relevant record of title, free and clear of any Liens, other than Permitted Liens. Except as set forth in Section 3.11(a) of the Seller Disclosure Schedules, none of the Owned Real Property is subject to any first refusal, purchase option, right to purchase or other similar right.
(b) Section 3.11(b) of the Seller Disclosure Schedules sets forth a list, as of the date of this Agreement, that is complete and accurate in all real property material respects, of all leases, subleases, tenancy, licenses, easements, caveats, options, claims, covenants, cutting rights, forestry rights, forestry licenses and other subordinate interests in granted to the Purchased Entities (or their Subsidiaries or the Joint Ventures) and the real property leased by the Company Purchased Entities (or their Subsidiaries or the Subsidiaries Joint Ventures) (individually, a “Real Property Lease” and collectively, the “Leased Real Property LeasesProperty” and, together with the Owned Properties, being referred to herein individually as a “Company Real Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee title to all Owned Property and (ii) a valid leasehold interest in, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear case, inclusive of all Liens of any nature whatsoeverimprovements and planted timber located thereon, except (A) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptionsthe “Real Property”). The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, (ii) are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser trueTrue, correct and complete copies of the leases, licenses, rights or other instruments governing the Leased Real Property have been delivered to Purchaser. Each Purchased Entity (ior Subsidiary thereof or Joint Venture) all deedshas good legal and beneficial title to the forestry right to which it is identified as the grantee, title reports and surveys each forestry right is the absolute property of the Purchased Entity (or Subsidiary thereof or Joint Venture) identified as the grantee of the relevant forestry right.
(c) The Real Property is the only land and building owned, used or occupied by the Purchased Entities (or their Subsidiaries or the Joint Ventures) as of the date of this Agreement.
(d) Except as set forth in Section 3.11(d) of the Seller Disclosure Schedules and except for Permitted Liens, the Purchased Entities (or their Subsidiaries or the Joint Ventures) have exclusive occupation and right of quiet enjoyment of each Owned Real Property and the benefit of the rights granted for each Leased Real Property and, as of the date of this Agreement, the land interests in the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any leaseslease, rightssublease, optionstenancy, subleaseslicense entitling possession, licenseseasements, occupancy agreementscaveat, concessions option claim, covenant, forestry right, cutting right or other agreements right of occupation or arrangementsaccess in favor of any other Person (other than access rights or licenses granted for telecommunications, written apiary, hunting, walking, mountain biking or oralsimilar access licenses which do not materially affect the operations of the business of the Purchased Entities, granting their Subsidiaries and the Joint Ventures) or any option requiring a Purchased Entity (or any Subsidiary or Joint Venture) to grant any such entitlement to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leasesthird party.
(be) Each of Except as would not, individually or in the aggregate, be material to the Purchased Entities, their Subsidiaries and the Joint Ventures, taken as a whole, each lease, license, right or other instrument governing Leased Real Property Leases is in full force valid and effect. Neither binding on the Company nor any Purchased Entity, Subsidiary thereof or Joint Venture that is (a party thereto and, to the Knowledge of the CompanySeller, no each other Person is) in default under any Real Property Lease, party thereto and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, except as enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar Laws affecting creditors’ rights generally or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law). Except as would not, individually or in the aggregate, be material to the Purchased Entities, their Subsidiaries and the Joint Ventures, taken as a whole, (i) no Purchased Entity, Subsidiary thereof or Joint Venture is in breach of any forestry right, cutting right, lease, tenancy, license or any other agreement under which it holds any land interests and (ii) to the Knowledge of Seller, there is are not any circumstances which would entitle any grantor, landlord, licensor or other Person to terminate any such forestry right, cutting right, lease, tenancy, license or other agreement or would otherwise restrict in any respect or terminate the continued possession or occupation by such Purchased Entity, Subsidiary thereof or Joint Venture of the Leased Real Property.
(f) The Real Property, and the use by the Purchased Entities or their Subsidiaries or the Joint Ventures of the Real Property complies in all material respects with all applicable Laws and any operative regional or district plan and with all applicable resource consents, building consents and other applicable statutory or local body regulations and requirements.
(g) Except as would not reasonably be expected to, individually or in the aggregate, be material to the Purchased Entities, their Subsidiaries and the Joint Ventures, taken as a whole, all improvements located on the Real Property have received all necessary Approvals of Governmental Entities (including licenses and permits) required in connection with the use thereof by the Purchased Entities or their Subsidiaries or the Joint Ventures in the Ordinary Course of Business. There are no judicial or administrative Proceedings pending or, to the Knowledge of the CompanySeller, threatened proceeding which could result in writing under any condemnation, environmental, zoning, eminent domain, land-use or other Law applicable to the Real Property which, if adversely decided, would materially interfere with the use by the Purchased Entities, their Subsidiaries or the Joint Ventures of the Real Property in the Ordinary Course of Business. There are no outstanding unpaid assessment notices against any of the Real Property.
(h) Except as would not, individually or in the aggregate, be material to the Purchased Entities, their Subsidiaries and adverse modification the Joint Ventures, taken as a whole, as of the date of this Agreement, (i) there are no subsisting disputes in relation to any of Leased Real Property and there have been no material previous disputes in relation to any of the Leased Real Property in the last three (3) years; (ii) all rent, fees and any other monies or cancellation thereof. No default outgoings payable by any Purchased Entity or violationits Subsidiaries or Joint Ventures under each Leased Real Property has been paid without a material deduction or set-off on or before the relevant due date for payment; and (iii) to the Knowledge of Seller, no Purchased Entity or Subsidiary thereof or Joint Venture is in breach of its obligations under the Leased Real Property.
(i) The Real Property has legal access to the public roading network by way of the relevant record of title having frontage to a legal road, being contiguous with a record of title owned by the Purchased Entities or their Subsidiaries or the Joint Ventures which has frontage to a legal road, or event that with the lapse having appurtenant to it registered rights by way of time a roadway or giving registered right of notice or both would become a default or violation, has occurred way. Information provided in the due observance Seller Disclosure Schedules or in writing to the Purchaser in respect of practical access arrangements to the Real Property is true and accurate in all material respects.
(j) Except as set forth in Section 3.11(j) of the Seller Disclosure Schedules, the Purchased Entities (or their Subsidiaries or the Joint Ventures) have not, in the [* * * * *] years prior to the date of this Agreement, received any notice under the Public Works Act 1981 from a Governmental Entity in respect of any Permit. No Improvement, of the Real Property which notice (x) relates to the proposed acquisition of an interest in land exceeding [* * * * *] hectares in total or (y) has not yet been resolved.
(k) The Purchased Entities (or their Subsidiaries or the operation Joint Ventures) have not received any written notice from any owners or maintenance thereof, violates occupiers of any restrictive covenant, or encroaches on any property owned or leased by any other Person, land contiguous to the Real Property under the Fencing Act 1978 which has had or would reasonably be expected to have require any Purchased Entity to erect or repair a Material Adverse Effectfence between the Real Property and any contiguous land and which has not been resolved.
(dl) Neither the Company nor Seller has not received any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose written notices of any real estate or active claims nor has any portion thereof or interest thereinKnowledge of any active claims made under the Treaty of Waitangi Act 1975 in respect of the Real Property.
(em) Subject Except as would not reasonably be expected to, individually or in the aggregate, be material to market limitations the Purchased Entities, the Subsidiaries and the other events affecting the geographical area in which any Company Property is locatedJoint Ventures, taken as a whole, the Company standing trees are planted within the title boundaries of the Real Property with a view to there being no instances of give and takes over boundary planting. Except as would not reasonably be expected to, individually or in the aggregate, be material to the Purchased Entities, the Subsidiaries and the Joint Ventures, taken as a whole, there are no encroachments of buildings, structures or any other item onto the Real Property and there are no buildings, structures or other items on the Improvements are sufficiently supplied in all Real Property that encroach onto any neighboring or adjoining land. The Purchased Entities, the Subsidiaries and the Joint Ventures have not received any notice of material respects encroachment which has not been resolved with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilitiesapplicable counterparty.
(fn) Neither Except as disclosed in Section 3.11(n) of the Company nor any of its Subsidiaries has received Seller Disclosure Schedules, no written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of Seller, oral termination notice or return notice has been served under any of the Company, threatened. There are no pending or, to Leased Real Property by any Purchased Entity or the proprietor thereof.
(o) To the Knowledge of Seller, there has been no Casualty Loss on any of the CompanyReal Property in the [* * * * *] period prior to the date of this Agreement. As of the date of this Agreement, threatened condemnation or eminent domain proceedings with respect to there is no Casualty Loss on any material portion of any Company the Real Property.
Appears in 1 contract
Real Property. 3.12.1 Set forth on Schedule 3.12.1 is a correct and complete list of all Owned Real Property or real property used in the Business and owned by an Affiliate of Seller (with such Affiliate listed on Schedule 3.12.1).
3.12.2 Set forth on Schedule 3.12.2 is a correct and complete list of all Leased Real Property and includes for each such Leased Real Property, (a) Schedule 5.10(athe street address thereof, (b) sets forth a if such Leased Real Property is leased, licensed or subleased to or by Seller, (c) the landlord or tenant (if not Seller) under such Leased Real Property, (d) the rental amount currently being paid under such Leased Real Property, (e) the expiration of the term of such Leased Real Property, and (f) the current use of such Leased Real Property. Seller has made available to Buyer correct and complete list copies of each of the leases and subleases for the Leased Real Property (iincluding all amendments related thereto) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned PropertiesRealty Leases”).
3.12.3 (a) Upon the Closing, (ii) all real property Seller will convey good and interests in real property leased by the Company or the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a description of each such Real Property Lease (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company and the Subsidiaries have (i) good fee marketable title to all Owned Property and (ii) a valid leasehold interest inReal Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverLiens, except Permitted Liens, (Ab) those Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently usedthe Owned Real Property, occupied or currently held for use in connection with the business of the Company including any improvements located thereon, and the Subsidiaries use and which operation thereof, are in compliance with all applicable municipal and other governmental laws, ordinances, rules, regulations, codes (including zoning codes), licenses, permits or other authorizations necessary for the continued use, occupancy and operation of the business of the Company Owned Real Property as it is presently being operated, and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the CompanySeller has not received any written notice advising or alleging otherwise, (ic) in good operating conditionno Person has an option to purchase or lease the Owned Real Property, (iid) to Seller’s Knowledge, all improvements on the Owned Real Property are free from material structural defectsin compliance with all applicable Laws and suitable appropriate for their current use, and (iiie) are suitableSeller is the lessee of all the Leased Real Property, sufficient and appropriate is in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies possession of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Leased Real Property leased under the Realty Leases, together with all amendmentseach such Realty Lease is valid, modifications or supplements, if any, thereto. The Company Properties are not subject to any leases, rights, options, subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to use or occupy any such Company Property, except the Real Property Leases.
(b) Each of the Real Property Leases is binding and in full force and effect. Neither the Company nor any Subsidiary is (andeffect without default thereunder by Seller or, to the Knowledge of Seller’s Knowledge, the Company, no other Person is) in default under any Real Property Leaselessor, and no breach by event or condition exists which after notice or lapse of time or both would constitute a default on the Company (part of Seller or, to the Knowledge of the CompanySeller, any other Person) has occurred counterparty thereto, under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatenedRealty Lease. There are no pending or, to the Knowledge of the CompanySeller, threatened condemnation proceedings against the Seller Real Property. No Person other than Seller has any right to use or eminent domain proceedings occupy any portion of the Owned Real Property or any right to use or occupy any portion of the Leased Real Property pursuant to any rights or agreements granted by Seller.
3.12.4 The Seller Real Property comprises all of the real property used, operated on, leased or subleased by Seller, to Seller’s Knowledge, is suitable and appropriate for the purpose for which it is currently used in connection with Business, and with respect to any the Leased Real Property has been maintained, in all material portion respects, in accordance with the terms of any Company Propertythe Realty Leases.
Appears in 1 contract
Sources: Asset Purchase Agreement (Commercial Vehicle Group, Inc.)
Real Property. (a) Schedule 5.10(a4.9(i) sets forth a complete list of the Disclosure Schedules lists and describes in reasonable detail the Owned Real Property. With respect to each such parcel of Owned Real Property, except as disclosed on Schedule 4.9(i) of the Disclosure Schedules:
(i) all real property the party identified on Schedule 4.9(i) of the Disclosure Schedules has good and interests in real propertyvalid title to such parcel, including improvements thereon free and easements appurtenant thereto owned in fee by the Company and the Subsidiaries clear of any Lien (individually, an “Owned Property” and collectively, the “Owned Properties”other than Permitted Liens), ;
(ii) all real neither the Seller nor Stromsholmen AB has received written notice of any condemnation proceedings, lawsuits or administrative actions relating to such property;
(iii) neither the Seller nor Stromsholmen AB has received written notice that the use or occupancy of such property and interests in real violates any covenants, conditions or restrictions that encumber such property leased by or that any such property is subject to any restriction for which any Permits necessary to the Company current use thereof have not been obtained; and
(iv) there are no leases, subleases, licenses, concessions or other agreements granting to any Person the Subsidiaries (individually, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee right of use or lessor, including a description occupancy of each such Real Property Lease (including the name any portion of the third party lessor or lessee and the date Real Property.
(b) Schedule 4.9(ii) of the lease or sublease and all amendments thereto)Disclosure Schedules describes in reasonable detail the Leased Real Property. The Company and With respect to the Subsidiaries have Leased Real Property, except as set forth on Schedule 4.9(ii) of the Disclosure Schedules:
(i) good fee title to all Owned Property and (iithe party identified on Schedule 4.9(ii) has a valid leasehold interest inin the Leased Real Property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoever, except (A) those Liens set forth on Schedule 5.10(a) and (B) other than Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (i) in good operating condition, Liens);
(ii) are free from material structural defectsnone of the Seller and Stromsholmen AB has received written notice of any condemnation proceedings, and lawsuits or administrative actions relating to the Leased Property;
(iii) are suitablenone of the Seller and Stromsholmen AB has received written notice that the use or occupancy of the Leased Property violates any covenants, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser trueconditions or restrictions that encumber such property, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not that any such property is subject to any leases, rights, options, restriction for which any Permits necessary to the current use thereof have not been obtained; and
(iv) there are no subleases, licenses, occupancy agreements, concessions or other agreements or arrangements, written or oral, granting to any Person the right to purchase, or the right to of use or occupy occupancy of any such Company Property, except the Real Property Leases.
(b) Each portion of the Leased Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(e) Subject to market limitations and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.
(f) Neither the Company nor any of its Subsidiaries has received written notice of any material special assessment relating to any Company Property or any portion thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Real Property. (aSCHEDULE 2.01(d) Schedule 5.10(a) sets forth a complete list of (i) all real property and interests in real property, including improvements thereon and easements appurtenant thereto owned in fee by the Company and the Subsidiaries (individually, an “Owned Property” and collectively, the “Owned Properties”), (ii) lists all real property and interests in real property owned or leased by the Company Seller and used primarily in the Seller Business, and specifying the address or other description suitable to identify the Subsidiaries (individuallyproperty, a “Real Property Lease” and collectively, the “Real Property Leases” and, together with the Owned Properties, being referred to herein individually as a “Company Property” and collectively as the “Company Properties”) as lessee or lessor, including a reasonable description of the use of each such Real Property Lease (including the name property, and which of the third party lessor or lessee properties are owned and which are leased.
(a) With respect to each parcel of Seller-owned real property included in the date of the lease or sublease Purchased Assets, and all amendments thereto). The Company and the Subsidiaries have except for matters set forth on SCHEDULE 7.04(a):
(i) Seller has good fee and marketable title to all Owned Property and (ii) a valid leasehold interest inthe parcel of real property, and enjoys peaceful and undisturbed possession (consistent with historical use and pursuant to the terms of the applicable lease) of, all Company Properties subject to Real Property Leases, in each case free and clear of all Liens of any nature whatsoeverLiens, except (A) those for Permitted Liens set forth on Schedule 5.10(a) and (B) Permitted Exceptions. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Company and the Subsidiaries and which are necessary except for the continued operation of the business of the Company and the Subsidiaries as the business is currently conducted. All of the Company Properties and buildings, fixtures and Improvements thereon are, to the Knowledge of the Company, (iLiens listed on SCHEDULE 7.03(a) in good operating condition, which will be discharged at Closing;
(ii) there are free from material structural defects, and (iii) are suitable, sufficient and appropriate in all respects for their current and contemplated uses. The Company has delivered to Purchaser true, correct and complete copies of (i) all deeds, title reports and surveys for the Owned Properties and (ii) the Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Properties are not subject to any no leases, rights, options, subleases, licenses, occupancy agreementsconcessions, or other agreements to which Seller is a party or, to Seller's knowledge, subleases, licenses, concessions or other agreements or arrangements, written or oralto which Seller is not a party, granting to any Person party or parties the right to purchase, or the right to of use or occupy occupancy of any such Company Property, except portion of the Real Property Leases.parcel of real property; and
(biii) Each of the Real Property Leases is in full force and effect. Neither the Company nor any Subsidiary is (and, to the Knowledge of the Company, there are no other Person is) in default under any Real Property Lease, and no breach by the Company (or, to the Knowledge of the Company, any other Person) has occurred under any Real Property Lease which, if not remedied, would (whether with outstanding options or without notice or the passage of time or both) result in such a default.
(c) The Company and the Subsidiaries have all certificates of occupancy and material Permits of any Governmental Body necessary or useful for the current use and operation of each Company Property, and any agreement, easement or other right from any other Person, necessary to permit the lawful use and operation of the Improvements and the Company Property or any driveways, roads and other means of egress and ingress to and from any Company Property and each such Permit, agreement, easement or other right is in full force and effect, and there is no pending or, to the Knowledge of the Company, threatened proceeding which could result in the material and adverse modification or cancellation thereof. No default or violation, or event that with the lapse of time or giving of notice or both would become a default or violation, has occurred in the due observance of any Permit. No Improvement, or the operation or maintenance thereof, violates any restrictive covenant, or encroaches on any property owned or leased by any other Person, which has had or would reasonably be expected to have a Material Adverse Effect.
(d) Neither the Company nor any Subsidiary owns, holds, is obligated under or is a party to, any option, right rights of first refusal or other contractual right to purchasepurchase the parcel of real property, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(eb) Subject With respect to market limitations each parcel of real property listed on SCHEDULE 2.01(d), and the other events affecting the geographical area in which any Company Property is located, the Company Property and the Improvements are sufficiently supplied in all material respects with utilities and other services as reasonably necessary except for the operation of such Company Property and Improvements as currently operated including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities.matters set forth on SCHEDULE 7.04(b):
(fi) Neither the Company nor To Seller's knowledge, Seller has valid and enforceable rights of physical and legal ingress and egress to and from such parcel; and
(ii) Seller has not received any of its Subsidiaries notice of, and Seller has received written notice of no knowledge of, any material special assessment relating to any Company Property non-compliance with applicable building codes, zoning regulations, occupational health and safety Laws or any portion other Laws applicable to such parcel or Seller's use or occupancy thereof, and no such special assessment is pending or, to the Knowledge of the Company, threatened. There are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings with respect to any material portion of any Company Property.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dobson Communications Corp)