Common use of The Real Property Clause in Contracts

The Real Property. No person or entity other than the Canton LLCs has any option or right of first refusal to purchase, lease or rent the real property owned by SURGICOE Real Estate (the “Real Property”). Except for the lease of the Real Property by SURGICOE Real Estate to ASC, no person or entity has exercised any option or right of first refusal to purchase, lease or rent the Real Property since July 28, 2000, and no person or entity is currently claiming to hold any option or right of first refusal to purchase, lease or rent the Real Property. In addition, the Management Shareholders make the following representations and warranties regarding the Real Property: (a) The improvements located on the Real Property have been approved by all government authorities having jurisdiction and are in compliance with all applicable governmental rules, ordinances, regulations and laws and all restrictions applicable to the Real Property. Certificates of occupancy and all licenses, permits, authorizations and approvals required by all governmental authorities having jurisdiction have been issued for such improvements. (b) All utilities required for the operation of the businesses conducted at the Real Property are installed and operating and all installation and connection charges have been paid in full. (c) To Seller’s knowledge, no zoning, building, flood control, fire, safety, toxic materials, hazardous waste or other law, ordinance, code, order, regulation or restriction is violated in any material respect by the continuing maintenance, operation or use of any of the Real Property. (d) There are no material structural defects in any of the improvements located on the Real Property. The heating, electrical, plumbing and drainage systems at or servicing the Real Property and all facilities and equipment relating thereto are in good working condition and repair. (e) To Seller’s knowledge, there are adequate means of ingress and egress for vehicular and pedestrian traffic between each parcel of the Real Property and one or more adjoining streets, roads or highways. There are adequate parking facilities to serve the current level of business conducted at the Center, without the necessity of building or leasing any additional facilities or space, and the number of parking spaces that is available for such Real Property complies with all applicable ordinances, statutes and regulations. (f) No Hazardous Materials, toxic substances or related materials have been generated, released, discharged, stored, handled or disposed of on, under, in, above or about the Real Property by Seller or any Canton LLC except in compliance in all material respects with all federal, state and local health, safety, building, fire control, environmental, toxic materials and hazardous waste laws, ordinances, orders, regulations and restrictive covenants. The term “Hazardous Materials” shall mean any substance, material or waste which is or becomes regulated by any state or local governmental authority or the United States Government, including but not limited to any material or substance which is (i) petroleum product, constituent or byproduct, (ii) asbestos, (iii) polychlorinated byphenyls or polybrominated diphenylether, (iv) designated as a “hazardous substance” pursuant to Section 311 of the Clean W▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇ et seq. (33 U.S.C. §1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. §1317), (v) defined as a “hazardous waste” or “medical waste” pursuant to Section 1004 of the Resource Conservation and R▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇ et seq. (42 U.S.C. §6903), or (vi) defined as a “hazardous substance” or “medical waste” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq. (42 U.S.C. §9601).

The Real Property. No person or entity other than the Canton LLCs SURGICOE and its Subsidiaries has any option or right of first refusal to purchase, lease or rent the any real property owned or leased by SURGICOE Real Estate or any of its Subsidiaries (the “Real Property”). Except for the lease of the Real Property by SURGICOE Real Estate to ASC, no person or entity has exercised any option or right of first refusal to purchase, lease or rent the Real Property since July 28, 2000, and no person or entity is currently claiming to hold any option or right of first refusal to purchase, lease or rent the Real Property. In addition, the Management Shareholders make the following representations and warranties regarding the Real Property: (a) The improvements located on the Real Property have been approved by all government authorities having jurisdiction and are in compliance with all applicable governmental rules, ordinances, regulations and laws and all restrictions applicable to the Real Propertyjurisdiction. Certificates of occupancy and all licenses, permits, authorizations and approvals required by all governmental authorities having jurisdiction have been issued for such improvements. (b) All utilities required for the operation of the businesses conducted at the Real Property are installed and operating and all installation and connection charges have been paid in full. (c) To SellerSURGICOE’s knowledge, no zoning, building, flood control, fire, safety, toxic materials, hazardous waste or other law, ordinance, code, order, regulation or restriction is violated in any material respect by the continuing maintenance, operation or use of any of the Real Property. (d) There are no material structural defects in any of the improvements located on the Real Property. The heating, electrical, plumbing and drainage systems at or servicing the Real Property and all facilities and equipment relating thereto are in good working condition and repair. (e) To SellerSURGICOE’s knowledge, there are adequate means of ingress and egress for vehicular and pedestrian traffic between each parcel of the Real Property and one or more adjoining streets, roads or highways. There are adequate parking facilities to serve the current level of business conducted at each parcel of the CenterReal Property, without the necessity of building or leasing any additional facilities or space, and the number of parking spaces that is available for such Real Property complies with all applicable ordinances, statutes and regulations. (f) No Hazardous Materials, toxic substances or related materials have been generated, released, discharged, stored, handled or disposed of on, under, in, above or about the Real Property by Seller SURGICOE or any Canton LLC of its Subsidiaries except in compliance in all material respects with all federal, state and local health, safety, building, fire control, environmental, toxic materials and hazardous waste laws, ordinances, orders, regulations and restrictive covenants. The term “Hazardous Materials” shall mean any substance, material or waste which is or becomes regulated by any state or local governmental authority or the United States Government, including but not limited to any material or substance which is (i) petroleum product, constituent or byproduct, byproduct (ii) asbestos, (iii) polychlorinated byphenyls or polybrominated diphenyletherether, (iv) designated as a “hazardous substance” pursuant to Section 311 of the Clean W▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇ et seq. (33 U.S.C. §1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. §1317), (v) defined as a “hazardous waste” or “medical waste” pursuant to Section 1004 of the Resource Conservation and R▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇ et seq. (42 U.S.C. §6903), or (vi) defined as a “hazardous substance” or “medical waste” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq. (42 U.S.C. §9601).

The Real Property. (i) No person Seller or entity any Affiliate of any Seller (A) owns any real property in the Transferred Markets or (B) leases, subleases, licenses or otherwise occupies any real property in the Transferred Markets other than the Canton LLCs has any option or right of first refusal to purchaseleases described on Schedule 4.1(w)(i) hereto (each an “Existing Real Property Lease” and collectively, lease or rent the “Existing Real Property Leases”). (ii) The real property owned by SURGICOE properties demised under the Existing Real Estate Property Leases (collectively, the “Real Property”). Except ) are adequately served with all necessary utilities for the lease of the proper operation thereof, including sewer, water, gas, electricity, sanitary sewer, storm sewer and telephone. The Real Property is not situated within any area that has been identified by SURGICOE Real Estate to ASC, no person the United States Secretary of Housing and Urban Development as a “special flood hazard area” or entity has exercised any option or right of first refusal to purchase, lease or rent the Real Property since July 28, 2000, and no person or entity is currently claiming to hold any option or right of first refusal to purchase, lease or rent the Real Property. In addition, the Management Shareholders make the following representations and warranties regarding the Real Property:a “special mudslide hazard area.” (aiii) The All buildings, structures, facilities, fixtures and other improvements located on the real property demised under the Existing Real Property Leases are accessible via public roads or easements benefiting such Real Property. The Real Property is the only real property necessary in connection with the Business, other than in connection with any services provided in the Transferred Markets pursuant to any management services agreement with the Company or any of its Affiliates. No notices or requests have been approved received by all government authorities having jurisdiction and are in compliance any Seller from any Governmental Entity or any utility with all applicable governmental rules, ordinances, regulations and laws and all restrictions applicable respect to the Real Property. Certificates of occupancy and all licensesProperty with which any such Seller has failed or refused to comply, permitsin each case, authorizations and approvals required by all governmental authorities having jurisdiction have been issued for such improvementsother than as would not be material to the Business. (b) All utilities required for the operation of the businesses conducted at the Real Property are installed and operating and all installation and connection charges have been paid in full. (c) To Seller’s knowledge, no zoning, building, flood control, fire, safety, toxic materials, hazardous waste or other law, ordinance, code, order, regulation or restriction is violated in any material respect by the continuing maintenance, operation or use of any of the Real Property. (div) There are no material structural defects in service, supply, maintenance, leasing, or management agreements to which any of the improvements located on Seller is a party affecting the Real Property. The heatingProperty or the operation of any part thereof that will not be terminated on or prior to Closing. (v) To the Sellers’ Knowledge, electrical, plumbing and drainage systems at or servicing the Real Property and all facilities and equipment relating thereto the Business are in good working condition and repair. (e) To Seller’s knowledge, there are adequate means of ingress and egress for vehicular and pedestrian traffic between each parcel of the Real Property and one or more adjoining streets, roads or highways. There are adequate parking facilities to serve the current level of business conducted at the Center, without the necessity of building or leasing any additional facilities or space, and the number of parking spaces that is available for such Real Property complies with all applicable ordinances, statutes and regulations. (f) No Hazardous Materials, toxic substances or related materials have been generated, released, discharged, stored, handled or disposed of on, under, in, above or about the Real Property by Seller or any Canton LLC except in compliance in all material respects with all federal, state and local health, safety, building, fire control, environmental, toxic materials and hazardous waste laws, ordinances, orders, regulations and restrictive covenants. The term “Hazardous Materials” shall mean any substance, material or waste which is or becomes regulated by any state or local governmental authority or the United States Government, applicable zoning ordinances (including but not limited to any material or substance which is (i) petroleum product, constituent or byproduct, (ii) asbestos, (iii) polychlorinated byphenyls or polybrominated diphenylether, (iv) designated as a “hazardous substance” pursuant to Section 311 of the Clean W▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇ et seq. (33 U.S.C. §1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. §1317parking requirements), (v) defined as a “hazardous waste” or “medical waste” pursuant to Section 1004 of the Resource Conservation all ADA and R▇▇▇▇▇▇▇ ▇▇▇OSHA regulations, ▇▇ ▇and all other applicable Laws and regulations.▇.▇. §▇▇▇▇ et seq. (42 U.S.C. §6903), or (vi) defined as a “hazardous substance” or “medical waste” pursuant to Section 101 The Sellers are in actual possession and occupation of the Comprehensive Environmental ResponseReal Property, Compensationno Seller has assigned, transferred or conveyed any interest in the Existing Real Property Leases, and Liability Actno Seller leases, 42 U.S.C. §9601 et seqsubleases, licenses or shares occupation of the Real Property with any third party, except as set forth on Schedule 4.1(w)(vi) hereto. There are no agreements granting to any Person other than the Sellers the right to use or occupy the Real Property. (42 U.S.C. §9601vii) The Company has made available to Buyer true, complete and accurate copies of the Existing Real Property Leases (together with all amendments, modifications, annexes, exhibits and schedules thereto). (viii) Each Seller is current with and has paid in full all fixed rent, security deposits, additional rent, operating expenses, real estate Taxes, and other applicable rents and amounts due and owing under the Existing Real Property Leases when due and owing and is not otherwise in default under the Existing Real Property Leases to which it is a party or by which it is bound, and no other party to the Existing Real Property Leases is in default thereunder. (ix) There are no brokerage or leasing commissions due or payable to any Person with respect to or on account of the Existing Real Property Leases. (x) Each Seller’s interest in and to the Real Property is free and clear of all Encumbrances (other than Permitted Encumbrances), and no Seller has mortgaged, assigned, pledged or encumbered the Existing Real Property Leases. The machinery, equipment, furniture, fixtures, and other tangible personal property located at the Real Property are in all material respects in good operating condition and repair, ordinary wear and tear excepted or are otherwise in such repair and condition as to allow Sellers to operate the Business in the ordinary course of business consistent with past practice, and are adequate for the uses to which they are being put. (xi) No notices of termination or cancellation of the Existing Real Property Leases have been given or received by any Seller, and no notices of breach of the Existing Real Property Leases have been given or received by any Seller that remains uncured. (xii) The Existing Real Property Leases are in full force and effect and are legal, binding and enforceable obligations of the applicable Seller, and each of the other parties thereto. (xiii) Each Seller’s use and occupation of the Real Property is and has been in compliance in all material respects with all applicable Laws, and no current use of the Real Property is dependent on a nonconforming use or other governmental approval or concession. There are no current, pending, or threatened in writing actions, suits, claims or adverse proceedings of any kind with respect to the Existing Real Property Leases. Each Seller owns, holds, or possesses all permits necessary for the ownership, lease, operation, and use of the Real Property, as applicable, except as would not reasonably be expected to be material to the Business. (xiv) No Seller is the subject of any pending or threatened in writing condemnation, planned public improvements, annexation, special assessments, zoning or subdivision changes or other proceedings relating to the Real Property or other matters adversely affecting the use or occupancy of the Real Property, except as would not reasonably be expected to be material to the Business. (xv) No Seller is a party to, obligated under or bound by any sublease, option, right of first refusal or other contractual right granting (or, if exercised, would grant) to any other Person the right of use or occupancy of the Real Property, and there is no Person (other than an applicable Affiliate) in possession of the Real Property. None of the Sellers nor any of their respective Affiliates is a party to any agreement or option to lease or purchase any real property in the Transferred Market except as set forth in the Existing Real Property Leases.