Title to and Use of Property. (i) At the Closing, subject to the entry of the 363 Order, the Purchaser will acquire good and marketable title to all of the Assets, in each case free and clear of all Encumbrances (including any claims that may arise by reason of the execution, delivery or performance by the Seller of this Agreement) other than Permitted Encumbrances. Except as disclosed on SCHEDULE 4.13(a)(i), all of the Assets are and, at the Closing, will be located at the facilities described in Sections 4.13(a)(ii) and at the Seller's property in Gladwin, Michigan. (ii) All real estate constituting any part of the Assets that is used or held by the Seller pursuant to any lease or other contractual arrangement is designated in SCHEDULE 4.13 (the "LEASED REAL PROPERTY"), which Schedule 4.13 also sets forth the date of, and parties to, each real property lease, the date of, and parties to, each amendment, modification and supplement thereto, the term and renewal terms (whether or not exercised) thereof and a brief description of the Leased Real Property covered thereby. Except as set forth on SCHEDULE 4.13, there is no underlying mortgage, deed of trust, lease, grant of term or other estate in or interest affecting any Leased Real Property which is superior to the interest of the Seller, whichever is applicable, as tenant under the applicable real property lease. The Seller has no ownership, financial or other interest in the landlord under any real property lease. (iii) As to all Assets of the type described in Section 4.13(a)(iii), either (A) the Seller is not in default or delinquent in any material respect in performing its obligations under the applicable Assumed Contract or Assumed Lease, as the case may be, except as disclosed on SCHEDULE 4.13(a)(iv), or (b) any such default or delinquency will be fully cured (in accordance with the terms of this Agreement or otherwise, including by payment of the Cure Amount), or otherwise may not be asserted against the Purchaser or the Assets, as a result of the entry by the Bankruptcy Court of the 363 Order and the 365 Order, such that the Seller's rights in and under all such Assumed Contracts and Assumed Leases shall vest in the Purchaser upon the Closing without reversion or diminution. (iv) Given the Seller's actual financial condition and liquidity, all buildings, structures and other improvements included within the Leased Real Property are in good operating condition and repair, subject to continued repair and replacement in accordance with past practice. Except as disclosed on SCHEDULE 4.13, there are no leases, subleases, licenses and other agreements granting to any person or entity other than the Seller any right to the possession, use, occupancy or enjoyment of the Leased Real Property, or any portion thereof. No portion of the Leased Real Property has suffered any material damage by fire or other casualty which has not heretofore been completely repaired and restored to its original condition. (v) The Seller does not own or hold, and is not obligated under or a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell or dispose of the Leased Real Property or any portion thereof or interest therein. (b) The Assets include all real property and related rights and interests and all personal property of the Seller, both tangible and intangible, necessary to conduct the Business as it is currently conducted or as currently contemplated to be conducted by the Seller given its current financing and liquidity. (c) Subject to the representations and warranties set forth in this Article IV, the Assets are being sold without any implied warranties of merchantability or fitness for particular purposes.
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Title to and Use of Property. (a) (i) At the Closing, subject to the entry of the 363 Order, the Closing Purchaser will acquire good and marketable title to all of the Assets, in each case free and clear of any and all Encumbrances (including including, without limitation, any and all claims that may arise by reason of the execution, delivery or performance by the Seller Sellers of this Agreement) ), other than Permitted Encumbrances. Except Encumbrances and with respect to Assumed Contracts and Assumed Leases, subject to Purchaser's obligation to make the $500,000 of payments provided for in Section 1.4(d) or Section 1.5, as disclosed on SCHEDULE 4.13(a)(i), all of the Assets are and, at the Closing, will be located at the facilities described in Sections 4.13(a)(ii) and at the Seller's property in Gladwin, Michigan.
applicable; (ii) All no Seller owns any real property; (iii) all real estate constituting any part of the Assets that is used or held by the any Seller pursuant to any lease or other contractual arrangement as of the date hereof is designated in SCHEDULE 4.13 Section 3.14(a) of the Seller Disclosure Letter; (iv) other than Permitted Encumbrances and with respect to Assumed Contracts and Assumed Leases, subject to Purchaser's obligation to make the "LEASED REAL PROPERTY")$500,000 of payments provided for in Section 1.4(d) or Section 1.5, which Schedule 4.13 also sets forth as applicable, immediately prior to the date of, and parties toClosing, each real property leaseSeller will have leasehold interests in, or has other valid contractual rights to use, all of the date ofAssets of the type described in Section 3.14(a)(iii) above; (v) other than Permitted Encumbrances and with respect to Assumed Contracts and Assumed Leases, and parties tosubject to Purchaser's obligation to make the $500,000 of payments provided for in Section 1.4(d) or Section 1.5, as applicable, immediately prior to the Closing, each amendment, modification Seller will be in peaceful and supplement thereto, the term and renewal terms (whether or not exercised) thereof and a brief description undisturbed possession of the Leased Real Property covered thereby. Except as set forth on SCHEDULE 4.13, there is no underlying mortgage, deed of trust, lease, grant of term space or estate under the leases or other estate agreements under which it is a tenant or entitled to use the properties of a type described in or interest affecting any Leased Real Property which is superior to the interest of the Seller, whichever is applicable, Section 3.14(a)(iv) above being sold; (vi) as tenant under the applicable real property lease. The Seller has no ownership, financial or other interest in the landlord under any real property lease.
(iii) As to all Assets of the type described in Section 4.13(a)(iii)3.14(a)(i) or (iii) above, either (A) the each Seller is not in no respect in default or delinquent in any material respect in performing its obligations under the applicable such Assumed Contract Contract, lease or Assumed Lease, as the case may be, except as disclosed on SCHEDULE 4.13(a)(iv)other agreement, or (bB) other than Permitted Encumbrances and with respect to Assumed Contracts and Assumed Leases, subject to Purchaser's obligation to make the $500,000 of payments provided for in Section 1.4(d) or Section 1.5, as applicable, any such default or delinquency will be fully cured (in accordance with the terms of this Agreement or otherwise, including by payment of the Cure Amount)cured, or otherwise may not be asserted against the Purchaser or the Assets, as a result of the entry by the Bankruptcy Court of the 363 Order and the 365 Order, such that the Seller's Sellers' rights in and under all such Assumed Contracts and Assumed Leases leases or other agreements shall vest in the Purchaser upon the Closing without reversion or diminution.
; and (ivvii) Given each Seller has good and valid rights of ingress and egress to and from all the Seller's actual financial condition real property leased by it and liquidity, all buildings, structures constituting part of the Assets being sold from and other improvements included within the Leased Real Property are in good operating condition and repair, subject to continued repair and replacement in accordance with past practice. Except as disclosed on SCHEDULE 4.13, there are no leases, subleases, licenses and other agreements granting to any person or entity other than the Seller any right to the possessionpublic street systems for all usual street, use, occupancy or enjoyment of the Leased Real Property, or any portion thereof. No portion of the Leased Real Property has suffered any material damage by fire or other casualty which has not heretofore been completely repaired and restored to its original condition.
(v) The Seller does not own or holdroad, and is not obligated under or a party to, any option, right of first refusal or other contractual right to purchase, acquire, sell or dispose of the Leased Real Property or any portion thereof or interest thereinutility purposes.
(b) The Assets include include, without limitation, all real property and related rights and interests and all personal property of the SellerSellers, both tangible and intangible, necessary to conduct the Business as it is currently conducted or as currently contemplated to be conducted by the Seller given its current financing and liquidity.
(c) Subject Sellers, to provide all services that are the subject of Governmental Permits to the representations and warranties set forth extent currently provided by the Sellers, except for any Assets which, individually or in this Article IVthe aggregate if not owned by any Seller, the Assets are being sold without any implied warranties of merchantability or fitness for particular purposeswould not result in a Seller Material Adverse Effect.
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