Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens. (b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect. (c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto. (d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority. (e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 3 contracts
Sources: Stock Purchase and Sale Agreement (Janel Corp), Stock Purchase and Sale Agreement (Janel Corp), Stock Purchase and Sale Agreement (Rubicon Technology, Inc.)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company Borrowers and each of its their Restricted Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a have good and valid leasehold interest in each parcel of real property which is subject fee simple title to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported or rights to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Leasepurchase, or portion thereofvalid leasehold interests in, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or easements or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use limited property interests in or occupancy of all or any portion of any real property subject to a Lease, except, in the case of any UK Loan Party, legal title to and beneficial interest in all of their respective Real Property and have good title to their personal property and assets, in each case, except (i) for defects in title that do not materially interfere with their ability to conduct their business as currently conducted or to utilize such properties and assets for their intended purposes or (ii) and (iii), as where the failure to have such title or rights would not reasonably be expected to have a Company Material Adverse Effect.
(cb) The Company has made available Borrowers and their Restricted Subsidiaries solely and exclusively own or otherwise have a valid license or right to Purchaser correct use all rights in any and complete copies of all Leases, if anyintellectual property or other similar proprietary rights throughout the world, including any amendments thereto.
(d) Other than the real property commonly known asand all Patents, Trademarks, Copyrights, domain names, design rights, proprietary rights, technology, software, trade secrets, know-how, database rights and all related documentation, registrations, additions, improvements or accessions, and all goodwill and rights to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇for past, ▇▇▇▇▇▇▇▇▇▇▇present and future infringement associated with any of the foregoing (collectively, ▇▇ ▇▇▇▇▇ and certain land located “IP Rights”) that are used in, held for use in Bataviaor otherwise necessary for their respective businesses as presently conducted without any infringement, Illinois (dilution, misappropriation or other violation of the “Owned Real Property”)IP Rights of third parties, except to the extent the failure to own or have a license or have rights to use would not, or where such infringement, dilution, misappropriation or other violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Borrowers, neither the Company Borrowers nor any Company Subsidiary owns of their Restricted Subsidiaries infringes upon, misuses, dilutes, misappropriates or otherwise violates any real propertyIP Rights held by any Person, except any such infringement, misuse, dilution, misappropriation or other violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company No claim or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of litigation regarding any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party IP Rights is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Companythe Borrowers, threatened, threatened in writing against the Company, Borrower or any Company Restricted Subsidiary, the Owned Real Property that would reasonably be expected to have, individually or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectivelyaggregate, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryMaterial Adverse Effect.
Appears in 3 contracts
Sources: Credit Agreement (Concrete Pumping Holdings, Inc.), Credit Agreement (Concrete Pumping Holdings, Inc.), Credit Agreement (Concrete Pumping Holdings, Inc.)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all the personal of its real properties and tangible assets reflected in the latest audited balance sheet included in that are necessary for the Company SEC Reports and its Subsidiaries to conduct their respective businesses as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)currently conducted, free and clear of all Liens other than (i) Liens for current Taxes and assessments not yet past due or the Permitted Liens.
amount or validity of which is being contested in good faith by appropriate proceedings, (bii) Except as would mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the Ordinary Course of Business of the Company or such Subsidiary, (iii) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, have had materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted and (iv) non-exclusive licenses to Intellectual Property granted in the Ordinary Course of Business of the Company or its Subsidiaries (“Permitted Liens”). Except as would not be reasonably be expected likely to have have, individually or in the aggregate, a Company Material Adverse Effect: (i) each lease or license pursuant to which , the tangible personal property currently used in the operation of the business of the Company and the Company its Subsidiaries leases or licenses any real property is in good working order, repair and condition (collectively, the “Leases” reasonable wear and each such property, a “Leased Real Property”tear excepted).
(b) is valid and binding on Each of the Company and each of its Subsidiaries party thereto andhas complied with the terms of all leases to which it is a party, to the knowledge of the Company, each other party thereto and is all such leases are in full force and effect; (ii) there is no breach , except for any such noncompliance or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported failure to be leased in full force and effect that, individually or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii)aggregate, as would not reasonably be expected to be material to the Company. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, would not reasonably be likely to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary of its Subsidiaries owns or has received from ever owned any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabledreal property. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge Section 2.18(c) of the Company (without Disclosure Letter sets forth a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking true and complete list of all real property leased or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder licensed for the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct benefit of the business of any Company or any Company Subsidiaryof its Subsidiaries (the “Leased Real Property”).
Appears in 3 contracts
Sources: Transaction Agreement (VectivBio Holding AG), Transaction Agreement (Ironwood Pharmaceuticals Inc), Transaction Agreement (Ironwood Pharmaceuticals Inc)
Properties. Each of the Company and its Subsidiaries (a) The Company or one of its Subsidiaries has good and marketable and indefeasible title to all the personal properties properties, assets and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being premises owned by the Company or one any of its Subsidiaries, or that have been acquired after Subsidiaries (the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business“Company Owned Properties”), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notof any nature whatsoever, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: except (i) each lease statutory Liens not yet delinquent which are being contested in good faith by appropriate proceedings, (ii) Liens for Taxes not yet due and payable or license pursuant to that are being contested in good faith and for which the Company adequate reserves have been established and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding reflected on the Company and each of its Subsidiaries party thereto and, to the knowledge financial statements of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred easements, rights of way, and other similar encumbrances that with do not adversely affect the value or without affect the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge use of the Company, any other party thereto; properties or assets subject thereto or affected thereby or otherwise impair business operations at such properties as bank facilities and (iv) to such imperfections or irregularities of title or Liens as do not materially affect the knowledge use of the Companyproperties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties (collectively, “Permitted Encumbrances”), and (b) is the lessee or sublessee of all properties, assets and premises leased or subleased by the Company or one of its Subsidiaries that is either (the tenant or licensee named under “Company Leased Properties” and, collectively with the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for Company Owned Properties, the full term of the respective Lease “Company Real Property”), free and clear of all Liens of any Liens; nature whatsoever, except for Permitted Encumbrances, and (v) the Company and Company Subsidiaries are is in possession of the properties purported to be leased or licensed thereunder, have not assignedand each such lease is valid without default thereunder by the lessee or sublessee or, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary to the Knowledge of the Company, the lessor. None of the Company or any of its Subsidiaries owns, and no such entity is in the process of foreclosing (whether by judicial process or by power of sale) or otherwise in the process of acquiring title to, except pursuant to foreclosures which are pending in the ordinary course of business consistent with past practice, any subleasereal property or premises on the date hereof in whole or in part. Section 3.21 of the Company Disclosure Schedule contains a complete and correct list of (i) all Company Owned Properties, license including real property designated as “other real estate owned” by the Company and other real property or other agreement that is material premises operated by the Company or any of its Subsidiaries as of the date hereof and (ii) all Company Leased Properties and together with a list of all applicable leases or subleases (each, a “Lease”) and the name of the lessor or sublessor.
(a) All buildings, structures, improvements and fixtures on the Company Real Property and the equipment located thereon are in good operating condition and repair, ordinary wear and tear excepted, and are collectively sufficient to carry on the respective businesses of the Company and its Subsidiaries in the ordinary course consistent with past practice. All Company Owned Properties and, to the Knowledge of the Company, all Company Leased Properties conform to all applicable Laws.
(b) As to the Company and its Subsidiaries, none of the Company Real Property has been condemned or otherwise taken as a wholeby any Governmental Entity and, and that relates to the Knowledge of the Company, no condemnation or taking is threatened or contemplated and none thereof is subject to any claim, contract or Law which might adversely affect its use or occupancy value for the purposes now made of all or any portion it. None of any real property the Company Real Property is subject to a Lease, except, in any current interests of third parties or other restrictions or limitations that would impair or be inconsistent with the case current use of (ii) and (iii), as would not reasonably be expected to have a such Company Material Adverse EffectReal Property by the Company or such Subsidiary.
(c) The Company has made available delivered to Purchaser correct Parent true, accurate and complete copies of each of the following to the extent in the possession or control of the Company or its Subsidiaries and in any way related to any of the Company Real Property: (i) title commitments together with legible copies of all Leasesunderlying exceptions, if any(ii) title policies, including (iii) environmental reports, (iv) zoning reports and zoning letters, (v) licenses and permits, and (vi) Leases and any amendments theretoor renewals thereof.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither Neither the Company nor any of its Subsidiaries has leased, subleased, licensed or granted occupancy rights in any portion or any parcel of Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear and, to the Knowledge of the Company, no other Person has any Liensrights to the use, (ii) there are no leases, licenses, occupancy or occupancy agreements enjoyment thereof pursuant to which any third party is Lease, license, occupancy or other agreement.
(e) Since December 31, 2018, there has not been any material damage, destruction or other casualty loss with respect to any material asset or property owned, leased or otherwise used by the Company or its Subsidiaries, whether or not covered by insurance.
(f) Neither the Company nor any of its Subsidiaries has granted the right to use the Owned Real Property, (iii) there are no outstanding any options or rights of first refusal to purchase the any Company Owned Real Property (or any portion thereof or interest therein, and the ).
(g) The Company Owned Real Property is occupied under a valid certificate of occupancy or similar permit. The Mergers will not currently being offered for sale, (iv) neither require the Company nor issuance of any Company Subsidiary is in default, new or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse amended certificate of time or both, would constitute such a default, and (v) there is no proceeding or claim pending oroccupancy and, to the knowledge Knowledge of Company, threatened, against the Company, any there are no facts that would prevent the Company Subsidiary, Owned Property from being occupied by Parent after the Owned Real Property or Closing in the Improvements (same manner as defined below) or personal property thereon, in any court or before any Governmental Authorityoccupied by the Company immediately prior to the Closing.
(eh) Neither the Company nor any Company Subsidiary of its Subsidiaries has received written notice from a Governmental Entity that a Company Owned Property is not in material compliance with applicable health and safety related requirements, including those requirements under the American with Disabilities Act of 1990, as amended.
(i) The buildings, driveways and all other structures and improvements upon the Company Owned Properties are all wholly within the boundary lines and lot limits of such Company Owned Property or have the benefit of valid easements or similar property rights and do not encroach on any Governmental Authority adjoining premises or easement or similar property right benefiting such Company Owned Property that would affect the use thereof. There are no encroachments on any Company Owned Property or any easement of property, right or benefit appurtenant thereto by any improvements located on any adjoining property which detract from the use thereof. There are no outstanding requirements or recommendations by any insurance company that has issued a policy covering the Company Owned Properties, or by any board of fire underwriters or other body exercising similar functions, requiring or recommending any repairs or work to be done on any such property.
(j) Each of the Leases is valid and existing and in full force and effect and constitutes a valid and binding obligation of each party thereto, enforceable against each such party in accordance with its terms (in each case, subject to the Bankruptcy and Equity Exception), and no party thereto is in default and no notice of a claim of default by any party has been delivered to the Company or any of its Subsidiaries, or is now pending, and there does not exist any event that with notice or the passing of time, or both, would constitute a default or excuse performance by any party thereto, provided that with respect to matters relating to any party other than the Company or one of its Subsidiaries, the foregoing representation is based on the Knowledge of the Company.
(k) Since December 31, 2018, neither the Company nor any of its Subsidiaries has received or sent any written notice of termination, cancellation, breach or default from another party under any uncured violation of any applicable Laws pertaining the Leases that has not since been rescinded.
(l) None of the Leases referred to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and Company Disclosure Schedule will expire prior to the Owned Real Property Effective Time pursuant to their terms.
(collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. m) Neither the Company nor any Company Subsidiary of its Subsidiaries has made (i) assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any material alterations, additions, or Improvements to of its rights and interest in any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor Leases or (ii) collaterally assigned or granted any Company Subsidiary has received written notice of other security interests in any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all Lease or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryinterest therein.
Appears in 3 contracts
Sources: Merger Agreement (Bank of Commerce Holdings), Merger Agreement (Bank of Commerce Holdings), Merger Agreement (Columbia Banking System, Inc.)
Properties. (a) The Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, the Company or one of and its Subsidiaries has have good and marketable title to to, or valid leasehold interests in, all the personal properties property and assets reflected in the latest audited balance sheet included in on the Company SEC Reports as being owned by the Company Balance Sheet or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (Company Balance Sheet Date, except properties sold or otherwise as have been disposed of since the date thereof Company Balance Sheet Date in the ordinary course of business), free and clear of all Liens other than the any Liens, title defects, covenants or reservations of interests in title except for Permitted Liens.
(b) Except as would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: Effect on the Company, (i) each lease lease, sublease or license pursuant to under which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries orleases, subleases or licenses any real property (each, a “Lease”) is valid, binding and in full force and effect, (ii) neither the Company nor any of its Subsidiaries, nor to the knowledge Company’s Knowledge any other party to a Lease, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Lease, and neither the Company nor any of its Subsidiaries has received notice in writing alleging that it has breached, violated or defaulted under any Lease, (iii) neither the Company nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any Person the right to use or occupy the premises demised under the Lease (the “Leased Real Property”) or any portion thereof, and (iv) as of the date hereof, neither the Company nor any of its Subsidiaries has received written notice of any pending, and to the Knowledge of the Company, there is no threatened, condemnation proceeding with respect to any other party thereto; Leased Real Property. As of the Effective Time (iii) no event has occurred that with or without the lapse and assuming receipt of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, applicable consent required pursuant to the knowledge terms of the Company, any other party thereto; (iv) to the knowledge of the Companya lease), the Company Surviving Corporation or one of its Subsidiaries that is either will hold such Leased Real Property on terms and conditions in all material respects the tenant or licensee named under same as those set forth in the applicable Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term as of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunderdate hereof, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), except as would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against Effect on the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Palm Inc), Merger Agreement (Hewlett Packard Co)
Properties. (a) The Company Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned subleased by the Company or one any Subsidiary as of its Subsidiaries, or that have been acquired after the date thereof hereof (the “Real Property”). The Company and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof its Subsidiaries do not own any Real Property in the ordinary course of business), free and clear of all Liens other than the Permitted Liensfee simple.
(b) Except as would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each material lease or license pursuant to which the Company of Real Property, together with all amendments and the Company Subsidiaries leases or licenses any real property modifications thereto (collectively, the “Leases” and each such propertyeach, a “Leased Real PropertyLease”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effecteffect in accordance with its terms; (ii) there is no breach all material amounts due and payable as rent due under each such Lease have been paid in full (except that routine reconciliations of typical lease charges such as taxes, common area maintenance payments, insurance and the like may still be owed for prior years if such amounts have not been billed by landlords or default under any Lease by are in the Company routine process of payment on the date hereof or any of its Subsidiaries or, to the knowledge of the Company, any other party theretoare being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement of the original term of such Lease and no event material waiver, indulgence or postponement of the lessee’s obligations thereunder has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease been granted by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party theretolessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the knowledge giving of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary or, to the knowledge of Seller, any other party thereto, has violated any of the terms or conditions under any such Lease, except for any such violations which would not have, individually or in the aggregate, a defaultMaterial Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and (v) there is water utilities with respect to all Real Property for operation of the business of the Company and its Subsidiaries in the ordinary course and consistent in all material respects with past practice and with the business plans of the Company and its Subsidiaries as in effect on the date hereof, except for the failure of the Company or its Subsidiaries to have such rights as would not constitute, individually or in the aggregate, a Material Adverse Effect. Except as would not have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or claim other litigation is pending or, to the knowledge of CompanySeller, threatened, against threatened which would preclude or impair the Company, use of any Company Subsidiary, the Owned such Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither by the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining and its Subsidiaries for the purposes for which it is currently used or proposed to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any be used as of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiarydate hereof.
Appears in 3 contracts
Sources: Unit Purchase Agreement (Express Parent LLC), Unit Purchase Agreement (Express Parent LLC), Unit Purchase Agreement (Limited Brands Inc)
Properties. (a) The Company or one Section 4.14(a) of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being Disclosure Schedule sets forth a complete and accurate list of all real property owned by the Company or one and each of its SubsidiariesSubsidiaries (collectively, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business“Owned Real Property”), free and clear of all Liens other than the Permitted Liens.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (iSection 4.14(b) each lease or license pursuant to which of the Company Disclosure Schedule sets forth a complete and accurate list of all real property leased, subleased, licensed, used or occupied by the Company or its Subsidiaries leases other than parking spaces, common areas or licenses any real property walkways (collectively, the “Leases” and each such propertyeach, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge location of the Companypremises, each and all leases, subleases, license agreements (each, a “Lease”) and other party thereto and is in full force and effect; (ii) there is no breach similar such agreements, including any amendments or default under any Lease by modifications thereto, pursuant to which the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold an interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and Leased Real Property.
(vc) the Company and Company Subsidiaries are in possession of the properties purported to be leased Except as would not have or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Company and its Subsidiaries has good and valid title in fee simple to all of the Owned Real Property and good title to, or valid leasehold interests in, all Leased Real Property and all other property and assets reflected on the Company Balance Sheet or acquired after the Company Balance Sheet Date, except as have been disposed of since the Company Balance Sheet Date in the ordinary course of business consistent with past practice, and (ii) all such properties are free and clear of all Liens of any nature whatsoever, except Permitted Liens. All such properties and assets are in good condition and repair, reasonable wear and tear excepted, and are adequate to carry on the business of the Company and the Company’s Subsidiaries, except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than Except as would not have or reasonably be expected to have, individually or in the real property commonly known asaggregate, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇a Company Material Adverse Effect, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good each Lease and indefeasible fee simple title to all each lease under which the Company or any of the Owned Real Property, free its Subsidiaries leases any personal property is valid and clear of any Liens, in full force and effect and (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any of its Subsidiaries, nor, to the Company’s knowledge as of the date hereof, any other party to a Lease or a lease under which the Company Subsidiary or any of its Subsidiaries leases any personal property, is in defaultviolation of any provision of any such lease, or has ever been in defaultand there is not, under any restrictive covenants affecting the Owned Real Propertyof such leases, and no any existing default or event has occurred that, after which with notice or the lapse of time or both, both would constitute such become a default, and (v) there is no proceeding or claim pending orin each case, to by the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryof its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Hanesbrands Inc.), Merger Agreement (Maidenform Brands, Inc.)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as has not had or would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which , the Company and the Company Subsidiaries leases have good and marketable title, in fee or licenses any real property (collectivelyvalid leasehold, easement, license, right of way or other rights, to the “Leases” and each such property, a “Leased Real Property”) is valid and binding on Retained Assets necessary to permit the Company and each of its the Company Subsidiaries party thereto and, to conduct their business with respect to the knowledge Retained Assets as currently conducted free and clear of any Liens, options, rights of first refusal, rights of first offer or any similar options to purchase or lease all or any portion of the CompanyRetained Assets, each conditions, encroachments, easements, rights-of-way, restrictions or other party thereto and is in full force and effect; (ii) there is no breach or default under similar encumbrances, other than Permitted Liens. In the case of any Lease such real property leased by the Company or any of its the Company Subsidiaries or subject to an easement or other rights of use for the benefit of the Company or any of the Company Subsidiaries, except as has not had or would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there exists no uncured breach or default on the part of the Company or any of the Company Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time landlord, under the applicable lease, or the giving grantor or licensor, under the applicable easement or use agreement. There are no condemnation or eminent domain proceedings (or any consensual agreement in lieu of notice condemnation or both would constitute a breach eminent domain) pending, or default under to the knowledge of the Company threatened in writing, with respect to any Lease by real property that the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company Subsidiaries owns, leases or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, operates in the case of (ii) and (iii)Retained Assets, except as has not had or would not not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (InfraREIT, Inc.)
Properties. (a) The Company has good and valid title to, or one in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its Subsidiaries has good title to all the personal real properties and tangible assets reflected in the latest audited balance sheet included in that are necessary for the Company SEC Reports and its Subsidiaries to conduct their respective businesses as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)currently conducted, free and clear of all Liens other than (i) statutory Liens for current Taxes not yet due and payable or the Permitted Liens.
amount or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established on the financial statements of the Company in accordance with GAAP, (bii) Except as would mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the Ordinary Course of Business, (iii) nonexclusive Intellectual Property licenses granted in the Ordinary Course of Business, and (iv) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, have materially impair the continued ownership, use and operation of the assets to which they relate in the business of the applicable Person as currently conducted (“Permitted Liens”). Except as has not had or and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect: (i) each lease or license pursuant to which , the tangible personal property currently used in the operation of the business of the Company and the Company its Subsidiaries leases or licenses any real property is in good working order (collectively, the “Leases” reasonable wear and each such property, a “Leased Real Property”tear excepted).
(b) is valid and binding on Each of the Company and each of its Subsidiaries party thereto andhas complied with the material terms of all leases to which it is a party, and to the knowledge of the Company, each other party thereto and is all such leases are in full force and effect; (ii) there is no breach or default effect and neither the lessor under any Lease Agreement nor any of the tenants under any Lease Agreement is in default of any of its obligations under such Lease Agreement. No notice of any default of the lessor under any Lease Agreement has been given or, to the best of Company’s knowledge, is pending, and no tenant has given notice (written or oral) of its intention to vacate its premises upon expiration of its Lease Agreement or otherwise. The rents and additional rents due under the Lease Agreements are actually being paid. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases. All work required to be performed by the lessor under the Lease Agreements has been completed and full payment for such work has been tendered. No tenant allowances are due to the tenants pursuant to the Lease Agreements (other than such as have been paid in full). Each Lease Agreement is the entire agreement between the applicable parties under such Lease Agreement, including all representations and warranties, and there are no other agreements between such parties of any kind. The Company has paid in full all obligations for brokerage commissions and finders’ fees incurred in entering into the Lease Agreements. The Company has delivered true, correct and complete copies of the Lease Agreements (including, without limitation, any and all modifications, extensions and amendments thereto) to Parent. No party has the right or option to purchase the property subject to a Lease Agreement.
(c) Neither the Company nor any of its Subsidiaries owns any real property. Section 3.18(c) of the Company Disclosure Letter sets forth a true and complete list of all real property leased by or for the benefit of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real PropertyLease Agreements”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title This Section 3.18 does not relate to all of the Owned Real Intellectual Property, free and clear which is the subject of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental AuthoritySection 3.19.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Coherus BioSciences, Inc.), Merger Agreement (Surface Oncology, Inc.)
Properties. (a) The Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Company or one of its Subsidiaries has good fee simple title to all the personal properties Owned Real Property and assets reflected valid leasehold estates in all Leased Real Property free and clear of all Encumbrances, except Permitted Encumbrances. Except as has not had and would not reasonably be expected to have, individually or in the latest audited balance sheet included in the Company SEC Reports as being owned by aggregate, a Material Adverse Effect, the Company or one of its SubsidiariesSubsidiaries has exclusive possession of each Leased Real Property and Owned Real Property, other than any use and occupancy rights granted to third-party owners, tenants or that have been acquired after the date thereof and that are material licensees pursuant to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof agreements with respect to such real property entered in the ordinary course of business). Other than as listed in Section 3.13 of the Company Disclosure Letter, free and clear neither the Company nor any of all Liens its Subsidiaries is a lessor or grantor under any material lease or other than instrument granting to any other Person any right to the Permitted Lienspossession, lease, occupancy or enjoyment of any material Owned Real Property or material portion thereof.
(b) Except as has not had and would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: , (i) each lease or license pursuant to which for the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and Property is in full force and effect; effect and is valid, binding and enforceable in accordance with its terms, except that such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws affecting creditors’ rights generally and general principles of equitable relief, and (ii) there is no breach or default under any Lease lease for the Leased Real Property either by the Company or any of its Subsidiaries or, to the knowledge Knowledge of the Company, by any other party thereto; (iii) , and no event has occurred that that, with or without the lapse of time or the giving of notice or both both, would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; thereunder.
(ivc) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease Except as has a good not had and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge Knowledge of Company, threatened, against the Company, threatened condemnation or eminent domain proceedings that affect any Company Subsidiary, the Owned Real Property or the Improvements Leased Real Property, and (as defined belowii) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor has not received any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation the intention of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain Governmental Entity or other public acquisition proceeding that would result in the taking of all or Person to take any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryProperty.
Appears in 2 contracts
Sources: Merger Agreement (United Technologies Corp /De/), Merger Agreement (Goodrich Corp)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as has not been or would notnot reasonably be expected to be, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, the Company and that relates to its Subsidiaries have good title to, or good and valid leasehold interests in, all property and assets reflected on the use Balance Sheet or occupancy acquired after the Balance Sheet Date, except as have been disposed of since the Balance Sheet Date in the ordinary course of business consistent with past practice and in compliance with this Agreement, in each case free and clear of all or Liens (other than Permitted Liens).
(b) Neither the Company nor any portion of its Subsidiaries owns, nor has ever owned, fee title to any real property subject property. Neither the Company nor any of its Subsidiaries is party to a Lease, except, in an option or other agreement for the case purchase or sale of (ii) and (iii), fee title to real property. Except as has not been or would not reasonably be expected to have be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, each lease, sublease (and, together with any consent) or license (each, a “Lease”) under which the Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies or any of all Leasesits Subsidiaries leases, if any, including subleases or licenses any amendments thereto.
(d) Other than the real property commonly known as(whether as landlord or tenant), ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇and to the Knowledge of the Company, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois the prime lease for any Lease that is a sublease (the “Owned Real PropertyPrime Lease”), neither is valid, binding and in full force and effect and is enforceable in accordance with its terms by the Company or its applicable Subsidiary party thereto subject to the Enforceability Exceptions. Neither the Company nor any Company Subsidiary owns any real property. The Company or of its Subsidiaries, nor to the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all Knowledge of the Owned Real PropertyCompany any other party to a Lease or Prime Lease, free and clear of has violated any Liens, (ii) there are no leases, licensesprovision of, or occupancy agreements pursuant taken or failed to which take any third party is granted the right to use the Owned Real Propertyact which, (iii) there are no outstanding options with or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest thereinwithout notice, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute a breach or default under the provisions of such a defaultLease or any Prime Lease, except for those breaches or defaults that have not been and (v) there is no proceeding would not reasonably be expected to be, individually or claim pending orin the aggregate, material to the knowledge of CompanyCompany and its Subsidiaries, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (taken as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disableda whole. Neither the Company nor any Company Subsidiary of its Subsidiaries has made any material alterations, additionsreceived or given written notice that it, or Improvements any other party to any of Lease or the Leased Real Property that may be required to be removed upon termination of the term of the applicable Prime Lease, has breached, violated or defaulted under, any Lease or Prime Lease. Neither the Company nor any Company Subsidiary of its Subsidiaries has received written notice of assigned, pledged, mortgaged, hypothecated or otherwise transferred any existing, proposed, or, to the actual knowledge Lease or any interest therein. Schedule 3.15(b) of the Company (without Disclosure Letter sets forth a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking true and complete list of all Leases to which the Company or any part of its Subsidiaries is a party, in each case identifying the tenant or subtenant and the landlord or sublandlord under each such Lease (and, if applicable, the prime landlord under the applicable Prime Lease) and the address of the real property associated with such Lease. The Company or one of its Subsidiaries holds a good and valid leasehold or sublease interest under each of the Leases, in each case, free and clear of Liens (other than Permitted Liens). Neither the Company nor any of its Subsidiaries has received any written notice from or given any written notice to any third party to any Lease or Prime Lease that a termination event or condition exists with respect thereto or that such party or another party thereto has terminated or intends to terminate such Lease or Prime Lease.
(c) As used in this Agreement, “Leased Real Property” means all real property leased by the Company or any of its Subsidiaries under any Lease, together with all rights, title and interest of the Company or any of its Subsidiaries in and to leasehold improvements relating thereto, including security deposits, reserves or prepaid rents paid in connection therewith. The Leased Real Property constitutes all of the real property used by the Company or Owned Real Property any of its Subsidiaries in the operation of their respective businesses. To the Knowledge of the Company, the Company or that its applicable Subsidiary obtained all necessary consents for each Lease. Except as has not had and would prevent not reasonably be expected to have, individually or hinder in the continued use aggregate, a Company Material Adverse Effect, (i) all personal property owned or leased by the Company or any of its Subsidiaries and enjoyment of any all buildings, structures, fixtures and other improvements included in the Leased Real Property or are usable for their intended purposes in the Owned ordinary course of, and are sufficient for the operation of, the business of the Company and its Subsidiaries, (ii) the Leased Real Property as heretofore used is in good condition and repair (subject to normal wear and tear), (iii) none of the Leased Real Property has been damaged or destroyed by fire or other casualty that has not been restored and (iv) the Leased Real Property has full and free legally enforceable access to and from public roads and are currently supplied with such utilities, which access and utilities are sufficient for the operation of the business of the Company and its Subsidiaries. No Person leases, subleases, licenses or otherwise has the right to use or occupy, and no Person is in possession of, any of the Leased Real Property other than the Company or any Subsidiary of the Company. To the Knowledge of the Company, the Leased Real Property constitutes all the real property necessary for the conduct of the Company’s business of any Company or any Company Subsidiaryas currently conducted.
Appears in 2 contracts
Sources: Merger Agreement (Astria Therapeutics, Inc.), Merger Agreement (Biocryst Pharmaceuticals Inc)
Properties. (a) The With respect to the real property owned by the Company or one of its Subsidiaries has good title to all and the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports Improvements (as being owned by defined below) thereon (collectively, “Owned Real Property”), the Company or one of its Subsidiaries, or that have been acquired after the date thereof as applicable, has good and that are material marketable title to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)Owned Real Property, free and clear of all Liens any Lien (other than the Permitted Liens.
); (b) Except as would notwith respect to the real property leased, individually subleased or in the aggregate, have had or reasonably be expected licensed to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company or its Subsidiaries and the Company Subsidiaries leases or licenses any real property Improvements (as defined below) thereon (collectively, the “Leases” and each such property, a “Leased Real Property”), the Company or one of its Subsidiaries, as applicable, has a good and valid leasehold interest, free and clear of any Lien (other than Permitted Liens) in all such Leased Real Property and the lease, sublease or license with respect to such Leased Real Property is valid valid, and binding on the Company or its Subsidiaries, as applicable, and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto thereto, and is in full force and effect; (ii) there is no breach or default under any Lease by , and none of the Company or any of its Subsidiaries or, to the knowledge is in breach of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company such lease, sublease or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Propertylicense, and no event has occurred thatwhich, after notice or the with notice, lapse of time or both, would constitute a breach or default by any of the Company or its Subsidiaries or permit termination, modification or acceleration by any third party thereunder; (c) with respect to tangible assets, the Company or one of its Subsidiaries, as applicable, has a good and valid fee title or leasehold interest, free and clear of any Lien (other than Permitted Liens) in all such tangible assets that are necessary for the Company and its Subsidiaries to conduct their respective businesses as currently conducted, except as has not had or would not reasonably be expected to have, individually or in the aggregate, a defaultMaterial Adverse Effect on the Company; (d) all buildings, structures, fixtures and improvements included within the Owned Real Property and Leased Real Property (the “Improvements”) are in good repair and operating condition, subject only to ordinary wear and tear, and (v) there is no proceeding are adequate and suitable for the purposes for which they are presently being used or claim pending orheld for use, and to the knowledge of Company, threatened, against the Company, there are no facts or conditions affecting any of the Improvements that, in the aggregate, would substantially interfere with the current use, occupancy or operation thereof; and (e) the Company Subsidiary, has not received written notice with respect to the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received Leased Real Property from any Governmental Authority written notice of Entity pertaining to any uncured violation of any applicable Laws pertaining law, ordinance, rule or regulation, which would have or would reasonably be expected to any buildings, structures, fixtures, have a Material Adverse Effect on the Company. Section 4.18 of the Company Disclosure Schedule contains a true and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the complete list of all Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required Property. The applicable Tenant with respect to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use enjoys peaceful and enjoyment undisturbed possession of any such Leased Real Property Property, except for any such failure to do so that, individually or the Owned Real Property as heretofore used in the conduct of the business of any Company aggregate, would not have or any Company Subsidiaryreasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Labarge Inc), Merger Agreement (Ducommun Inc /De/)
Properties. (a) The Company or one of its Subsidiaries Qwest and each Qwest Subsidiary has good and valid title to to, or good and valid leasehold interests in, all the personal their respective properties and assets reflected (the “Qwest Properties”) except in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notrespects that, individually or in the aggregate, have not had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Qwest Material Adverse Effect. The Qwest Properties are, in all respects, adequate and sufficient, and in satisfactory condition, to support the operations of Qwest and the Qwest Subsidiaries as presently conducted, except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Qwest Material Adverse Effect. All of the Qwest Properties are free and clear of all Liens, except for Liens on material Qwest Properties that, individually or in the aggregate, do not materially impair and would not reasonably be expected to materially impair, the continued use and operation of such material Qwest Property to which they relate in the conduct of Qwest and the Qwest Subsidiaries as presently conducted and Liens on other Qwest Properties that, individually or in the aggregate, have not had and would not reasonably be expected to have a Qwest Material Adverse Effect. This Section 4.15 does not relate to Intellectual Property Rights matters, which are the subject of Section 4.16.
(b) Qwest and each of the Qwest Subsidiaries has complied with the terms of all leases, subleases and licenses entitling it to the use of real property owned by third parties (“Qwest Leases”), and all Qwest Leases are valid and in full force and effect, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Qwest Material Adverse Effect. Qwest and each Qwest Subsidiary is in exclusive possession of the properties or assets purported to be leased under all the Qwest Leases, except for such failures to have such possession of material properties or assets as, individually or in the aggregate, do not materially impair and would not reasonably be expected to materially impair, the continued use and operation of such material assets to which they relate in the conduct of Qwest and Qwest Subsidiaries as presently conducted and failures to have such possession of immaterial properties or assets as, individually or in the aggregate, have not had and would not reasonably be expected to have a Qwest Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Centurytel Inc), Merger Agreement (Qwest Communications International Inc)
Properties. (a) The Company or one of Parent and its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)have, free and clear of all Liens other than the except for Permitted Liens, title to or valid leasehold interests in, the inventory, equipment and other tangible and intangible property used or held for use in the conduct of their respective businesses, in each case as necessary to permit Parent and its Subsidiaries to conduct their respective businesses as currently conducted in all material respects.
(b) Except as would notEach of Parent and its Subsidiaries has complied in all material respects with the terms of all leases to which it is a party or under which it is in occupancy and all leases to which Parent or any of its Subsidiaries is a party or under which it is in occupancy are in full force and effect. Each of Parent and its Subsidiaries enjoys peaceful and undisturbed possession of the properties or assets purported to be leased under its leases, except where the failure to have such possession has not had and is not reasonably likely to have a Parent Material Adverse Effect.
(c) Neither Parent nor any of its Subsidiaries has violated the terms of any Easement, except any such violations that, individually or in the aggregate, have not had or and are not reasonably be expected likely to have a Company Parent Material Adverse Effect: (i) each lease or license pursuant . Except as would not reasonably be likely to which the Company and the Company Subsidiaries leases or licenses any real property (collectivelyhave a Parent Material Adverse Effect, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each all Easements in favor of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company Parent or any of its Subsidiaries or, are valid and enforceable and grant the rights purported to be granted thereby and all rights necessary thereunder for the knowledge operation of the Company, any other party thereto; (iii) respective businesses of Parent and its Subsidiaries. There are no event has occurred that with or without spatial gaps in the lapse Easements in favor of time or the giving of notice or both would constitute a breach or default under any Lease by the Company Parent or any of its Subsidiaries or, that would reasonably be likely to the knowledge have a Parent Material Adverse Effect and all parts of the Company, any other party thereto; (iv) to the knowledge pipeline assets which constitute a portion of the Company, the Company assets of Parent or any of its Subsidiaries are located either on property which is owned in fee by Parent or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real on property which is subject to a Lease for the full term an Easement in favor of the respective Lease free and clear Parent or one of its Subsidiaries. Neither Parent nor any of its Subsidiaries has received any notice from any person disputing or challenging its ownership of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased fee interests or licensed thereunderEasement, other than disputes or challenges that have not assigned, pledged, mortgaged, hypothecated had or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would are not reasonably be expected likely to have a Company Parent Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Chesapeake Utilities Corp), Merger Agreement (Florida Public Utilities Co)
Properties. (a) The Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited unaudited balance sheet of the Company as at June 30, 2019 included in the Company SEC Reports Documents as being owned by the Company or one of its Subsidiaries, Subsidiaries or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens, except (a) statutory Liens other than securing payments not yet due or the Permitted Liens.
amount or validity of which is being contested in good faith by appropriate proceedings, (b) Liens arising under worker’s compensation, unemployment insurance, social security, retirement and similar legislation and (c) such imperfections or irregularities or title, easements, rights of way and other Liens, whether or not of record, that do not materially affect the use of the properties or assets subject thereto for the purposes for which they are currently being used. Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which , the Company and or one of its Subsidiaries is the lessee of all leasehold estates reflected in the unaudited balance sheet of the Company Subsidiaries as at June 30, 2019 included in the Company SEC Documents or acquired after the date thereof that are material to the Company’s business on a consolidated basis (except for leases that have expired by their terms since the date thereof or licenses any real property (collectivelybeen assigned, terminated or otherwise disposed of in the “Leases” ordinary course of business consistent with past practice) and is in possession of the properties purported to be leased thereunder, and each such property, a “Leased Real Property”) lease is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or without default under any Lease thereunder by the Company or any of its Subsidiaries lessee or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred the lessor. Except as would not result in a Material Adverse Effect, the buildings and structures of the Facilities are structurally sound, in good operating condition, and are adequate for the uses to which they are being put, and none of such property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that with are not material in nature or without the lapse cost. Section 3.17 of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any Disclosure Letter sets forth the production capacity of its Subsidiaries or, to each Facility as of the date of this Agreement. To the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good there are no existing, pending or threatened condemnation Actions or similar proceedings relating to any Facilities and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, circumstances reasonably likely to cause a material production reduction or occupancy agreements pursuant to which stoppage at any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, Facility and no event has occurred that, after notice such reduction or the lapse of time or both, would constitute such a default, and (v) there stoppage is no proceeding or claim pending or, to the knowledge of Company, threatened, against planned. “Facilities” means collectively the Company’s manufacturing facilities in Buchanan, any Company SubsidiaryNew York, the Owned Real Property or the Improvements (Silver Grove, Kentucky and Palatka, Florida and each site complex individually is referred to as defined below) or personal property thereon, in any court or before any Governmental Authoritya “Facility”.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Continental Building Products, Inc.), Merger Agreement (Continental Building Products, Inc.)
Properties. (a) The Company or one As of its Subsidiaries has good title to all the personal properties and assets reflected in date of this Agreement, Schedule 3.05 sets forth the latest audited balance sheet included in the Company SEC Reports as being address of each Material Real Estate Asset owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Lienssuch Loan Party.
(b) Except as would not[Reserved].
(c) Each of the Loan Parties has good and valid fee simple title (or similar concept under any applicable jurisdiction) to or rights to purchase, individually or valid leasehold interests in, or other limited property interests in, all its Real Estate Assets (including any Mortgaged Properties) and has good title to its personal property and assets (other than IP Rights, which are addressed in the aggregateSection 3.05(d) through (f)), have had or reasonably be expected to have a Company Material Adverse Effect: in each case, except (i) each lease for defects in title that do not materially interfere with its ability to conduct its business as currently conducted or license pursuant to which the Company utilize such properties and the Company Subsidiaries leases assets for their intended purposes or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach where the failure to have such title or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as rights would not reasonably be expected to have a Company Material Adverse Effect. All such properties and assets are free and clear of Liens, other than Permitted Liens, liens arising by operation of law, and minor defects in title which do not mutually interfere with the ability of the Loan Parties to conduct their businesses.
(d) To the knowledge of the Borrowers, each Loan Party has valid and subsisting title to, or a valid license or right to use, all patents, patent applications, trademarks, service marks, copyrights, trade secrets, domain names, proprietary know-how and other rights in works of authorship (including all copyrights embodied in software) and all other intellectual property rights (the foregoing, collectively, “IP Rights”) needed to conduct the businesses of the Loan Parties as presently conducted, except where such failure to own or license or have rights to use would not have, individually or in the aggregate, a Material Adverse Effect. To the knowledge of the Borrowers, no Loan Party, nor the operation of its business as presently conducted, infringes upon, misuses, or misappropriates any intellectual property rights of any third party, except where such infringement, misuse or misappropriation would not have, individually or in the aggregate, a Material Adverse Effect.
(ce) The Company Each Loan Party has made available taken commercially reasonable steps to Purchaser correct and complete copies maintain the confidentiality of all Leasesconfidential and proprietary information that is owned by such Loan Party, if any, including any amendments theretomaterial to the business of such Loan Party and that such Loan Party holds or purports to hold as a trade secret.
(df) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor No Loan Party has incorporated into any Company Subsidiary owns Proprietary Software Products any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party software that is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, available under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property an open-source software license (collectively, the “ImprovementsOpen Source Software”), including those pertaining any version of any software licensed pursuant to health any GNU public license, in a manner that, with respect to software that such Loan Party intends to maintain as proprietary and safetydeems material to the value of the Proprietary Software Product, zoning, building, and construction requirements and would (i) require disclosure or distribution of such Proprietary Software Product in source code form; (ii) require the disabled. Neither licensing of such Proprietary Software Product for the Company nor any Company Subsidiary has made purpose of making derivative works thereof; or (iii) impose any material alterations, additions, or Improvements to any of restriction on the Leased Real Property that may be required consideration to be removed upon termination charged for the distribution of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiarysuch Proprietary Software Product.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Allscripts Healthcare Solutions, Inc.), Second Lien Term Loan Agreement (Allscripts Healthcare Solutions, Inc.)
Properties. (a) The Company Except as would not reasonably be expected to have, individually or one of in the aggregate, a Parent Material Adverse Effect, Parent and its Subsidiaries has have good and defensible title to all of the personal properties Parent Oil and assets Gas Interests reflected in the latest audited balance sheet included Parent Reserve Reports or disclosed in the Company Parent SEC Reports as being Documents and attributable to interests owned by the Company or one of Parent and its Subsidiaries, or that have been acquired after the date thereof except for such Parent Oil and that are material to the Company’s business on a consolidated basis (except properties sold Gas Interests sold, used or otherwise disposed of since the date thereof December 31, 2018 in the ordinary course of business), free and clear of all Liens other than the Parent Permitted Liens, and other than any conditions, encroachments, easements, rights-of-way, restrictions and other encumbrances that do not adversely affect the existing use of real property subject thereto by the owner (or lessee to the extent a leased property) thereof in the operation of its business. Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) each Parent Oil and Gas Lease to which Parent or any of its Subsidiaries is a party is valid and in full force and effect, subject to the limitation of such enforcement by the Remedies Exceptions, (ii) none of Parent or any of its Subsidiaries (and, to Parent’s knowledge, no third party operator) has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Parent Oil and Gas Lease, and (iii) none of Parent or any of its Subsidiaries has received written notice from the other party to any such Parent Oil and Gas Lease that Parent or any of its Subsidiaries, as the case may be, has breached, violated or defaulted under any Parent Oil and Gas Lease.
(b) Except as would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Parent Material Adverse Effect: , (i) either Parent or a Subsidiary of Parent has good and valid title to each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each real property at which operations of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company Parent or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iiiare conducted) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease owned by the Company Parent or any of its Subsidiaries or, to Subsidiary (but excluding the knowledge of the Company, any other party thereto; Parent Oil and Gas Interests) (iv) to the knowledge of the Companysuch owned property collectively, the Company “Parent Owned Real Property”) and (ii) either Parent or one a Subsidiary of its Subsidiaries that is either the tenant or licensee named under the Lease Parent has a good and valid leasehold interest in each parcel lease, sublease and other agreement under which Parent or any of its Subsidiaries uses or occupies or has the right to use or occupy any real property (or real property at which is operations of Parent or any of its Subsidiaries are conducted) (but excluding the Parent Oil and Gas Interests) (such property subject to a Lease for lease, sublease or other agreement, the full term of “Parent Leased Real Property” and such leases, subleases and other agreements are, collectively, the respective Lease “Parent Real Property Leases”), in each case, free and clear of all Liens other than any Parent Permitted Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another whollyany conditions, encroachments, easements, rights-owned subsidiary of-way, restrictions and other encumbrances that do not adversely affect the existing use of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject thereto by the owner (or lessee to the extent a Lease, except, leased property) thereof in the case operation of (ii) and (iii), its business. Except as would not reasonably be expected to have have, individually or in the aggregate, a Company Parent Material Adverse Effect, (A) each Parent Real Property Lease is valid, binding and in full force and effect, subject to the limitation of such enforcement by the Remedies Exceptions, and (B) no uncured default on the part of Parent or, if applicable, its Subsidiaries or, to the knowledge of Parent, the landlord thereunder, exists under any Parent Real Property Lease, and no event has occurred or circumstance exists which, with the giving of notice, the passage of time, or both, would constitute a breach or default under a Parent Real Property Lease.
(c) The Company has made available Except as would not reasonably be expected to Purchaser correct and complete copies of all Leaseshave, if anyindividually or in the aggregate, including any amendments thereto.
(d) Other than the real property commonly known asa Parent Material Adverse Effect, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, subleases, licenses, rights or occupancy other agreements pursuant to which affecting any third party is granted portion of the right to use the Parent Owned Real PropertyProperty or the Parent Leased Real Property that would reasonably be expected to adversely affect the existing use of such Parent Owned Real Property or the Parent Leased Real Property by Parent or its Subsidiaries in the operation of its business thereon, (iiiii) except for such arrangements solely among Parent and its Subsidiaries or among Parent’s Subsidiaries, there are no outstanding options or rights of first refusal in favor of any other party to purchase the any Parent Owned Real Property or any portion thereof or interest therein, and therein that would reasonably be expected to adversely affect the existing use of Parent Owned Real Property is not currently being offered for sale, (iv) neither by Parent in the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse operation of time or both, would constitute such a defaultits business thereon, and (viii) neither Parent nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any person the right to use or occupy a material portion of a Parent Owned Real Property or Parent Leased Real Property that would reasonably be expected to adversely affect the existing use of such Parent Owned Real Property or Parent Leased Real Property by Parent or its Subsidiaries in the operation of its business thereon.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, there is no proceeding or claim pending or, to the knowledge of CompanyParent, threatened, against appropriation, condemnation or like Action or Order affecting the Company, any Company Subsidiary, the Parent Owned Real Property or any part thereof or of any sale or other disposition of the Improvements (as defined below) Parent Owned Real Property or personal property thereonany part thereof in lieu of condemnation or other matters affecting and impairing the current use, in any court occupancy or before any Governmental Authorityvalue thereof.
(e) Neither Except as would not reasonably be expected to have, individually or in the Company nor aggregate, a Parent Material Adverse Effect, all proceeds from the sale of Hydrocarbons produced from the Parent Oil and Gas Interests are being received by Parent in a timely manner and are not being held in suspense for any Company Subsidiary has received from reason other than awaiting preparation and approval of division order title opinions for recently drilled Parent ▇▇▇▇▇ or awaiting on transfer orders for recently acquired Parent Oil and Gas Interests as of the date of this Agreement. Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) all rentals, shut-ins and similar payments owed to any Governmental Authority written notice person or individual under (or otherwise with respect to) any Parent Oil and Gas Leases have been properly and timely paid and (ii) all royalties, minimum royalties, overriding royalties and other Production Burdens with respect to any Parent Oil and Gas Interests have been timely and properly paid (other than any such Production Burdens which are being held in suspense by Parent or its Subsidiaries in accordance with applicable Law).
(f) All of any uncured violation the Parent ▇▇▇▇▇ and all water, CO2 or injection ▇▇▇▇▇ located on the Parent Oil and Gas Leases or Parent Units or otherwise associated with a Parent Oil and Gas Interest have been drilled, completed and operated within the limits permitted by the applicable Parent Oil and Gas Contracts, Parent Oil and Gas Leases and applicable Law (other than Environmental Law and those relating to Taxes), and all drilling and completion (and plugging and abandonment) of any the Parent ▇▇▇▇▇ and such other ▇▇▇▇▇ and all related development, production and other operations have been conducted in compliance with all applicable Laws pertaining except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(g) All Parent Oil and Gas Interests operated by Parent and its Subsidiaries have been operated in accordance with reasonable, prudent oil and gas field practices and in compliance with the applicable Parent Oil and Gas Leases and applicable Law (other than Environmental Law and those relating to Taxes), except where the failure to so operate would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(h) None of the Parent Oil and Gas Interests are subject to any buildingspreferential purchase, structuresconsent or similar right that would become operative as a result of the transactions contemplated by this Agreement, fixturesexcept for any such preferential purchase, and other improvementsconsent or similar rights that would not reasonably be expected to have, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included individually or in the Leased Real Property aggregate, a Parent Material Adverse Effect.
(i) None of the Parent Oil and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements Gas Interests are subject to any Tax partnership agreement or provisions requiring a partnership income Tax Return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryCode.
Appears in 2 contracts
Sources: Merger Agreement (Carrizo Oil & Gas Inc), Merger Agreement (Callon Petroleum Co)
Properties. (ai) The Each of the Company or one of and its Subsidiaries has good and marketable title to all the personal properties and assets reflected to, or in the latest audited balance sheet included in case of leased property and leased tangible assets has valid and enforceable leasehold interests in, all of the material leases, licenses or similar agreements for the use or occupancy of real property to which the Company SEC Reports as being of any of its Subsidiaries are a party (the “Company Real Property Leases”) and the parcels of real estate owned by the Company or one and its Subsidiaries as of its Subsidiaries, or that have been acquired after the date thereof and that are material to hereof (the Company’s business on a consolidated basis (except properties sold or otherwise disposed “Company Owned Properties”, together with the parcels of since real estate covered by the date thereof in Company Real Property Leases, the ordinary course of business“Company Real Properties”), free and clear of all Liens other than the Liens, except for Permitted Liens.
(bii) All improvements and buildings on the material Company Owned Properties (including the electrical, power, cooling and mechanical infrastructure) are in, in all material respects, good repair, have been maintained in accordance with prudent industry practice, and are in compliance in all material respects with building, zoning and other applicable Laws for their current use.
(iii) There are no outstanding options, rights of first refusal, rights of first offer, rights of first negotiation or similar rights for the purchase, sale or other disposition of all or any of the Company Owned Properties, or any material portion thereof or material interest therein that would reasonably be expected to materially impair the manner in which the Company and its Subsidiaries operate their businesses taken as a whole.
(iv) Except as would not, individually or in the aggregate, have had or reasonably be expected likely to have a Company Material Adverse Effect: , (iX) each lease or license pursuant to which of the Company and its Subsidiaries is in compliance in all material respects with the terms of all of the Company Subsidiaries leases or licenses any real property Real Property Leases to which it is a party and under which it is in occupancy, and (collectively, the “Leases” and Y) each such propertylease is a legal, a “Leased Real Property”) is valid and binding on agreement of the Company and each of or its Subsidiaries party thereto Subsidiary, as the case may be, and, to the knowledge of the Company, of each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by thereto, enforceable against the Company or any of its Subsidiaries orsuch Subsidiary, as the case may be, and, to the knowledge of the Company, any against the other party or parties thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, exceptcase, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effectaccordance with its terms.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Caterpillar Inc), Merger Agreement (Bucyrus International Inc)
Properties. (a) The Company Except as would not have, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, Parent or one of its the Parent Subsidiaries has good owns fee simple title to all or has a leasehold interest in each of the personal real properties and assets reflected identified as owned or leased by Parent in the latest audited balance sheet included in the Company Parent SEC Reports or otherwise that is purported to be owned or leased by Parent or a Parent Subsidiary (collectively, the “Parent Properties”). In each case, such Parent Properties are owned or leased, as being owned by the Company case may be, free and clear of Encumbrances, except for (i) liens for taxes or one of its Subsidiariesother governmental charges, assessments or that have been acquired after the date thereof and levies that are material to not yet due and payable or the Companyvalidity of which is being contested in good faith by appropriate proceedings and for which there are adequate reserves on the financial statements of Parent (if such reserves are required by GAAP), (ii) statutory landlord’s, mechanic’s, carrier’s, workmen’s, repairmen’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof other similar liens arising or incurred in the ordinary course of businessbusiness consistent with past practice that are not yet due and payable or the validity of which is being contested in good faith by appropriate proceedings and for which there are adequate reserves on the financial statements of the Company (if such reserves are required by GAAP), free or that are not otherwise material, (iii) Encumbrances disclosed in the public records or in existing title policies, the existence of which does not, and clear would not reasonably be expected to, materially impair the marketability, value or use and enjoyment of all Liens such real property, and (iv) other than Encumbrances that do not, and would not reasonably be expected to, materially impair or interfere with the Permitted Liensmarketability, value or use and enjoyment of any such real property (as such property is currently being used or, with respect to any development properties, intended to be used).
(b) Except as would notnot have, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, neither Parent nor any Parent Subsidiary has received any written notice to the effect that (i) any condemnation or rezoning proceedings are pending or threatened in writing with respect to any of Parent Properties, that would interfere in any material manner with the current use of the Parent Properties (assuming its continued use in the manner it is currently used), or otherwise impair in any material manner the operations of such Parent Properties (assuming its continued use in the manner it is currently operated), or (ii) any Laws, including any zoning regulation or ordinance, building or similar Law, code, ordinance, order or regulation has been violated (and remains in violation) for any Parent Property (other than violations of any zoning regulation or ordinance resulting from a change to such zoning regulation or ordinance which render such Parent Property legally non-conforming pursuant to such zoning regulations or ordinances), which have not been cured, contested in good faith or which violations would individually, or in the aggregate, have, or reasonably be expected to have, a Parent Material Adverse Effect.
(c) Except as would not have, and would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect, and except for any statutory rights or options to occupy or purchase any Parent Property in favor of a Governmental Authority, neither Parent nor any of the Parent Subsidiaries has granted any unexpired option agreements, rights of first offer or rights of first refusal with respect to the purchase of a Parent Property or any portion thereof or any other unexpired rights in favor of any Persons to purchase or otherwise acquire a Parent Property or any portion thereof or entered into any contract for sale or letter of intent to sell any Parent Property or any portion thereof.
(d) To Parent’s Knowledge, each of the Parent Properties has sufficient access to and from publicly dedicated streets for its current use and operation, without any constraints that interfere with the normal use, occupancy and operation thereof.
(e) With respect to any real property which, as of the date of this Agreement, is under ground-up development by Parent or any Parent Subsidiary (each, a “Parent Development Property,” and, collectively, the “Parent Development Properties”), there are no defaults under any of the Parent Development Contracts which, individually or in the aggregate, have had or would reasonably be expected to have a Company Parent Material Adverse Effect: (i) each lease . Parent or license pursuant the Parent Subsidiaries have obtained any and all material approvals, consents and authorizations to which initiate and complete the Company and the Company Subsidiaries leases contemplated development, redevelopment or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge constructions of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken Parent Development Properties as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effectcurrently contemplated.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Prologis, L.P.), Merger Agreement (DUKE REALTY LTD PARTNERSHIP/)
Properties. (a) The Except as would not reasonably be expected to have, individually or in the aggregate, a Company or one of Material Adverse Effect, the Company and its Subsidiaries has have good and defensible title to all of the personal properties Company Oil and assets Gas Interests reflected in the latest audited balance sheet included Company Reserve Reports or disclosed in the Company SEC Reports as being Documents and attributable to interests owned by the Company or one of and its Subsidiaries, or that have been acquired after the date thereof except for such Company Oil and that are material to the Company’s business on a consolidated basis (except properties sold Gas Interests sold, used or otherwise disposed of since the date thereof December 31, 2018 in the ordinary course of business), free and clear of all Liens other than the Company Permitted Liens, and other than any conditions, encroachments, easements, rights-of-way, restrictions and other encumbrances that do not adversely affect the existing use of real property subject thereto by the owner (or lessee to the extent a leased property) thereof in the operation of its business. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Oil and Gas Lease to which the Company or any of its Subsidiaries is a party is valid and in full force and effect, subject to the limitation of such enforcement by the Remedies Exceptions, (ii) none of the Company or any of its Subsidiaries (and, to the Company’s knowledge, no third party operator) has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Company Oil and Gas Lease, and (iii) none of the Company or any of its Subsidiaries has received written notice from the other party to any such Company Oil and Gas Lease that the Company or any of its Subsidiaries, as the case may be, has breached, violated or defaulted under any Company Oil and Gas Lease.
(b) Except as would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: , (i) either the Company or a Subsidiary of the Company has good and valid title to each lease real property (and each real property at which operations of the Company or license pursuant to any of its Subsidiaries are conducted) owned by the Company or any Subsidiary (but excluding the Company Oil and Gas Interests) (such owned property collectively, the “Company Owned Real Property”) and (ii) either the Company or a Subsidiary of the Company has a good and valid leasehold interest in each lease, sublease and other agreement under which the Company and or any of its Subsidiaries uses or occupies or has the Company Subsidiaries leases right to use or licenses occupy any real property (or real property at which operations of the Company or any of its Subsidiaries are conducted) (but excluding the Company Oil and Gas Interests) (such property subject to a lease, sublease or other agreement, the “Company Leased Real Property” and such leases, subleases and other agreements are, collectively, the “Company Real Property Leases” ”), in each case, free and each such clear of all Liens other than any Company Permitted Liens, and other than any conditions, encroachments, easements, rights-of-way, restrictions and other encumbrances that do not adversely affect the existing use of real property subject thereto by the owner (or lessee to the extent a leased property) thereof in the operation of its business. Except as would not reasonably be expected to have, individually or in the aggregate, a “Leased Company Material Adverse Effect, (A) each Company Real Property”) Property Lease is valid valid, binding and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease , subject to the limitation of such enforcement by the Remedies Exceptions, and (B) no uncured default on the part of the Company or any of or, if applicable, its Subsidiaries or, to the knowledge of the Company, the landlord thereunder, exists under any other party thereto; (iii) Company Real Property Lease, and no event has occurred that or circumstance exists which, with or without the lapse of time or the giving of notice notice, the passage of time, or both both, would constitute a breach or default under any Lease by the a Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; Real Property Lease.
(ivc) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), Except as would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, subleases, licenses, rights or occupancy other agreements pursuant to which affecting any third party is granted portion of the right to use the Company Owned Real PropertyProperty or the Company Leased Real Property that would reasonably be expected to adversely affect the existing use of such Company Owned Real Property or the Company Leased Real Property by the Company or its Subsidiaries in the operation of its business thereon, (iiiii) except for such arrangements solely among the Company and its Subsidiaries or among the Company’s Subsidiaries, there are no outstanding options or rights of first refusal in favor of any other party to purchase the any Company Owned Real Property or any portion thereof or interest therein, and therein that would reasonably be expected to adversely affect the existing use of the Company Owned Real Property is not currently being offered for saleby the Company in the operation of its business thereon, and (iviii) neither the Company nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any person the right to use or occupy a material portion of a Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real PropertyProperty or Company Leased Real Property that would reasonably be expected to adversely affect the existing use of such Company Owned Real Property or Company Leased Real Property by the Company or its Subsidiaries in the operation of its business thereon.
(d) Except as would not reasonably be expected to have, and no event has occurred thatindividually or in the aggregate, after notice or the lapse of time or botha Company Material Adverse Effect, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of the Company, threatened, against appropriation, condemnation or like Action or Order affecting the Company, any Company Subsidiary, the Owned Real Property or any part thereof or of any sale or other disposition of the Improvements (as defined below) Company Owned Real Property or personal property thereonany part thereof in lieu of condemnation or other matters affecting and impairing the current use, in any court occupancy or before any Governmental Authorityvalue thereof.
(e) Neither Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, all proceeds from the sale of Hydrocarbons produced from the Company nor Oil and Gas Interests are being received by the Company in a timely manner and are not being held in suspense for any reason other than awaiting preparation and approval of division order title opinions for recently drilled Company ▇▇▇▇▇ or awaiting on transfer orders for recently acquired Company Oil and Gas Interests as of the date of this Agreement. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) all rentals, shut-ins and similar payments owed to any person or individual under (or otherwise with respect to) any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining Oil and Gas Leases have been properly and timely paid and (ii) all royalties, minimum royalties, overriding royalties and other Production Burdens with respect to any buildings, structures, fixtures, Company Oil and Gas Interests have been timely and properly paid (other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included than any such Production Burdens which are being held in the Leased Real Property and the Owned Real Property suspense by Company or its Subsidiaries in accordance with applicable Law).
(collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge f) All of the Company ▇▇▇▇▇ and all water, CO2 or injection ▇▇▇▇▇ located on the Company Oil and Gas Leases or Company Units or otherwise associated with a Company Oil and Gas Interest have been drilled, completed and operated within the limits permitted by the applicable Company Oil and Gas Contracts, Company Oil and Gas Leases and applicable Law (without a duty of investigation or inquiryother than Environmental Law and those relating to Taxes), threatenedand all drilling and completion (and plugging and abandonment) of the Company ▇▇▇▇▇ and such other ▇▇▇▇▇ and all related development, eminent domain production and other operations have been conducted in compliance with all applicable Laws except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(g) All Company Oil and Gas Interests operated by the Company and its Subsidiaries have been operated in accordance with reasonable, prudent oil and gas field practices and in compliance with the applicable Company Oil and Gas Leases and applicable Law (other public acquisition proceeding than Environmental Law and those relating to Taxes), except where the failure to so operate would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(h) None of the Company Oil and Gas Interests are subject to any preferential purchase, consent or similar right that would become operative as a result of the transactions contemplated by this Agreement, except for any such preferential purchase, consent or similar rights that would not reasonably be expected to have, individually or in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct aggregate, a Company Material Adverse Effect.
(i) None of the business Company Oil and Gas Interests are subject to any Tax partnership agreement or provisions requiring a partnership income Tax Return to be filed under Subchapter K of any Company or any Company SubsidiaryChapter 1 of Subtitle A of the Code.
Appears in 2 contracts
Sources: Merger Agreement (Carrizo Oil & Gas Inc), Merger Agreement (Callon Petroleum Co)
Properties. (a) The Company or one of its the Company Subsidiaries has good owns fee simple title to all each of the personal real properties and assets reflected identified in the latest audited balance sheet included in Section 3.11(a) of the Company SEC Reports as being Disclosure Schedule (individually a “Company Property” and collectively the “Company Properties”), which are all of the real estate properties owned by the Company them or one in which any of its Subsidiaries, them own a direct or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liensindirect equity interest.
(b) Except Section 3.11(b) of the Company Disclosure Schedule sets forth a complete and accurate list of all real property leased (including ground leased) or subleased by the Company or any Company Subsidiary as tenant (collectively, the “Leased Properties”), and the address of the premises leased thereunder. Complete and correct copies of all leases and other agreements pursuant to which each Leased Property is demised to the Company or any Company Subsidiary, including all amendments or modifications thereof and all side letters or other instruments materially affecting the obligations of any party thereunder (collectively the “Leases”), have been made available to the Purchaser Parties to the extent that such leases and other agreements are in the Company’s possession or control, except for omissions that would not, individually or in the aggregate, have had or be reasonably be expected likely to have a Company Material Adverse Effect: . As used in this Agreement, the phrase “made available to the Purchaser Parties” with respect to documents relating to the Company means documents that are either (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding posted on the Company and each Company’s due diligence data site for this transaction as of its Subsidiaries party thereto and, the date prior to the knowledge date hereof, or (ii) made available for review at the Company’s offices as of the Company, each other party thereto and date prior to the date hereof. Each Lease is in full force and effect; (ii) there effect and is no breach valid, binding and enforceable in accordance with its terms against the lessee thereunder, and, to the Company’s knowledge, against the lessor and/or the other parties thereto, except as would not constitute, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any of the Company Subsidiaries, nor to the Company’s knowledge, any lessor, is in monetary default or other material default under any Lease by the Company (beyond any applicable notice and cure period), except for such defaults that would not, individually or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii)aggregate, as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to the Purchaser correct and complete copies Parties (i) all policies of all Leases, if any, including any amendments thereto.
(d) Other than title insurance obtained by the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary insuring title to any of the Company Properties, to the extent that such title insurance policies are in the possession or control of the Company or a Company Subsidiary, and (ii) all existing surveys of the Company Properties in the Company’s or the applicable Company Subsidiaries’ possession or control. Except as listed in Schedule 3.11(c) to the Company Disclosure Schedule, such title policies for the Company Properties do not contain exceptions or encumbrances and such surveys do not reveal encroachments or other defects other than (A) Permitted Liens, and (B) such other exceptions, encumbrances, title defects and other title matters which would, individually or in the aggregate, not be reasonably likely to have a Company Material Adverse Effect. To the knowledge of the Company, no material claim has been made against any of such title policies and each such title policy is in full force and effect as of the date hereof and will be in effect as of the Closing Date. As used herein, the term “Permitted Liens” means (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any LiensLiens for Taxes not yet due or delinquent, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Propertyinchoate mechanics’ and materialmen’s Liens for construction in progress, (iii) there are no outstanding options mechanics’, materialmen’s, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for saleCompany Subsidiaries, (iv) neither zoning restrictions, survey exceptions, utility easements, rights of way and similar Liens that are imposed by any Governmental Entity having jurisdiction or otherwise are typical for the applicable property type and locality, (v) any title exception or other Lien disclosed in any title insurance policy or legible survey for the Company nor Properties made available to the Purchaser Parties, (vi) Liens and obligations arising under or in connection with the Material Contracts, (vii) any Lien securing mortgage debt disclosed in the Company Disclosure Schedule, (viii) rights of tenants in possession, or under any Company Subsidiary is Leases, (ix) Liens being contested in default, or has ever been good faith in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse ordinary course of time or both, would constitute such a defaultbusiness, and (vx) there is no proceeding or claim pending or, to any other Lien that does not materially interfere with the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term current use of the applicable Lease. Neither property or materially adversely affect the Company nor any Company Subsidiary has received written notice value of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiarysuch property.
Appears in 2 contracts
Sources: Merger Agreement (American Financial Realty Trust), Merger Agreement (Gramercy Capital Corp)
Properties. (a) The Company or one Each of its Holdings, the Borrower and the Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiariesto, or that have been acquired after the date thereof valid leasehold interests in, all its real and that are personal property material to its business (including the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of businessMortgaged Properties), free except for Permitted Encumbrances, Liens permitted under Section 6.02 and clear of all Liens other than minor defects in title that do not interfere with its ability to conduct its business as currently conducted or as proposed to be conducted or to utilize such properties for their intended purposes except to the Permitted Liensextent such interference could not reasonably be expected to result in a Material Adverse Effect.
(b) Except Each of Holdings, the Borrower and the Subsidiaries owns, or licenses pursuant to a valid and enforceable written agreement, all Intellectual Property and Software necessary for and material to the operation and conduct of their businesses as would notcurrently conducted. To the knowledge of Holdings and the Borrower, individually the operation and conduct of the businesses of Holdings, the Borrower and the Subsidiaries (including the use or in the aggregatepractice of any Intellectual Property and Software therein) does not infringe, have had misappropriate or dilute any Intellectual Property owned by any other Person except as could not reasonably be expected to have result in a Company Material Adverse Effect: (i) each lease . As of the Effective Date, no other Person has contested in writing any right, title or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectivelyinterest of Holdings, the “Leases” and each such propertyBorrower or any Subsidiary in or relating to any material Intellectual Property or Software or challenged in writing the ownership, use, validity or enforceability of any material Intellectual Property owned by Holdings, the Borrower or any Subsidiary (including the use, validity or enforceability of any licenses to any Intellectual Property held by Holdings, the Borrower or any Subsidiary) except as could not reasonably be expected to result in a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge Material Adverse Effect. As of the CompanyEffective Date, each other party thereto and is in full force and effect; there are no pending (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of Holdings and the CompanyBorrower, threatened) actions, investigations, suits, proceedings or orders with respect to any such infringement, misappropriation or dilution or any other party thereto; (iii) no event has occurred that with violation, impairment, contest or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, challenge in writing relating to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken Intellectual Property except as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would could not reasonably be expected to have result in a Company Material Adverse Effect. As of the date hereof, no judgment or order regarding any such infringement, misappropriation, dilution, violation, impairment, contest or challenge has been rendered by any competent Governmental Authority, no settlement agreement or similar contract has been entered into by Holdings, the Borrower or any Subsidiary with respect to any such infringement, misappropriation, dilution, violation, impairment, contest or challenge wherein such settlement agreement or similar contract could result in a Material Adverse Effect, and none of Holdings, the Borrower or any Subsidiary has any reason to know of any valid basis for any claim for or based on any such infringement, misappropriation, dilution, violation, impairment, contest or challenge except as could not reasonably be expected to result in a Material Adverse Effect. To the knowledge of Holdings and the Borrower, no Person has been or is infringing, misappropriating, diluting, violating or otherwise impairing any Intellectual Property of Holdings, the Borrower or any Subsidiary except as could not reasonably be expected to result in a Material Adverse Effect.
(c) The Company has made available Schedule 3.05(c) sets forth the address of each real property that is owned or leased by the Borrower or any Subsidiary as of the Effective Date after giving effect to Purchaser correct and complete copies of all Leases, if any, including any amendments theretothe Transactions.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all As of the Owned Real PropertyEffective Date, free and clear none of Holdings, the Borrower or any Liens, (ii) there are no leases, licensesSubsidiary has received notice of, or occupancy agreements pursuant to which has knowledge of, any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options pending or rights of first refusal to purchase the Owned Real contemplated condemnation proceeding affecting any Mortgaged Property or any portion sale or disposition thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse lieu of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, condemnation that could reasonably be likely to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiarya Material Adverse Effect.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (RedPrairie Holding, Inc.), Credit Agreement (RedPrairie Holding, Inc.)
Properties. (a) The Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or one of its Subsidiaries has good and valid title to to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all the personal of its material real properties and tangible assets reflected in (except for any of the latest audited balance sheet included in the Company SEC Reports as being owned by the Company Company’s or one any of its Subsidiaries’ Oil and Gas Properties, or that have been acquired after the date thereof and that which are material subject to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of businessSection 3.25), free and clear of all Liens other than the Permitted Liens or Liens.
(b) Except as , defects or imperfections, which do not and would notnot reasonably be expected to, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant materially impair the continued use and operation of the real properties to which they relate in the Company and conduct of the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on business of the Company and each of its Subsidiaries party thereto andas presently conducted. Except as has not had and would not reasonably be expected to have, to individually or in the knowledge aggregate, a Company Material Adverse Effect, the tangible personal property currently used in the operation of the Companybusiness of the Company and its Subsidiaries is in good working order (reasonable wear and tear excepted).
(b) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, each other party thereto and is all such leases are in full force and effect; (ii) there is no breach , except for any such noncompliance or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported failure to be leased in full force and effect that, individually or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) aggregate, has not had and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Section 3.18(c) of the Company has made available to Purchaser correct Disclosure Letter sets forth a true and complete copies list of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good all material real property owned by Company or any of its Subsidiaries (other than Oil and indefeasible fee simple title to all of the Owned Real Property, free Gas Properties) and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted all material real property leased for the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge benefit of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder its Subsidiaries (other than Oil and Gas Properties). This Section 3.18 does not relate to intellectual property, which is the continued use and enjoyment subject of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiarySection 3.19.
Appears in 2 contracts
Sources: Merger Agreement (Civitas Resources, Inc.), Merger Agreement (SM Energy Co)
Properties. (a) The Company or one Each of its the Borrower and each of the Subsidiaries has good and insurable fee simple title to, or valid leasehold interests in, or easements or other limited property interests in, all its real properties (including any Mortgaged Properties) and has good and marketable title to all the its personal property and assets, in each case, except for defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets reflected in for their intended purposes and except where the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that failure to have been acquired after the date thereof and that are material such title would not reasonably be expected to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would nothave, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company . All such properties and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease assets are free and clear of any Liens; and , other than Liens permitted by Section 6.02.
(vb) the Company and Company Subsidiaries are in possession Each of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, Borrower and have not entered into with any other person (other than another wholly-owned subsidiary each of the Company) any subleaseSubsidiaries has complied with all obligations under all leases to which it is a party, license or other agreement that is material except where the failure to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as comply would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect, and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each of the Borrower and each of the Subsidiaries enjoys peaceful and undisturbed possession under all such leases, other than leases in respect of which the failure to enjoy peaceful and undisturbed possession would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all Each of the Owned Real Property, free Borrower and clear of any Liens, (ii) there are no leases, licensesthe Subsidiaries owns or possesses, or occupancy agreements is licensed to use, all patents, trademarks, service marks, trade names and copyrights and all licenses and rights with respect to the foregoing, necessary for the present conduct of its business, without any conflict with the rights of others, and free from any burdensome restrictions on the present conduct of its business, except where such failure to own, possess or hold pursuant to which any third party is granted the right a license or such conflicts and restrictions would not reasonably be expected to use the Owned Real Propertyhave, (iii) there are no outstanding options individually or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectivelyaggregate, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryMaterial Adverse Effect.
Appears in 2 contracts
Sources: Abl Credit Agreement (Petco Holdings Inc), Term Loan Credit Agreement (Petco Holdings Inc)
Properties. (a) The Company Except in respects that, individually or one of its Subsidiaries in the aggregate, have not had and would not reasonably be expected to have a Deltic Material Adverse Effect, Deltic or a Deltic Subsidiary has good and valid title to all to, and marketable and insurable fee simple interest in or a valid leasehold interest in, each of the personal real properties and assets reflected in as an asset on the latest audited most recent balance sheet of Deltic included in the Company SEC Reports as being owned by the Company or one of its SubsidiariesDeltic Reporting Documents (each, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business“Deltic Property”), in each case free and clear of all conditions, encroachments, easements, rights of way, restrictions and Liens, except for conditions, encroachments, easements, rights of way, restrictions or Liens other than the Permitted Liens.
(b) Except as would which do not, individually or in the aggregate, have had or materially impair and would not reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant materially impair the continued use and operation of the real properties to which they relate in the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” conduct of Deltic and each such propertyDeltic Subsidiary as presently conducted. Except for matters that, a “Leased Real Property”) is valid and binding on individually or in the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunderaggregate, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, had and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Deltic Material Adverse Effect, neither Deltic nor any Deltic Subsidiary has received notice to the effect that there are any condemnation, expropriation or other proceedings that are pending or, to the Knowledge of Deltic, threatened with respect to any material portion of any of the Deltic Properties. Except for the owners of the properties in which Deltic or a Deltic Subsidiary has a leasehold interest and except as, individually or in the aggregate, have not had and would not reasonably be expected to have a Deltic Material Adverse Effect, no Person other than Deltic or a Deltic Subsidiary has any ownership interest in any of the Deltic Properties, except to the extent that such interest would not be reasonably expected to adversely impact Deltic’s or the Deltic Subsidiary’s continued use of the applicable Deltic Property consistent with its operation as of the date of this Agreement.
(cb) The Company has made available Except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to Purchaser correct and complete copies of all Leaseshave a Deltic Material Adverse Effect, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) neither Deltic nor any Deltic Subsidiary has good and indefeasible fee simple title leased or otherwise granted to all of any Person the Owned Real Property, free and clear of right to use or occupy any LiensDeltic Property or any portion thereof, (ii) there are no leasesoutstanding options, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options rights of first offer or rights of first refusal to purchase the any Deltic Property owned by Deltic or any Deltic Subsidiary (an “Owned Real Property Deltic Property”) or any portion thereof or interest therein, (iii) there are no boundary disputes relating to any Owned Deltic Property and no encroachments materially and adversely affecting the use of any Owned Real Deltic Property is not currently being offered for sale, and (iv) neither with respect to each Owned Deltic Property, all material buildings, structures, fixtures and improvements are in all respects adequate and sufficient and in satisfactory condition to support the Company nor any Company operations of Deltic and each Deltic Subsidiary is as presently conducted to the extent related to such Owned Deltic Property.
(c) Except in defaultrespects that, individually or has ever in the aggregate, have not had and would not reasonably be expected to have a Deltic Material Adverse Effect, (i) policies of title insurance or updates or endorsements have been in defaultissued, under any restrictive covenants affecting insuring Deltic’s or the applicable Deltic Subsidiary’s fee simple title to each of the Owned Real PropertyDeltic Properties that is a manufacturing or similar facility, and no event in amounts at least equal to the purchase price paid for ownership of such Deltic Property or such entity that owned such Deltic Property at the time of the issuance of each such policy, (ii) there has occurred that, after notice or the lapse of time or both, would constitute not been any claim made against any such a default, policy that has not been resolved and (viii) there is no suit, action or other proceeding or claim pending or, to the knowledge Knowledge of CompanyDeltic, threatened, threatened against or affecting Deltic or any Deltic Subsidiary challenging Deltic’s or the Company, any Company applicable Deltic Subsidiary, ’s fee simple title to each of the Owned Real Property Deltic Properties.
(d) Each of Deltic and each Deltic Subsidiary has complied with the terms of all leases pursuant to which Deltic or a Deltic Subsidiary has a leasehold interest in the Improvements (as defined below) Deltic Properties, and all such leases are in full force and effect, except for such noncompliance or personal property thereonfailure to be in full force and effect that, individually or in any court or before any Governmental Authoritythe aggregate, has not had and would not reasonably be expected to have a Deltic Material Adverse Effect.
(e) Neither Except in respects that, individually or in the Company aggregate, have not had and would not reasonably be expected to have a Deltic Material Adverse Effect, neither Deltic nor any Company Deltic Subsidiary has received from taken any Governmental Authority written notice action which would disqualify portions of any uncured violation Deltic Property now assessed for ad valorem Taxes on the basis of any applicable Laws pertaining to any buildingsfarm, structuresforest or open space for continued assessment as farm, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, forest or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryopen space lands.
Appears in 2 contracts
Sources: Merger Agreement (Deltic Timber Corp), Merger Agreement (Potlatch Corp)
Properties. (a) The Company SOR has made available to SOR II a list of each parcel of real property currently owned or one ground leased by SOR or any SOR Subsidiary, together with the applicable SOR Subsidiary owning or leasing such property. Except as set forth in Section 5.10 of its Subsidiaries has good the SOR Disclosure Letter or as disclosed in title insurance policies and reports (and the documents or surveys referenced in such policies and reports): (A) SOR or a SOR Subsidiary owns fee simple title to all each of the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)SOR Properties, free and clear of all Liens other than the Liens, except for Permitted Liens.
; (bB) Except except as has not had and would not, individually or in the aggregate, have a SOR Material Adverse Effect, neither SOR nor any SOR Subsidiary has received written notice of any violation of any Law affecting any portion of any of the SOR Properties issued by any Governmental Authority; and (C) except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company SOR Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses , neither SOR nor any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, SOR Subsidiary has received notice to the knowledge effect that there are (1) condemnation or rezoning proceedings that are pending or threatened with respect to any of the CompanySOR Properties or (2) zoning, each other party thereto and is in full force and effect; (ii) there is no breach building or default under any Lease similar Laws, codes, ordinances, orders or regulations that are or will be violated by the Company continued maintenance, operation or use of any buildings or other improvements on any of its Subsidiaries orthe SOR Properties or by the continued maintenance, to the knowledge operation or use of the Companyparking areas.
(b) SOR has not received written notice of, nor does SOR have any Knowledge of, any other party thereto; (iii) no event has occurred that with material latent defects or without adverse physical conditions affecting any of the lapse of time SOR Properties or the giving of notice improvements thereon, except as would not, individually or both would constitute a breach or default under any Lease by in the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunderaggregate, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company SOR Material Adverse Effect.
(c) The Company has made available SOR and the SOR Subsidiaries have good title to, or a valid and enforceable leasehold interest in, all personal assets owned, used or held for use by them. Neither SOR’s nor the SOR Subsidiaries’ ownership of any such personal property is subject to Purchaser correct and complete copies of all Leasesany Liens, if any, including any amendments theretoother than Permitted Liens.
(d) Other than A policy of title insurance has been issued for each SOR Property insuring, as of the real property commonly known aseffective date of such insurance policy, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company i)(A) fee simple title interest held by SOR or the applicable Company SOR Subsidiary with respect to SOR Properties that are not subject to ground leases and (iB) has good a valid leasehold estate held by SOR or the applicable SOR Subsidiary that are subject to ground leases and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there to the Knowledge of SOR, such insurance policies are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, in full force and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Propertyeffect, and no event material claim has occurred that, after notice or the lapse of time or both, would constitute been made against any such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (policy that remains outstanding as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination date of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryhereof.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Oak Strategic Opportunity REIT II, Inc.), Merger Agreement (Pacific Oak Strategic Opportunity REIT, Inc.)
Properties. (a) The Company or one From and after the Funding Date, each of its the Borrower and the Restricted Subsidiaries has good title to, or valid leasehold interests in, or easements or other limited property interests in, or is licensed to use, all the its real and personal properties and assets reflected property material to its business (including all Mortgaged Properties), except for defects in the latest audited balance sheet included in foregoing that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes and except where the Company SEC Reports as being owned by the Company failure to have such title or one of its Subsidiaries, or that have been acquired after the date thereof and that are material other ownership rights would not reasonably be expected to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would nothave, individually or in the aggregate, have had or a Material Adverse Effect. From and after the Funding Date, all such material properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of the Borrower and the Restricted Subsidiaries has complied with all obligations under all leases to which it is a party, except where the failure to comply would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company , and the Company Subsidiaries all such leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is are in full force and effect; (ii) there is no breach or default under any Lease by , except leases in respect of which the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported failure to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, in full force and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as effect would not reasonably be expected to have a Company Material Adverse Effect. Each of the Borrower and the Restricted Subsidiaries enjoys peaceful and undisturbed possession under all such leases, other than leases in respect of which the failure to enjoy peaceful and undisturbed possession would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) The Company As of the Effective Date, neither the Borrower nor any of the Restricted Subsidiaries has made available to Purchaser correct and complete copies received any written notice of, nor has any knowledge of, any pending or contemplated condemnation proceeding for any material portion of all Leases, if any, including the Mortgaged Properties or any amendments theretosale or disposition thereof in lieu of condemnation.
(d) Other than As of the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”)Effective Date, neither the Company Borrower nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real PropertyRestricted Subsidiaries is obligated under any right of first refusal, free and clear option or other contractual right to sell, assign or otherwise dispose of any Liens, Mortgaged Property or any interest therein.
(iie) there are no leases, licensesEach of the Borrower and the Restricted Subsidiaries owns, or occupancy agreements pursuant is licensed or otherwise has the right to which any third party is granted use, or could obtain ownership or possession of, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, except for those the failure to own, possess, license or have the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal which would not reasonably be expected to purchase the Owned Real Property or any portion thereof or interest thereinresult in a Material Adverse Effect, and the Owned Real Property is not currently being offered for sale, (iv) neither use thereof by the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting Borrower and the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending orRestricted Subsidiaries does not, to the knowledge of Companyany Responsible Officer of the Borrower, threatenedinfringe upon the rights of any other Person, against except for any such infringements that, individually or in the Companyaggregate, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, would not reasonably be expected to result in any court or before any Governmental Authoritya Material Adverse Effect.
(ef) Neither Schedule 3.05(f) lists completely and correctly as of the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including Effective Date all real property owned in fee by the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in Borrower or the Leased Real Property Restricted Subsidiaries (and the Owned Real Property addresses thereof) that are material to their business.
(collectively, g) Schedule 3.05(g) lists completely and correctly as of the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements Effective Date all real property leased by the Borrower or the Restricted Subsidiaries (and the disabled. Neither the Company nor any Company Subsidiary has made any addresses thereof) that are material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiarytheir business.
Appears in 2 contracts
Sources: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Properties. (a) The Company Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, Parent, Merger Sub or one of its the Parent Subsidiaries has good owns fee simple title to or has a leasehold interest in or an equivalent contractual right to conduct all or a portion of Parent’s business upon, each of the personal real properties and assets reflected identified as owned by Parent in the latest audited balance sheet included in the Company Parent SEC Reports (collectively, the “Parent Properties”). In each case, such Parent Properties are owned or leased, as being owned by the Company case may be, free and clear of Encumbrances, except for (i) liens for taxes or one of its Subsidiariesother governmental charges, assessments or that have been acquired after the date thereof and levies that are material to not yet due and payable or the Companyvalidity of which is being contested in good faith by appropriate proceedings and for which there are adequate reserves on the financial statements of Parent (if such reserves are required by GAAP), (ii) statutory landlord’s, mechanic’s, carrier’s, workmen’s, repairmen’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof other similar liens arising or incurred in the ordinary course of businessbusiness consistent with past practice that are not yet due and payable or the validity of which is being contested in good faith by appropriate proceedings and for which there are adequate reserves on the financial statements of the Company (if such reserves are required by GAAP), free or that are not otherwise material, (iii) Encumbrances disclosed in the public records or in existing title policies, the existence of which does not, and clear would not reasonably be expected to, materially impair the marketability, value or use and enjoyment of all Liens such real property, and (iv) other than Encumbrances that do not, and would not reasonably be expected to, materially impair or interfere with the Permitted Liensmarketability, value or use and enjoyment of any such real property (as such property is currently being used or, with respect to any development properties, intended to be used).
(b) Except as would notnot have, or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, neither Parent, Merger Sub nor any Parent Subsidiary has received any written notice to the effect that (i) any condemnation or rezoning proceedings are pending or threatened in writing with respect to any of Parent Properties, that would interfere in any material manner with the current use of the Parent Properties (assuming its continued use in the manner it is currently used), or otherwise impair in any material manner the operations of such Parent Properties (assuming its continued use in the manner it is currently operated), or (ii) any Laws, including any zoning regulation or ordinance, building or similar Law, code, ordinance, order or regulation has been violated (and remains in violation) for any Parent Property (other than violations of any zoning regulation or ordinance resulting from a change to such zoning regulation or ordinance which render such Parent Property legally non-conforming pursuant to such zoning regulations or ordinances), which have had not been cured, contested in good faith or which violations would individually, or in the aggregate, have, or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such propertyhave, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Parent Material Adverse Effect.
(c) The Company has made available Except as would not have, or would not be reasonably expected to Purchaser correct have, individually or in the aggregate, a Parent Material Adverse Effect, and complete copies except for any statutory rights or options to occupy or purchase any Parent Property in favor of all Leasesa Governmental Authority, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”)or mineral or subsurface rights granted to or retained by another, neither the Company Parent nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real PropertyParent Subsidiaries has granted any unexpired option agreements, free and clear rights of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options first offer or rights of first refusal with respect to the purchase the Owned Real of a Parent Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is other unexpired rights in default, favor of any Persons to purchase or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such otherwise acquire a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Parent Property or any portion thereof or entered into any contract for sale or letter of intent to sell any Parent Property or any portion thereof.
(d) To the Improvements (as defined below) or personal property thereonParent’s Knowledge, in each of the Parent Properties has sufficient access to and from publicly dedicated streets for its current use and operation, without any court or before any Governmental Authorityconstraints that interfere with the normal use, occupancy and operation thereof.
(e) Neither Except as would not have, or would not reasonably be expected to have, individually or in the Company nor aggregate, a Parent Material Adverse Effect, (i) there are no boundary disputes relating to any Company Subsidiary has received from any Governmental Authority written notice Parent Properties and no encroachments materially and adversely affecting the use of any uncured violation of any applicable Laws pertaining Parent Properties and (ii) with respect to any each Parent Property, all material buildings, structures, fixtures, fixtures and other improvements, including improvements are in all respects adequate and sufficient and in satisfactory condition to support the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any operations of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Parent and each Parent Subsidiary has received written notice of any existing, proposed, or, as presently conducted to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryextent related to such Parent Property.
Appears in 2 contracts
Sources: Merger Agreement (CatchMark Timber Trust, Inc.), Merger Agreement (Potlatchdeltic Corp)
Properties. (a) The Company or one Each of the Obligors and its Subsidiaries has good and marketable title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiariesto, or that have been acquired after the date thereof valid leasehold interests in or rights to use, all its real and that are tangible personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes and except where the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as failure to have such title would notnot reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Such properties and assets are free and clear of Liens (other than Liens permitted by Section 6.02).
(b) Each of the Obligors and its Subsidiaries owns or is licensed to use or otherwise has the rights to use, all trademarks, trade names, service marks. copyrights, patents, designs, software, internet domain names, trade secrets, know-how and other intellectual property rights, including any registrations and applications for registration of, and all goodwill associated with, the foregoing (“Intellectual Property Rights”), reasonably necessary for the conduct of their respective businesses as currently conducted, except to the extent such failure to own or be licensed or otherwise have had the rights to use any such Intellectual Property Rights, individually or in the aggregate, would not reasonably be expected to have result in a Company Material Adverse Effect. Except as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the CompanyObligors, each the use of such Intellectual Property as described in the first sentence of this clause (b) by the Obligors and their respective Subsidiaries and the operation of the respective businesses of the Obligors and their respective Subsidiaries as currently conducted does not infringe upon, misappropriate or otherwise violate the Intellectual Property Rights of any other party thereto Person and is in full force and effect; (ii) there is no breach such claims or default under any Lease by the Company or any of its Subsidiaries litigations are pending or, to the knowledge of the CompanyObligors, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest threatened in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effectwriting.
(c) The Company has made available to Purchaser correct As of the Amendment No. 4 Effective Date, Section 5.10 of the Borrower Disclosure Letter contains a true, accurate and complete copies list of all Leases, if any, including any amendments theretoMaterial Real Estate Assets.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Properties. None of the Company nor any of its Subsidiaries own any real property. The Company and its Subsidiaries (a) The Company or one of its Subsidiaries has have valid and good title to all the personal properties and assets reflected to, or in the latest audited balance sheet included case of leased property and personal property have valid, binding and enforceable in accordance with its terms (subject to the Company SEC Reports as being owned Enforceability Exceptions) leasehold interests in, all Leased Real Property and all items of material personal property used by the Company or one of its SubsidiariesSubsidiaries (other than Intellectual Property Rights), or except, in each case, for assets that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in Latest Balance Sheet Date or where the ordinary course of business)failure to have such good title or valid, free binding and clear of all Liens other than the Permitted Liens.
(b) Except as would notenforceable leasehold interests, individually or in the aggregate, have had or has not been and would not reasonably be expected to have be material to the Company and its Subsidiaries, taken as a whole, and (b) are not subject to any contractual restriction with respect to any items of material personal property, except for restrictions that, if violated and enforced, individually or in the aggregate, has not been and would not reasonably be expected to be material to the Company Material Adverse Effect: (i) each lease and its Subsidiaries, taken as a whole. All required deposits, rent and other sums, material obligations and charges payable or license pursuant to be performed by the Company or any of its Subsidiaries, as tenant under any of the real property leases, licenses, subleases and occupancy agreements to which the Company or such Subsidiaries are a party, are current in all material respects. Schedule 4.12 contains the address and a true and complete list as of the date hereof of all real property leases, licenses, subleases and occupancy agreements, together with any amendments, extensions, renewals and other agreements thereto (the “Real Property Leases”), with respect to all real property leases, licensed, subleased or otherwise used or occupied by the Company or any of its Subsidiaries leases or licenses any real property as of the date hereof (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on ). None of such Real Property Leases have been modified as of the Company and each of its Subsidiaries party thereto anddate hereof in any material respect, except to the knowledge extent that such modifications are disclosed by the copies delivered or made available to the Parent prior to the date of this Agreement. The Company has made available to the CompanyParent true, each other party thereto complete and is correct copies of all Real Property Leases. The Real Property Leases are in full force and effect; (ii) , and there is no breach material breach, violation or default (nor does there exist any condition, which with the passage of time or the giving of notice or both, would cause such a material breach, violation or default, or permit the termination, modification or acceleration of rent under any Lease such Real Property Lease) by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default thereto under any of the Real Property Leases. Since May 16, 2016, neither the Company’s nor any of its Subsidiaries’ possession or quiet enjoyment of the Leased Real Property has been disturbed, and to the Company’s knowledge, there are no disputes with respect to any Real Property Lease. Neither the Company nor any of its Subsidiaries have collaterally assigned or granted any other security interest in any Real Property Lease or any interest therein. Except as set forth on Schedule 4.12, neither the Company nor any of its Subsidiaries have subleased, licensed or otherwise granted any Person the right to use or occupy any Leased Real Property or any portion thereof. The Leased Real Property identified in Schedule 4.12 comprises all of the real property used or intended to be used in, or otherwise related to, the business of the Company and its Subsidiaries. The Leased Real Property is adequate to permit the use thereof in the manner that it is currently utilized by the Company and its Subsidiaries. No material personal property of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease any Liens except for the full term of the respective Lease free and clear of any Permitted Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Transaction Agreement (Fortive Corp), Transaction Agreement
Properties. (a) The Company Except as disclosed or one of its Subsidiaries has good title to all the personal properties and assets reflected reserved against in the latest audited balance sheet included Lanxide Financial Statements, the Lanxide Companies have good, valid and, in the Company SEC Reports as being owned by the Company or one case of its Subsidiariesreal property, marketable title to, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)valid leasehold interest in, free and clear of all Liens material liens, encumbrances, charges, defaults, or equities of whatever character, all of the material properties and assets, tangible or intangible, reflected in the Lanxide Financial Statements as being owned by the Lanxide Companies as of the date hereof, except for such title or interest the failure of which would not have, individually or in the aggregate, a Material Adverse Effect on Lanxide. To the best knowledge of Lanxide's management, all buildings, and all fixtures, equipment, and other than property and assets held under leases or subleases by any of the Permitted Liens.
Lanxide Companies, are held under valid instruments which are in full force and effect (bexcept as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other laws affecting the enforcement of creditors' rights generally and except that the availability of the equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceedings may be brought) Except as and each of the Lanxide Companies has complied with the terms of all such leases or subleases to which it is a party and under which it is in occupancy, except for failure to comply or be in full force and effect which would notnot reasonably be expected to, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease Effect on Lanxide. To the best knowledge of Lanxide's management, the policies of fire, theft, liability, and other insurance maintained with respect to the assets or license pursuant to which businesses of the Company Lanxide Companies provide adequate coverage against loss, and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is fidelity bonds in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken effect as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required Lanxide Companies is a named insured are believed to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiarysufficient.
Appears in 2 contracts
Sources: Merger Agreement (Commodore Environmental Services Inc /De/), Merger Agreement (Lanxide Corp)
Properties. (a) The Company or one of its Subsidiaries and each Company Subsidiary has good and valid title to to, or good and valid leasehold interests in, all the personal their respective properties and assets reflected (the “Company Properties”) except in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notrespects that, individually or in the aggregate, have not had or and would not reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant . The Company Properties are, in all respects, adequate and sufficient, and in satisfactory condition, to which support the operations of the Company and the Company Subsidiaries leases as presently conducted, except in respects that, individually or licenses any real property (collectivelyin the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. All of the Company Properties are free and clear of all Liens, except for Liens on material Company Properties that, individually or in the aggregate, do not materially impair and would not reasonably be expected to materially impair, the “Leases” continued use and each operation of such propertymaterial Company Property to which they relate in the conduct of the Company and the Company Subsidiaries as presently conducted and Liens on other Company Properties that, individually or in the aggregate, have not had and would not reasonably be expected to have a “Leased Real Property”Company Material Adverse Effect. This Section 4.15 does not relate to Intellectual Property Rights matters, which are the subject of Section 4.16.
(b) is valid and binding on the The Company and each of its the Company Subsidiaries party thereto andhas complied with the terms of all leases, subleases and licenses entitling it to the knowledge use of the Companyreal property owned by third parties (“Company Leases”), each other party thereto and is all Company Leases are valid and in full force and effect; (ii) there , except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company and each Company Subsidiary is no breach in exclusive possession of the properties or default assets purported to be leased under any Lease by all the Company Leases, except for such failures to have such possession of material properties or any of its Subsidiaries orassets as, individually or in the aggregate, do not materially impair and would not reasonably be expected to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Companymaterially impair, the Company or one continued use and operation of its Subsidiaries that is either such material assets to which they relate in the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel conduct of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in as presently conducted and failures to have such possession of immaterial properties or assets as, individually or in the properties purported to be leased or licensed thereunderaggregate, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, had and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (SAVVIS, Inc.), Merger Agreement (Centurylink, Inc)
Properties. (a) The Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or one of its Subsidiaries has good fee simple title to all the personal properties Owned Real Property and assets reflected valid leasehold estates in all Leased Real Property, in each case free and clear of all Encumbrances, except Permitted Encumbrances. Except as has not had and would not be reasonably likely to have, individually or in the latest audited balance sheet included in the aggregate, a Company SEC Reports as being owned by Material Adverse Effect, the Company or one of its SubsidiariesSubsidiaries has exclusive possession of each Leased Real Property and Owned Real Property, other than any use and occupancy rights granted to third-party owners, tenants or that have been acquired after licensees. Other than as listed in Section 3.14 of the date thereof and that are Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a lessor or grantor under any material lease or other instrument granting to any other Person any right to the Company’s business on a consolidated basis (except properties sold possession, lease, occupancy or otherwise disposed enjoyment of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liensany material Owned Real Property or material portion thereof.
(b) Except as has not had and would notnot be reasonably likely to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: , (i) each lease or license pursuant to which for the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and Property is in full force and effect; effect and is valid, binding and enforceable against the Company or one of its Subsidiaries and, to the Knowledge of the Company, the other parties thereto in accordance with its terms, except that such enforcement may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws affecting creditors’ rights generally and general principles of equitable relief, and (ii) there is no breach or default under any Lease lease for the Leased Real Property either by the Company or any of its Subsidiaries or, to the knowledge Knowledge of the Company, by any other party thereto; (iii) , and no event has occurred that that, with or without the lapse of time or the giving of notice or both both, would constitute a breach or default under any Lease by the Company or any of its Subsidiaries orthereunder.
(c) Except as has not had and would not be reasonably likely to have, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company individually or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii)aggregate, as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge Knowledge of Company, threatened, against the Company, threatened condemnation or eminent domain proceedings that affect any Company Subsidiary, the Owned Real Property or the Improvements Leased Real Property, and (as defined belowii) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor has not received any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation the intention of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain Governmental Entity or other public acquisition proceeding that would result in the taking of all or Person to take any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryProperty.
Appears in 2 contracts
Sources: Transaction Agreement (Chicago Bridge & Iron Co N V), Transaction Agreement (Shaw Group Inc)
Properties. (a) The Company or one of its Subsidiaries Pine and each Pine Subsidiary has good and valid title to to, or good and valid leasehold interests in, all the personal their respective properties and assets reflected (the “Pine Properties”) except in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notrespects that, individually or in the aggregate, have not had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Pine Material Adverse Effect. The Pine Properties are, in all respects, adequate and sufficient, and in satisfactory condition, to support the operations of Pine and the Pine Subsidiaries as presently conducted, except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Pine Material Adverse Effect. All of the Pine Properties are free and clear of all Liens, except for Liens on material Pine Properties that, individually or in the aggregate, do not materially impair and would not reasonably be expected to materially impair, the continued use and operation of such material Pine Property to which they relate in the conduct of Pine and the Pine Subsidiaries as presently conducted and Liens on other Pine Properties that, individually or in the aggregate, have not had and would not reasonably be expected to have a Pine Material Adverse Effect. This Section 4.15 does not relate to Intellectual Property Rights matters, which are the subject of Section 4.16.
(b) Pine and each of the Pine Subsidiaries has complied with the terms of all leases, subleases and licenses entitling it to the use of real property owned by third parties (“Pine Leases”), and all Pine Leases are valid and in full force and effect, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Pine Material Adverse Effect. Pine and each Pine Subsidiary is in exclusive possession of the properties or assets purported to be leased under all the Pine Leases, except for such failures to have such possession of material properties or assets as, individually or in the aggregate, do not materially impair and would not reasonably be expected to materially impair, the continued use and operation of such material assets to which they relate in the conduct of Pine and Pine Subsidiaries as presently conducted and failures to have such possession of immaterial properties or assets as, individually or in the aggregate, have not had and would not reasonably be expected to have a Pine Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Embarq CORP), Merger Agreement (Centurytel Inc)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its SubsidiariesSubsidiaries have good and marketable title to, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of leased property and assets have valid leasehold interests in, all property and assets (iiwhether real, personal, tangible or intangible) and (iii)reflected on the Company Balance Sheet or acquired after the Company Balance Sheet Date, except as would not reasonably be expected to have a been disposed of since the Company Material Adverse EffectBalance Sheet Date in the ordinary course of business consistent with past practice.
(cb) The Section 4.14(b) of the Company has made available to Purchaser correct Disclosure Schedule contains a true and complete copies list, as of the date hereof, of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ owned by the Company and certain land located in Batavia, Illinois its Subsidiaries (the “Owned Real Property”), neither .
(c) Section 4.14(c) of the Company nor Disclosure Schedule contains a true and complete list, as of the date hereof, or each material lease, sublease or license (each, a “Lease”) under which the Company or any Company Subsidiary owns of its Subsidiaries leases, subleases or licenses any real property. The Company or property (the applicable Company Subsidiary (i) has good “Leased Real Property” and indefeasible fee simple title to all of together with the Owned Real Property, free and clear of any Liensthe “Company Real Property”). Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Lease is valid and in full force and effect and (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in defaultof its Subsidiaries, nor to the Company’s knowledge any other party to a Lease, has violated any provision of, or has ever been in defaulttaken or failed to take any act which, under any restrictive covenants affecting the Owned Real Propertywith or without notice, and no event has occurred that, after notice or the lapse of time time, or both, would constitute a default under the provisions of such a defaultLease, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither neither the Company nor any Company Subsidiary of its Subsidiaries has received from notice that it has breached, violated or defaulted under any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining Lease.
(d) Except as would not reasonably be expected to any buildingshave, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included individually or in the Leased aggregate, a Company Material Adverse Effect, the Company Real Property and any plants, buildings, structures and equipment thereon owned or leased by the Owned Real Property Company and its Subsidiaries have no defects, are in good operating condition and repair and have been maintained consistent with standards generally followed in the industry (collectivelygiven due account to the age and length of use of same, the “Improvements”ordinary wear and tear excepted), including those pertaining to health are adequate and safety, zoning, building, suitable for their present and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, orintended uses and, to the actual knowledge Company’s knowledge, in the case of buildings (including the Company (without a duty of investigation or inquiryroofs thereof), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryare structurally sound.
Appears in 2 contracts
Sources: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Arthrocare Corp)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all the personal of its real properties and tangible assets reflected in the latest audited balance sheet included in that are necessary for the Company SEC Reports and its Subsidiaries to conduct their respective businesses as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)currently conducted, free and clear of all Liens other than Permitted Liens of the Permitted Liens.
(b) Company and its Subsidiaries. Except as has not had, and would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which , the tangible personal property currently used in the operation of the business of the Company and the Company its Subsidiaries leases or licenses any real property is in good working order (collectively, the “Leases” reasonable wear and each such property, a “Leased Real Property”tear excepted).
(b) is valid and binding on Each of the Company and each of its Subsidiaries party thereto andhas complied with the terms of all real property leases to which it is a party, to the knowledge of the Company, each other party thereto and is all such leases are in full force and effect; (ii) there is no breach , except for any such noncompliance or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported failure to be leased in full force and effect that, individually or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) aggregate, has not had and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither . Neither the Company nor any Company Subsidiary owns any real property. The Company or of its Subsidiaries nor, to the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all knowledge of the Owned Real PropertyCompany, free and clear of any Liensother party to the lease, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, breach or has ever been in default, default under any restrictive covenants affecting the Owned Real Propertysuch lease, and no event has occurred thator circumstance exists which would, after notice with or the without notice, lapse of time time, or both, would constitute a breach or default under such a default, and (v) there is no proceeding or claim pending or, to the knowledge lease. Each of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining such failure to any buildingsdo so that, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included individually or in the Leased Real Property aggregate, has not had and the Owned Real Property (collectively, the “Improvements”), including those pertaining would not reasonably be expected to health and safety, zoning, building, and construction requirements and the disabledhave a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary of its Subsidiaries has made any material alterationsassigned, additionspledged, mortgaged, hypothecated, or Improvements to otherwise transferred any lease or any interest therein nor has the Company or any of the Leased Real Property that may be required to be removed upon termination its Subsidiaries subleased, licensed, or otherwise granted any Person (other than another wholly owned Subsidiary of the term of the applicable Lease. Neither the Company nor Company) a right to use or occupy such leased real estate or any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge portion thereof.
(c) Section 4.19(c) of the Company Disclosure Letter sets forth a true and complete list of (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in i) all real property owned by the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any of its Subsidiaries and (ii) all real property leased for the benefit of the Company Subsidiaryor any of its Subsidiaries pursuant to a Contract providing for annual aggregate rent in excess of $25,000. This Section 4.19 does not relate to Intellectual Property matters, which matters are the subject of Section 4.20.
Appears in 2 contracts
Sources: Merger Agreement (Neos Therapeutics, Inc.), Merger Agreement (Aytu Bioscience, Inc)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(bi) Except as would notnot have, or would not reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Parent Material Adverse Effect: , Parent or a Subsidiary of Parent owns fee simple title to or has a valid leasehold interest in, each of the real properties reflected as an asset on the most recent balance sheet of Parent included in the Parent SEC Documents (i) each lease or license pursuant to which the Company each, a “Parent Property” and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such propertyParent Properties”), a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease case free and clear of any Liens; all Liens except for (A) debt and (vother matters set forth in Section 3.2(m)(i) the Company and Company Subsidiaries are in possession of the properties purported to be leased Parent Disclosure Letter or licensed thereunderthe Parent SEC Documents, have not assigned(B) inchoate mechanics’, pledgedworkmen’s, mortgaged, hypothecated repairmen’s and other inchoate Liens imposed for construction work in progress or otherwise transferred any Leaseincurred in the ordinary course of business, or portion thereof(C) mechanics’, workmen’s and have not entered into with any other person repairmen’s Liens (other than another wholly-owned subsidiary inchoate Liens for work in progress) which have heretofore been bonded or insured, (D) all matters disclosed on existing title policies or surveys, none of which, individually or in the aggregate, would have a material adverse effect on the use and operation of such Parent Property, (E) real estate Taxes and special assessments not yet due and payable or which are being contested in good faith in the ordinary course of business and (F) Liens and other encumbrances that would not cause a material adverse effect on the value or use of the Company) any subleaseaffected property. Except as would not have, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have have, individually or in the aggregate, a Company Parent Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies , none of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company Parent nor any Company Subsidiary owns any real property. The Company or of Parent has received written notice to the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) effect that there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there condemnation proceedings that are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of CompanyParent, threatened, against with respect to any material portion of any of the CompanyParent Properties. Except for the owners of the properties in which Parent or any Subsidiary of Parent has a leasehold interest and except for any Parent Property that is held by a fund, no Person other than Parent or a Subsidiary of Parent has any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, ownership interest in any court of the Parent Properties (other than immaterial easements, licenses or before any Governmental Authoritysimilar rights).
(eii) Neither Parent and the Company nor any Company Subsidiary has received from any Governmental Authority written notice Subsidiaries of any uncured violation Parent have good and sufficient title to, or are permitted to use under valid and existing leases, all personal and non-real properties and assets reflected in their books and records as being owned by them or reflected on the most recent balance sheet of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, Parent included in the Leased Real Property Parent SEC Documents (except as has since been sold or otherwise disposed of in the ordinary course of business) or used by them in the ordinary course of business, free and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, buildingclear of all Liens, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additionsexcept as would not have, or Improvements would not reasonably be expected to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existinghave, proposed, or, to the actual knowledge of the Company (without a duty of investigation individually or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryaggregate, a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Spirit Realty Capital, Inc.), Merger Agreement (Realty Income Corp)
Properties. (a) Section 3.18(a) of the Company Disclosure Letter sets forth a true and complete list of all material real property owned by the Company or any of its Subsidiaries (“Current Company Owned Real Property”) and all material property leased for the benefit of the Company or any of its Subsidiaries (“Current Company Leased Real Property”). Except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company, each of the Company and its Subsidiaries has (i) good and marketable title in fee simple to all Current Company Owned Real Property and (ii) good and marketable leasehold title to all Current Company Leased Real Property, in each case, free and clear of all Liens except for (A) Liens for current taxes and assessments not yet past due or the amount or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established therefor, (B) mechanics’, workmen’s, repairmen’s, warehousemen’s, landlords’, carriers’ or similar Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice, and (C) any matter that would be disclosed on a current title report or survey and such other matters of record, Liens and other imperfections of title, in each case, with respect to Current Company Owned Real Property and Current Company Leased Real Property that do not, individually or in the aggregate, materially impair the continued ownership, use and operation of the real property to which they relate in the business of the Company and its Subsidiaries as currently conducted (such matters described in the foregoing clauses (A)-(C), “Permitted Encumbrances”). To the Knowledge of the Company, no parcel of Current Company Owned Real Property or Current Company Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any Governmental Entity with or without payment of compensation therefor, nor, to the Knowledge of the Company, has any such condemnation, expropriation or taking been proposed by any Governmental Entity.
(b) Each of the Company and its Subsidiaries has complied with the terms of all leases of the Current Company Leased Real Property except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company. All leases of Current Company Leased Real Property and all amendments and modifications thereto are in full force and effect, and there exists no default under any such lease by the Company, any of its Subsidiaries or any other party thereto, nor any event which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company.
(c) There are no contractual or legal restrictions that preclude or restrict the ability to use any Current Company Owned Real Property or Current Company Leased Real Property by the Company or any of its Subsidiaries for the current use of such real property, except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Company. There are no latent defects or material adverse physical conditions affecting the Current Company Owned Real Property or the Current Company Leased Real Property that, individually or in the aggregate, have had, or would reasonably be expected to have, a Material Adverse Effect on the Company.
(d) The Company or one of its Subsidiaries has good and valid title to all the personal properties and assets reflected to, or in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one case of leased tangible assets, a valid leasehold interest in, all of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)tangible assets, free and clear of all Liens other than the Permitted Liens.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected . This Section 3.18 does not relate to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such intellectual property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is the subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse EffectSection 3.19.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Aecom Technology Corp), Agreement and Plan of Merger (Urs Corp /New/)
Properties. (a) The Company Except in respects that, individually or one of its Subsidiaries in the aggregate, have not had and would not reasonably be expected to have a Potlatch Material Adverse Effect, Potlatch or a Potlatch Subsidiary has good and valid title to all to, and marketable and insurable fee simple interest in or a valid leasehold interest in, each of the personal real properties and assets reflected in as an asset on the latest audited most recent balance sheet of Potlatch included in the Company SEC Reports as being owned by the Company or one of its SubsidiariesPotlatch Reporting Documents (each, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business“Potlatch Property”), in each case free and clear of all conditions, encroachments, easements, rights of way, restrictions and Liens, except for conditions, encroachments, easements, rights of way, restrictions or Liens other than the Permitted Liens.
(b) Except as would which do not, individually or in the aggregate, have had or materially impair and would not reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant materially impair the continued use and operation of the real properties to which they relate in the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” conduct of Potlatch and each such propertyPotlatch Subsidiary as presently conducted. Except for matters that, a “Leased Real Property”) is valid and binding on individually or in the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunderaggregate, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, had and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Potlatch Material Adverse Effect, neither Potlatch nor any Potlatch Subsidiary has received notice to the effect that there are any condemnation, expropriation or other proceedings that are pending or, to the Knowledge of Potlatch, threatened with respect to any material portion of any of the Potlatch Properties. Except for the owners of the properties in which Potlatch or a Potlatch Subsidiary has a leasehold interest and except as, individually or in the aggregate, have not had and would not reasonably be expected to have a Potlatch Material Adverse Effect, no Person other than Potlatch or a Potlatch Subsidiary has any ownership interest in any of the Potlatch Properties, except to the extent that such interest would not be reasonably expected to adversely impact Potlatch’s or the Potlatch Subsidiary’s continued use of the applicable Potlatch Property consistent with its operation as of the date of this Agreement.
(cb) The Company has made available Except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to Purchaser correct and complete copies of all Leaseshave a Potlatch Material Adverse Effect, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) neither Potlatch nor any Potlatch Subsidiary has good and indefeasible fee simple title leased or otherwise granted to all of any Person the Owned Real Property, free and clear of right to use or occupy any LiensPotlatch Property or any portion thereof, (ii) there are no leasesoutstanding options, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options rights of first offer or rights of first refusal to purchase the any Potlatch Property owned by Potlatch or any Potlatch Subsidiary (“Owned Real Property Potlatch Property”) or any portion thereof or interest therein, (iii) there are no boundary disputes relating to any Owned Potlatch Property and no encroachments materially and adversely affecting the use of any Owned Real Potlatch Property is not currently being offered for sale, and (iv) neither with respect to each Owned Potlatch Property, all material buildings, structures, fixtures and improvements are in all respects adequate and sufficient and in satisfactory condition to support the Company nor any Company operations of Potlatch and each Potlatch Subsidiary is as presently conducted to the extent related to such Owned Potlatch Property.
(c) Except in defaultrespects that, individually or has ever in the aggregate, have not had and would not reasonably be expected to have a Potlatch Material Adverse Effect, (i) policies of title insurance or updates or endorsements have been in defaultissued, under any restrictive covenants affecting insuring Potlatch’s or the applicable Potlatch Subsidiary’s fee simple title to each of the Owned Real PropertyPotlatch Properties that is a manufacturing or similar facility, and no event in amounts at least equal to the purchase price paid for ownership of such Potlatch Property or such entity that owned such Potlatch Property at the time of the issuance of each such policy, (ii) there has occurred that, after notice or the lapse of time or both, would constitute not been any claim made against any such a default, policy that has not been resolved and (viii) there is no suit, action or other proceeding or claim pending or, to the knowledge Knowledge of CompanyPotlatch, threatened, threatened against or affecting Potlatch or any Potlatch Subsidiary challenging Potlatch’s or the Company, any Company applicable Potlatch Subsidiary, ’s fee simple title to each of the Owned Real Property Potlatch Properties.
(d) Each of Potlatch and each Potlatch Subsidiary has complied with the terms of all leases pursuant to which Potlatch or a Potlatch Subsidiary has a leasehold interest in the Improvements (as defined below) Potlatch Properties, and all such leases are in full force and effect, except for such noncompliance or personal property thereonfailure to be in full force and effect that, individually or in any court or before any Governmental Authoritythe aggregate, has not had and would not reasonably be expected to have a Potlatch Material Adverse Effect.
(e) Neither Except in respects that, individually or in the Company aggregate, have not had and would not reasonably be expected to have a Potlatch Material Adverse Effect, neither Potlatch nor any Company Potlatch Subsidiary has received from taken any Governmental Authority written notice action which would disqualify portions of any uncured violation Potlatch Property now assessed for ad valorem Taxes on the basis of any applicable Laws pertaining to any buildingsfarm, structuresforest or open space for continued assessment as farm, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, forest or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryopen space lands.
Appears in 2 contracts
Sources: Merger Agreement (Deltic Timber Corp), Merger Agreement (Potlatch Corp)
Properties. (a) The Neither the Company or one nor any of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liensown any real property.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Prohibited Effect: (i) , each lease or license pursuant to which of the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, has good and marketable title to all the knowledge of the Company, each other party thereto properties and is in full force and effect; (ii) there is no breach or default under any Lease assets owned by the Company or any of its Subsidiaries or, to in the knowledge case of property held under Lease or other Contract, each of the CompanyCompany and its Subsidiaries have a valid and subsisting leasehold interest in or a legal, valid and enforceable right to use, free and clear of all Liens except Permitted Liens.
(c) All material leases, subleases, licenses and other occupancy agreements together with any amendments thereto, any other party thereto; option agreements and any subordination, nondisturbance and attornment agreements (iii) no event has occurred that the "Leases"), with respect to all real property leased or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease subleased by the Company or any of its Subsidiaries orare in full force and effect. Neither the Company or any of its Subsidiaries nor, to the knowledge of the Company's Knowledge, any other party thereto; (iv) to the knowledge thereto is in default under any of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and Leases (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred thatwhich, after with due notice or the lapse of time or both, would constitute such a default), except for such defaults which, individually or in the aggregate, would not reasonably be expected to have a Prohibited Effect. The Company has made available to Parent true correct and complete copies of each Lease required to be listed on Schedule 4.12.
(vd) there is no proceeding or claim pending or, The assets of the Company and its Subsidiaries in the aggregate are adequate to conduct the knowledge operations of Company, threatened, against the Company, any Company Subsidiary, and its Subsidiaries in substantially the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authoritymanner currently conducted.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge The tangible personal property of the Company and its Subsidiaries is in good condition and repair (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in ordinary wear and tear excepted) and is adequate for the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use uses to which it is being put and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in for the conduct of the business of the Company and its Subsidiaries as currently conducted.
(f) For purposes of this Agreement, the term "Lien" means any Company charge, claim, community property interest, condition, equitable interest, lien, option, pledge, security interest, right of first refusal, or restriction of any Company Subsidiarykind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership. In addition, the term "Permitted Liens" means, with respect to any asset, (i) covenants, conditions, restrictions, encroachments, encumbrances, easements, rights of way, licenses, grants, building or use restrictions, exceptions, reservations, limitations or other imperfections of title (other than a Lien securing any Indebtedness) with respect to such asset which, individually or in the aggregate, does not materially detract from the value of, or materially interfere with the present occupancy or use of, such asset and the continuation of the present occupancy or use of such asset; (ii) the matters set forth on Schedule 4.9; (iii) unfiled mechanic's, materialmen's and similar liens with respect to amounts not yet due and payable or which are being contested in good faith through appropriate proceedings; (iv) liens for Taxes not yet delinquent or which are being contested in good faith through appropriate proceedings and, for those existing on the date of the Balance Sheet, for which adequate reserves in accordance with GAAP are reflected on the Balance Sheet, or arose subsequent to the date of the date of the Balance Sheet in the ordinary course of business; and (v) liens securing rental payments under operating leases and capital lease arrangements, which capital lease arrangements if existing on the date of the Balance Sheet were reflected on the Balance Sheet, or arose subsequent to the date of the Balance Sheet in the ordinary course of business.
Appears in 2 contracts
Sources: Merger Agreement (Software Spectrum Inc), Merger Agreement (Level 3 Communications Inc)
Properties. Except as disclosed in the Parent Reports filed prior to the date hereof, Parent and its subsidiaries (a) The Company or one of its Subsidiaries has good have good, clear and marketable title to all the personal properties and assets which are material to Parent's business on a consolidated basis and are reflected in the latest audited balance sheet statement of condition included in the Company SEC Parent Reports as being owned by the Company Parent and its subsidiaries or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of businessthereof), free and clear of all Liens other than except (i) statutory Liens securing payments not yet due, (ii) Liens on assets of subsidiaries of Parent incurred in the Permitted Liens.
ordinary course of their business and (iii) such imperfections or irregularities of title or Liens as do not affect the use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties, in either case in such a manner as to have a Material Adverse Effect on Parent, and (b) Except as would not, individually or are collectively the lessee of all leasehold estates which are material to Parent's business on a consolidated basis and are reflected in the aggregate, latest audited financial statements included in the Parent Reports or acquired after the date thereof (except for leases that have had expired by their terms or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant as to which Parent has agreed to terminate or convey since the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”date thereof) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of each such lease is valid without default thereunder by the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending lessee or, to the knowledge of Company, threatened, against the Company, any Company SubsidiaryParent's knowledge, the Owned Real Property or the Improvements (as defined below) or personal property thereonlessor, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding than defaults that would result in the taking not have a Material Adverse Effect on Parent. Each of Parent and each of its subsidiaries enjoys peaceful and undisturbed possession of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use such leases. Substantially all Parent's and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.its subsidiaries, owned
Appears in 2 contracts
Sources: Merger Agreement (Citizens Banking Corp), Merger Agreement (Citizens Banking Corp)
Properties. (a) Section 4.16(a) (Part I) of the Company Disclosure Letter sets forth a list of the common name of each facility and real property owned, leased (as lessee or sublessee), including ground leased, by the Company or any Company Subsidiary as of the date of this Agreement (all such real property interests, together with all buildings, structures and other improvements and fixtures located on or under such real property and all easements, rights and other appurtenances to such real property, are individually referred to herein as a “Company Property” and collectively referred to herein as the “Company Properties”). Section 4.16(a) (Part II) of the Company Disclosure Letter sets forth a list of the common name of each facility and real property which, as of the date of this Agreement, is under contract by the Company or a Company Subsidiary for purchase or which is required under a binding contract to be leased or subleased by the Company or a Company Subsidiary after the date of this Agreement. Except as set forth in Section 4.16(a) (Part II) of the Company Disclosure Letter, there are no real properties that the Company or any Company Subsidiary is obligated to buy, lease or sublease at some future date.
(b) The Company or one a Company Subsidiary owns good and valid fee simple title or leasehold title (as applicable) to each of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its SubsidiariesProperties, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)each case, free and clear of all Liens, except for Company Permitted Liens other than the Permitted Liens.
(b) Except as that have not had and would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: . For the purposes of this Agreement, “Company Permitted Liens” shall mean any (i) each lease or license pursuant Liens relating to which any Indebtedness incurred in the Company and the Company Subsidiaries leases or licenses any real property (collectivelyordinary course of business consistent with past practice, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) Liens that result from any statutory or other Liens for Taxes or assessments that are not yet subject to penalty or the validity of which is being contested in good faith by appropriate proceedings and for which there is no breach are adequate reserves on the financial statements of the Company (if such reserves are required pursuant to GAAP), (iii) any Company Material Contracts or default under other service contracts, management agreements, leasing commission agreements, agreements or obligations set forth in Section 4.16(l) of the Company Disclosure Letter, or Company Leases or ground leases or air rights affecting any Lease Company Property, (iv) Liens imposed or promulgated by Law or any Governmental Authority, including zoning regulations, permits and licenses, (v) Liens that are disclosed on the existing Company Title Insurance Policies made available by or on behalf of the Company or any of its Subsidiaries or, Company Subsidiary to Parent prior to the knowledge date hereof and, with respect to leasehold interests, Liens on the underlying fee or leasehold interest of the Companyapplicable ground lessor, lessor or sublessor, (vi) any cashiers’, landlords’, workers’, mechanics’, carriers’, workmen’s, repairmen’s and materialmen’s liens and other party thereto; (iii) no event has occurred similar Liens imposed by Law and incurred in the ordinary course of business consistent with past practice that with or without the lapse of time are not yet subject to penalty or the giving validity of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are being contested in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a defaultfaith by appropriate proceedings, and (vvii) there is no proceeding any other Liens, limitations, restrictions or claim pending or, to title defects that do not materially impair the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge value of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment operation of any Leased Real Property or the Owned Real Company Property as heretofore currently used in the conduct of the business of any Company or any Company Subsidiaryand operated.
Appears in 2 contracts
Sources: Merger Agreement (Realty Income Corp), Merger Agreement (American Realty Capital Trust, Inc.)
Properties. (a) The Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each Contract under which the Company or one any of its Subsidiaries is the landlord, sublandlord, tenant, subtenant or occupant (a “Company Real Property Lease”) with respect to material real property leased, subleased, held under concession, licensed or otherwise occupied (whether as tenant, subtenant or pursuant to other occupancy arrangements) by the Company or any of its Subsidiaries (collectively, including the improvements thereon, “Company Leased Real Property”) is valid and binding on the Company or the Subsidiary thereof party thereto, and, to the Knowledge of the Company, each other party thereto. Neither the Company nor any of its Subsidiaries is currently subleasing, licensing or otherwise granting any person the right to use or occupy a material portion of the Company Leased Real Property that would reasonably be expected to adversely affect the existing use of the Company Leased Real Property by the Company or its Subsidiaries in the operation of their business thereon, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, there is no uncured default by the Company or any of its Subsidiaries under any Company Real Property Lease or, to the Knowledge of the Company, by any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would reasonably be expected to constitute a default thereunder by the Company or any of its Subsidiaries or, to the Knowledge of the Company, by any other party thereto. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has good title to all the personal properties received any written notice of termination or cancelation, and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Knowledge of the Company’s business on a consolidated basis (except properties sold , no termination or otherwise disposed of since the date thereof in the ordinary course of business)cancelation is threatened, free and clear of all Liens other than the Permitted Liensunder any material Company Real Property Lease.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a have good and valid leasehold interest in each parcel fee simple title to all of the real property which owned by the Company and its Subsidiaries (the “Company Owned Real Property” and, together with the Company Leased Real Property, the “Company Real Property”). The Company Real Property is subject to a Lease for the full term of the respective Lease (i) free and clear of all Liens of any nature whatsoever, except Permitted Liens; , (ii) in good condition and repair, reasonable wear and tear excepted, and (viii) adequate to carry on the Company and Company Subsidiaries are in possession business of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Section 3.17(c) of the Company Disclosure Schedules sets forth a list of all Company Leased Real Property and Company Owned Real Property together with a correct street address or, if no such street address is available, such other information as is reasonably necessary to identify each parcel of such Company Leased Real Property and Company Owned Real Property.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary its Subsidiaries has received written notice of any existingcondemnation proceeding or proposed action or agreement for taking in lieu of condemnation, proposednor is any such proceeding, action or agreement pending or, to the actual knowledge Knowledge of the Company (without a duty of investigation or inquiry)Company, threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or threatened with respect to any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business portion of any Company or any Company SubsidiaryOwned Real Property.
Appears in 2 contracts
Sources: Merger Agreement (Gildan Activewear Inc.), Merger Agreement (Hanesbrands Inc.)
Properties. (a) The Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or one of its Subsidiaries has good and valid title to, or valid leasehold or other ownership interest or rights in, each of the material real properties (except for any of the Company’s or any its Subsidiaries’ Oil and Gas Properties, which are subject to all Section 3.25 and shall not constitute a Company Property for the personal properties and assets purposes of this Agreement) reflected in as an asset on the latest audited most recent balance sheet of the Company included in the Company SEC Reports as being owned by the Documents (each, a “Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of businessProperty”), in each case free and clear of all Liens, defects or imperfections, except for Permitted Liens other than or Liens, defects or imperfections which do not and would not reasonably be expected to, individually or in the Permitted Liens.
(b) aggregate, materially impair the continued use and operation of the real properties to which they relate in the conduct of the business of the Company and each of its Subsidiaries as presently conducted. Except as would notfor matters that, individually or in the aggregate, have not had or and would not reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which , neither the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or nor any of its Subsidiaries has received written notice to the effect that there are any condemnation, expropriation or other proceedings that are pending or, to the knowledge of the Company, threatened with respect to any other party thereto; (iii) no event has occurred that with or without the lapse material portion of time or the giving any of notice or both would constitute a breach or default under any Lease by the Company Properties.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries orhas leased or otherwise granted to any Person the right to use or occupy any Company Property or any portion thereof, (ii) there are no outstanding options, rights of first offer or rights of first refusal to purchase any Company Property or any portion thereof or interest therein, (iii) there are no boundary disputes relating to any Company Property and no encroachments materially and adversely affecting the use of any Company Property and (iv) with respect to each Company Property, all material buildings, structures, fixtures and improvements are in all respects adequate and sufficient and in satisfactory condition to support the operations of the Company and each of its Subsidiaries as presently conducted.
(c) Each lease pursuant to which the Company or one of its Subsidiaries has a leasehold interest in the Company Properties, to the knowledge of the Company, any other party thereto; (iv) is in full force and effect and is valid and enforceable against the parties thereto in accordance with its terms, subject, as to the knowledge of the Companyenforceability, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease Creditors’ Rights, except for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported such failure to be leased in full force and effect that, individually or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) aggregate, has not had and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Parsley Energy, Inc.)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(bi) Except as would notnot have, or would not reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company an AMB Material Adverse Effect: (i) each lease , AMB or license pursuant a Subsidiary of AMB owns fee simple title to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in, each of the real properties reflected as an asset on the most recent balance sheet of AMB included in the AMB SEC Documents (each an “AMB Property” and collectively the “AMB Properties”), in each parcel of real property which is subject to a Lease for the full term of the respective Lease case free and clear of any Liens; all Liens except for (A) debt and (vother matters set forth in Section 3.1(o)(i) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunderAMB Disclosure Letter, have not assigned(B) inchoate mechanics’, pledgedworkmen’s, mortgaged, hypothecated repairmen’s and other inchoate Liens imposed for construction work in progress or otherwise transferred any Leaseincurred in the ordinary course of business, or portion thereof(C) mechanics’, workmen’s and have not entered into with any other person repairmen’s Liens (other than another wholly-owned subsidiary inchoate Liens for work in progress) which have heretofore been bonded or insured, (D) all matters disclosed on existing title policies or surveys, (E) real estate Taxes and special assessments not yet due and payable or which are being contested in good faith in the ordinary course of business, and (F) Liens and other encumbrances that would not cause a material adverse effect on the value or use of the Company) any subleaseaffected property. Except as would not have, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company have, individually or in the aggregate, an AMB Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies , none of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company AMB nor any Company Subsidiary owns any real property. The Company or of AMB has received written notice to the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) effect that there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there condemnation proceedings that are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of CompanyAMB, threatenedthreatened with respect to any material portion of any of the AMB Properties. Except for the owners of the properties in which AMB or any Subsidiary of AMB has a leasehold interest and except for any AMB Property that is held by a joint venture or fund, against the Company, no Person other than AMB or a Subsidiary of AMB has any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, ownership interest in any court or before any Governmental Authorityof the AMB Properties.
(eii) Neither Except as would not have, or would not reasonably be expected to have, individually or in the Company nor any Company aggregate, an AMB Material Adverse Effect, policies of title insurance or updates or endorsements have been issued, insuring AMB’s or the applic- able Subsidiary has received from any Governmental Authority written notice of any uncured violation AMB’s fee simple title to each of any applicable Laws pertaining the AMB Properties owned by AMB and acquired in the past five years, in amounts at least equal to any buildings, structures, fixturesthe purchase price paid for ownership of such AMB Property or such entity that owned such AMB Properties at the time of the issuance of each such policy, and other improvements, including the roof, foundation, floors, no material claim has been made against any such policy that has not been resolved.
(iii) AMB and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property any Subsidiary of AMB (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has A) have not received written notice of any existingstructural defects, proposedor violation of Law, orrelating to any AMB Property which would have, or would reasonably be expected to have, individually or in the actual knowledge aggregate, an AMB Material Adverse Effect and (B) have not received written notice of any physical damage to any AMB Property which would have, or would reasonably be expected to have, individually or in the aggregate, an AMB Material Adverse Effect for which there is not insurance in effect covering the cost of the Company restoration and the loss of revenue.
(without a duty iv) Except for secured loan documents entered into in the ordinary course of investigation business, there are no written agreements which restrict AMB or inquiry)any Subsidiary of AMB from transferring any of the AMB Properties, threatened, eminent domain and none of the AMB Properties is subject to any restriction on the sale or other public acquisition proceeding that disposition thereof (other than rights of first offer or rights of first refusal or tenant options as would result not have, or would not reasonably be expected to have, individually or in the taking aggregate, an AMB Material Adverse Effect) or on the financing or release of financing thereon.
(v) AMB and the Subsidiaries of AMB have good and sufficient title to, or are permitted to use under valid and existing leases, all personal and non-real properties and assets reflected in their books and records as being owned by them or reflected on the most recent balance sheet of AMB included in the AMB SEC Documents (except as since sold or otherwise disposed of in the ordinary course of business) or used by them in the ordinary course of business, free and clear of all Liens, and except as would not have, or any part of any Leased Real Property would not reasonably be expected to have, individually or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryaggregate, an AMB Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Prologis), Merger Agreement (Amb Property Lp)
Properties. (a) The Each of the Company or one of and its Subsidiaries has good title to or a valid leasehold interest in all the personal of its properties and assets reflected except for (1) statutory liens not yet delinquent which are being contested in the latest audited balance sheet included in the Company SEC Reports as being owned good faith by the Company or one appropriate proceedings, and liens for taxes not yet due, (2) pledges of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof assets in the ordinary course of business)business to secure public deposits, free (3) defects and clear irregularities of all Liens title and encumbrances that do not materially impair the use thereof for the purposes for which they are held, (4) mechanics’, materialmen’s, workmen’s, repairmen’s, warehousemen’s, carriers’ and other than similar liens arising in the Permitted Liensordinary course of business and (5) properties and assets the loss of which would not, individually or in the aggregate, have a Material Adverse Effect with respect to the Company.
(b) Except Section 3.20 of the Company Disclosure Schedule contains a complete and correct list of (A) all real property or premises owned on the date hereof, in whole or in part by the Company or any of its Subsidiaries and all real property that the Company or any of its Subsidiaries is in the process of foreclosing (whether by judicial process or by power of sale) or otherwise in the process of acquiring title to, and all indebtedness secured by any encumbrance thereon, and (B) all real property or premises leased or subleased in whole or in part by the Company or any of its Subsidiaries and together with a list of all applicable leases and the name of the lessor. None of such premises or properties have been condemned or otherwise taken by any public authority and, to the knowledge of the Company, no condemnation or taking is threatened or contemplated and none thereof is subject to any claim, contract or law which might affect its use or value for the purposes now made of it. None of the premises or properties of the Company or any of its Subsidiaries is subject to any current or potential interests of third parties or other restrictions or limitations that would impair or be inconsistent with the current use of such property by the Company or such Subsidiaries, except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: Effect with respect to the Company.
(ic) each lease or license pursuant Each of the leases referred to which in the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and Disclosure Schedule is in full force and effect; (ii) there , and no party thereto is in default and no breach or notice of a claim of default under by any Lease by party has been delivered to the Company or is now pending, and there does not exist any event that with notice or the passing of its Subsidiaries ortime, or both, would constitute a default or excuse performance by any party thereto, provided that with respect to matters relating to any party other than the Company the foregoing representation is based on the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Foothill Independent Bancorp), Merger Agreement (Foothill Independent Bancorp)
Properties. (a) The Company or one of its Subsidiaries Subject to the Liens expressly permitted by Section 6.02, the Borrower and each Restricted Subsidiary is the sole owner of, and has good record title to to, the Real Property described in Schedule 3.05(e) and is the sole owner of and has good and valid title to, all the other real and personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are property material to its business, including the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof real and personal property described in the ordinary course of businessSchedule 3.05(e), free and clear of all Liens other than in each case except where the Permitted Liens.
(b) Except as failure to have such title or interest does not or would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) . The Borrower and each lease Restricted Subsidiary owns and has maintained, in all material respects and in accordance with normal coal mining industry practice, all of the machinery, equipment, vehicles, preparation plants or license pursuant to which other coal processing facilities, loadouts and other transportation facilities and other tangible personal property now owned or leased by the Company Borrower and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Restricted Subsidiaries that is either necessary to conduct their business as it is now conducted, except where the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject failure to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, do so in the case of (ii) and (iii), as aggregate does not or would not reasonably be expected to have a Company Material Adverse Effect. All Real Property described in Schedule 3.05(e) and all other properties and assets comprising the Collateral are free and clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) The Borrower and each Restricted Subsidiary has complied with all obligations under all leases (including Mining Leases) to which it is a party, except where the failure to comply does not or would not have a Material Adverse Effect, and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect does not or would not reasonably be expected to have a Material Adverse Effect. Subject to the Liens expressly permitted by Section 6.02, the Borrower and each Restricted Subsidiary enjoys peaceful and undisturbed possession under all such Mining Leases, other than leases in respect of which the failure to enjoy peaceful and undisturbed possession would not reasonably be expected to have, in the aggregate, a Material Adverse Effect.
(c) The Company has made available Except as set forth on Schedule 3.05(c), and except for such claims that do not and would not reasonably be expected to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”)cause a Material Adverse Effect, neither the Company Borrower nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or Restricted Subsidiaries has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending received written or, to the knowledge of Companythe Borrower and the Restricted Subsidiaries, threatenedother notice of material claims, against which are still outstanding or unresolved, that the Company, Borrower or any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Restricted Subsidiary has received from mined any Governmental Authority written notice of coal that it did not have the right to mine or mined any uncured violation of any applicable Laws pertaining coal in such a manner as to give rise to any buildingsmaterial claims for loss, structureswaste or trespass, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, orand, to the actual knowledge of the Company (without Borrower and each Restricted Subsidiary, no facts exist upon which such a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryclaim could be based.
Appears in 2 contracts
Sources: Credit Agreement (Cloud Peak Energy Inc.), Credit Agreement (Cloud Peak Energy Inc.)
Properties. (a) The Company Section 5.10(a) of the REIT II Disclosure Letter lists each hotel and other parcels of real property constituting REIT II Properties, and sets forth REIT II or one of its Subsidiaries has good the applicable REIT II Subsidiary owning such REIT II Properties. Except as disclosed in title insurance policies and reports (and the documents or surveys referenced in such policies and reports): (A) REIT II or a REIT II Subsidiary owns fee simple title to all each of the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)REIT II Properties, free and clear of all Liens other than the Liens, except for Permitted Liens.
; (bB) Except except as has not had and would not, individually or in the aggregate, have a REIT II Material Adverse Effect, neither REIT II nor any REIT II Subsidiary has received written notice of any uncured violation of any Law (including zoning, building, or similar Laws) affecting any portion of any of the REIT II Properties issued by any Governmental Entity; and (C) except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company REIT II Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses , neither REIT II nor any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, REIT II Subsidiary has received written notice to the knowledge effect that there are condemnation or rezoning proceedings that are currently pending or threatened with respect to any of the CompanyREIT II Properties.
(b) Except as disclosed in property condition assessments and similar structural engineering reports relating to the REIT II Properties, each other party thereto and is in full force and effect; (ii) there is no breach REIT II has not received written notice of, nor does REIT II have any Knowledge of, any latent defects or default under any Lease by the Company or adverse physical conditions affecting any of its Subsidiaries or, the REIT II Properties or the improvements thereon that have not been corrected or cured prior to the knowledge date of this Agreement, except as would not, individually or in the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunderaggregate, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company REIT II Material Adverse Effect.
(c) The Company has made available REIT II and the REIT II Subsidiaries have good title to, or a valid and enforceable leasehold interest in, all personal property assets owned, used or held for use by them. Neither REIT II’s nor the REIT II Subsidiaries’ ownership of any such personal property is subject to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authorityother than Permitted Liens.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Moody National REIT I, Inc.), Agreement and Plan of Merger (Moody National REIT II, Inc.)
Properties. (a) The Company SOR II has made available to SOR a list of each parcel of real property currently owned or one ground leased by SOR II or any SOR II Subsidiary, together with the applicable SOR II Subsidiary owning or leasing such property. Except as set forth in Section 4.10 of its Subsidiaries has good the SOR II Disclosure Letter or as disclosed in title insurance policies and reports (and the documents or surveys referenced in such policies and reports): (A) SOR II or a SOR II Subsidiary owns fee simple title to all each of the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)SOR II Properties, free and clear of all Liens other than the Liens, except for Permitted Liens.
; (bB) Except except as has not had and would not, individually or in the aggregate, have a SOR II Material Adverse Effect, neither SOR II nor any SOR II Subsidiary has received written notice of any violation of any Law affecting any portion of any of the SOR II Properties issued by any Governmental Authority; and (C) except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company SOR II Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses , neither SOR II nor any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, SOR II Subsidiary has received notice to the knowledge effect that there are (1) condemnation or rezoning proceedings that are pending or threatened with respect to any of the CompanySOR II Properties or (2) zoning, each other party thereto and is in full force and effect; (ii) there is no breach building or default under any Lease similar Laws, codes, ordinances, orders or regulations that are or will be violated by the Company continued maintenance, operation or use of any buildings or other improvements on any of its Subsidiaries orthe SOR II Properties or by the continued maintenance, to the knowledge operation or use of the Companyparking areas.
(b) SOR II has not received written notice of, nor does SOR II have any Knowledge of, any other party thereto; (iii) no event has occurred that with material latent defects or without adverse physical conditions affecting any of the lapse of time SOR II Properties or the giving of notice improvements thereon, except as would not, individually or both would constitute a breach or default under any Lease by in the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunderaggregate, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company SOR II Material Adverse Effect.
(c) The Company has made available SOR II and the SOR II Subsidiaries have good title to, or a valid and enforceable leasehold interest in, all personal assets owned, used or held for use by them. Neither SOR II’s nor the SOR II Subsidiaries’ ownership of any such personal property is subject to Purchaser correct and complete copies of all Leasesany Liens, if any, including any amendments theretoother than Permitted Liens.
(d) Other than A policy of title insurance has been issued for each SOR II Property insuring, as of the real property commonly known aseffective date of such insurance policy, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company i)(A) fee simple title interest held by SOR II or the applicable Company SOR II Subsidiary with respect to SOR II Properties that are not subject to ground leases and (iB) has good a valid leasehold estate held by SOR II or the applicable SOR II Subsidiary that are subject to ground leases and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there to the Knowledge of SOR II, such insurance policies are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, in full force and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Propertyeffect, and no event material claim has occurred that, after notice or the lapse of time or both, would constitute been made against any such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (policy that remains outstanding as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination date of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryhereof.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Oak Strategic Opportunity REIT II, Inc.), Merger Agreement (Pacific Oak Strategic Opportunity REIT, Inc.)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected (i) a valid leasehold or sublease interest or other comparable contract right in the latest audited balance sheet included in the Company SEC Reports as being owned by real property that the Company or one any of its SubsidiariesSubsidiaries leases, subleases or otherwise occupies without owning (each such real property, a “Company Leased Real Property” and each such lease, sublease or comparable right, a “Company Lease”), and (ii) good, valid and marketable title to, or that have been acquired after a valid leasehold, sublease interest or other comparable contract right in, the date thereof other material tangible assets and that are material properties necessary to the Company’s business on a consolidated basis (except properties sold or otherwise disposed conduct of since the date thereof businesses of the Company and its Subsidiaries as currently conducted, in the ordinary course of business)each case, free and clear of all Liens liens, encumbrances, claims, security interests, mortgages, charges, defects or imperfections of title and other than similar encumbrances except for Permitted Encumbrances or those that have not had and would not reasonably be expected to have, individually or in the Permitted Liensaggregate, a Company Material Adverse Effect.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: , (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to have complied in all respects with the knowledge terms of the Company, each other party thereto all Company Leases and is all Company Leases are in full force and effect; , (ii) there is no breach neither the Company nor any of its Subsidiaries has received or default under delivered any Lease by written notice that the Company or any of its Subsidiaries or, to the knowledge of the Company, or any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a thereto is in breach or default under any Lease by Company Lease, (iii) the right of Company and its Subsidiaries to use any Company Leased Real Property, subject to a Company Lease, has not been sublet, assigned or otherwise granted to any third party, nor have the Company or any of its Subsidiaries orpledged, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company mortgaged or one of otherwise granted a lien on its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; Company Leased Real Property and (viv) the Company and Company any of its Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assignedexercised or given any notice of exercise of, pledgednor has any lessor or landlord exercised or given any notice of exercise by such party of, mortgagedany option, hypothecated right of first offer or otherwise transferred right of first refusal contained in any such Company Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from of its Subsidiaries owns any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryreal property.
Appears in 2 contracts
Sources: Transaction Agreement (Global Blue Group Holding AG), Transaction Agreement (Shift4 Payments, Inc.)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(bi) Except as would notnot have, or would not reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company ProLogis Material Adverse Effect: (i) each lease , ProLogis, or license pursuant a Subsidiary of ProLogis owns fee simple title to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in, each of the real properties reflected as an asset on the most recent balance sheet of ProLogis included in the ProLogis SEC Documents (each a “ProLogis Property” and collectively the “ProLogis Properties”), in each parcel of real property which is subject to a Lease for the full term of the respective Lease case free and clear of any Liens; all Liens except for (A) debt and (vother matters set forth in Section 3.2(o)(i) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunderProLogis Disclosure Letter, have not assigned(B) inchoate mechanics’, pledgedworkmen’s, mortgaged, hypothecated repairmen’s and other inchoate Liens imposed for construction work in progress or otherwise transferred any Leaseincurred in the ordinary course of business, or portion thereof(C) mechanics’, workmen’s and have not entered into with any other person repairmen’s Liens (other than another wholly-owned subsidiary inchoate Liens for work in progress) which have heretofore been bonded or insured, (D) all matters disclosed on existing title policies or surveys, (E) real estate Taxes and special assessments not yet due and payable or which are being contested in good faith in the ordinary course of business, and (F) Liens and other encumbrances that would not cause a material adverse effect on the value or use of the Company) any subleaseaffected property. Except as would not have, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have have, individually or in the aggregate, a Company ProLogis Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies , none of all LeasesProLogis, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or of ProLogis has received written notice to the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) effect that there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there condemnation proceedings that are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of CompanyProLogis, threatenedthreatened with respect to any material portion of any of the ProLogis Properties. Except for the owners of the properties in which ProLogis or any Subsidiary of ProLogis has a leasehold interest and except for any ProLogis Property that is held by a joint venture or fund, against the Company, no Person other than ProLogis or a Subsidiary of ProLogis has any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, ownership interest in any court or before any Governmental Authorityof the ProLogis Properties.
(eii) Neither Except as would not have, or would not reasonably be expected to have, individually or in the Company nor any Company aggregate, a ProLogis Material Adverse Effect, policies of title insurance or updates or endorsements have been issued, insuring ProLogis’s or the applicable Subsidiary has received from any Governmental Authority written notice of any uncured violation ProLogis’s fee simple title to each of any applicable Laws pertaining the ProLogis Properties owned by ProLogis and acquired in the past five years, in amounts at least equal to any buildings, structures, fixturesthe purchase price paid for ownership of such ProLogis Property or such entity that owned such ProLogis Properties at the time of the issuance of each such policy, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property no material claim has been made against any such policy that has not been resolved.
(collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor iii) ProLogis or any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has ProLogis (A) have not received written notice of any existingstructural defects, proposedor violation of Law, orrelating to any ProLogis Property which would have, or would reasonably be expected to have, individually or in the actual knowledge aggregate, a ProLogis Material Adverse Effect, and (B) have not received written notice of any physical damage to any ProLogis Property which would have, or would reasonably be expected to have, individually or in the aggregate, a ProLogis Material Adverse Effect for which there is not insurance in effect covering the cost of the Company restoration and the loss of revenue.
(without a duty iv) Except for secured loan documents entered into in the ordinary course of investigation business, there are no written agreements which restrict ProLogis or inquiry)any Subsidiary of ProLogis from transferring any of the ProLogis Properties, threatened, eminent domain and none of the ProLogis Properties is subject to any restriction on the sale or other public acquisition proceeding that disposition thereof (other than rights of first offer or rights of first refusal or tenant options as would result not have, or would not reasonably be expected to have, individually or in the taking aggregate, a ProLogis Material Adverse Effect) or on the financing or release of financing thereon.
(v) ProLogis and the Subsidiaries of ProLogis have good and sufficient title to, or are permitted to use under valid and existing leases, all personal and non-real properties and assets reflected in their books and records as being owned by them or reflected on the most recent balance sheet of ProLogis included in the ProLogis SEC Documents (except as since sold or otherwise disposed of in the ordinary course of business) or used by them in the ordinary course of business, free and clear of all Liens, and except as would not have, or any part of any Leased Real Property would not reasonably be expected to have, individually or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryaggregate, a ProLogis Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Prologis), Merger Agreement (Amb Property Lp)
Properties. (a) The Company or one of its Subsidiaries and each Company Subsidiary has good and valid title to to, or good and valid leasehold interests in, all the personal their respective tangible properties and tangible assets reflected (the “Company Properties”) except in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notrespects that, individually or in the aggregate, have not had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect. All of the Company Properties are free and clear of all Liens, except for Liens on material Company Properties that, individually or in the aggregate, do not materially impair and would not reasonably be expected to materially impair, the continued use and operation of such material Company Property to which they relate in the conduct of the Company and the Company Subsidiaries as presently conducted and Liens on other Company Properties that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. This Section 4.15 does not relate to Intellectual Property Rights matters, which are the subject of Section 4.16.
(cb) Neither the Company nor any of the Company Subsidiaries owns or has ever owned any real property, nor is any of them party to any agreement to purchase or sell any real property. Section 4.15(b) of the Company Disclosure Letter sets forth a list of all real property currently leased, subleased or licensed by or from the Company or any of the Company Subsidiaries or otherwise used or occupied by the Company or any of the Company Subsidiaries that requires annual payments in excess of $500,000 (the “Company Facilities”). The Company has made available to Purchaser Parent true, correct and complete copies of all Leasesleases, if anylease guaranties, licenses, subleases, agreements for the leasing, use or occupancy of, or otherwise granting a right in or relating to the Company Facilities, including any amendments thereto.
all amendments, terminations and modifications thereof (d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real PropertyCompany Leases”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all each of the Owned Real PropertyCompany Subsidiaries has complied with the terms of all Company Leases, free and clear all Company Leases are valid and in full force and effect, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no other party to any Liens, Company Lease is (ii) there are no leases, licenseswith or without notice or lapse of time, or occupancy agreements pursuant to which both) in breach or default thereunder, in any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, material respect. The Company and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any each Company Subsidiary is in default, exclusive possession of the properties or has ever been in default, assets purported to be leased under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither all the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryLeases.
Appears in 2 contracts
Sources: Merger Agreement (CEB Inc.), Merger Agreement (Gartner Inc)
Properties. (a) The Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the Company or one of its Subsidiaries has good and valid title to all the personal properties and assets reflected to, or in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one case of leased tangible assets, a valid leasehold interest in, all of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)tangible assets, free and clear of all Liens Liens, other than (i) Liens for current taxes and assessments not yet past due or the Permitted Liens.
amount or validity of which is being contested in good faith by appropriate proceedings, (bii) Except as would mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice, and (iii) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 3.17(b) of the Company Subsidiaries leases or licenses any Disclosure Letter sets forth a true and complete list of all real property owned by the Company or any of its Subsidiaries (collectively, the “Leases” Owned Real Property”) and each such property, a all property leased for the benefit of the Company or any of its Subsidiaries (the “Leased Real Property”) ), identifying each such property that is valid used by the Company as a distribution center. Except as has not had and binding on would not reasonably be expect to have, individually or in the aggregate, a Material Adverse Effect, each of the Company and each of its Subsidiaries party thereto andhas (i) good and marketable title in fee simple to all Owned Real Property and (ii) good and marketable leasehold title to all Leased Real Property, in each case, free and clear of all Liens except Permitted Liens. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, no parcel of Owned Real Property or Leased Real Property is subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefor, nor, to the knowledge of the Company, each other party has any such condemnation, expropriation or taking been proposed. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. All leases of Leased Real Property and all amendments and modifications thereto and is are in full force and effect; (ii) , and there is exists no breach or default under any Lease such lease by the Company, any of its Subsidiaries or any other party thereto, nor has any event occurred which, with notice or lapse of time or both, would constitute a default thereunder by the Company, any of its Subsidiaries or any other party thereto, except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, there are no contractual or legal restrictions that preclude or restrict the ability to use any Owned Real Property or Leased Real Property by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term current or contemplated use of the respective Lease free such real property. Except as has not had and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect.
(c) The , all plants, warehouses, distribution centers, structures and other buildings on the Owned Real Property or Leased Real Property are adequately maintained and are in good operating condition and repair for the requirements of the business of the Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments theretoits Subsidiaries as currently conducted.
(d) Other than This Section 3.17 does not relate to intellectual property, which is the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all subject of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental AuthoritySection 3.18.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
Properties. (a) Neither the Company nor any of the Company Subsidiaries owns any real property interests as of the date hereof. The Company or one has Made Available to Parent true, correct and complete copies of its Subsidiaries has good title all material real property and equipment leases (each a "Lease" and collectively, the "Leases") to all the personal properties and assets reflected in the latest audited balance sheet included in which the Company SEC Reports or a Company Subsidiary is a party as being owned of the date hereof and each amendment thereto that is in effect as of the date hereof. All Leases are in full force and effect, are valid and effective in accordance with their respective terms, and there is not, under any of such leases, any existing default or event of default (or event that with notice or lapse of time, or both, would constitute a default) by the Company or one of its Subsidiariesany Company Subsidiary, or that have been acquired after the date thereof and that are material to the Company’s business on 's knowledge, by any other party thereto that would give rise to a consolidated basis material claim against the Company or any Company Subsidiary that would have a Material Adverse Effect.
(b) Each of the Company and the Company Subsidiaries has good and valid title to, or in the case of leased properties and assets, valid leasehold interests in, all of its material tangible properties and assets, real, personal and mixed, used or held for use in its business, in each case, free and clear of any Encumbrances, except properties sold for Permitted Encumbrances or otherwise disposed as reflected in the Company Financial Statements and except for Encumbrances for Taxes not yet due and payable and such Encumbrances or other imperfections of since title, if any, that are not material in character, amount or extent, and that do not materially detract from the date thereof value, or materially interfere with the present use, of the property subject thereto or affected thereby.
(c) The equipment of the Company and each Company Subsidiary that are used in the operations of their respective businesses are (i) suitable for the uses to which they are currently employed, (ii) in good operating condition and repair, subject to normal wear and tear, (iii) regularly and properly maintained, (iv) not obsolete, dangerous or in need of renewal or replacement, except for renewal or replacement in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that consistent with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a defaultpast practice, and (v) there is no proceeding or claim pending or, to the knowledge of Company's knowledge, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received free from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildingsmaterial defects or deficiencies, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included except in the Leased Real Property and the Owned Real Property case of clauses (collectivelyi) through (v) above, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without would not have a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Primedex Health Systems Inc), Merger Agreement (Radiologix Inc)
Properties. (a) The Company has good and valid title to, or one in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its Subsidiaries has good title to all the personal real properties and tangible assets reflected in the latest audited balance sheet included in that are necessary for the Company SEC Reports to conduct its business as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)currently conducted, free and clear of all Liens other than (i) Liens for Taxes and assessments not yet delinquent or the Permitted Liens.
amount or validity of which is being contested in good faith by appropriate proceedings, (bii) Except as would mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company consistent with past practice and (iii) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, have materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company as currently conducted (“Permitted Liens”). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the tangible personal property currently used in the operation of the business of the Company is in good working order (reasonable wear and tear excepted).
(b) The Company is in compliance with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect: (i) each lease . The Company enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) aggregate, has not had and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Section 4.18(c) of the Company has made available to Purchaser correct Disclosure Letter sets forth a true and complete copies list of (i) all Leases, if any, including any amendments theretoreal property owned by the Company and (ii) all real property leased for the benefit of the Company.
(d) Other than This Section 4.18 does not relate to intellectual property, which is the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all subject of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental AuthoritySection 4.19.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (20/20 Biolabs, Inc.), Merger Agreement (Longevity Health Holdings, Inc.)
Properties. (a) The real property set forth on Section 3.13(a) of the Company Disclosure Letter constitutes all Owned Real Property. The Company or one of its Subsidiaries, has good fee simple title to each parcel of real property included in the Owned Real Property, together with all improvements thereon, free and clear of all Encumbrances, except Permitted Encumbrances. There are no tenants or other persons occupying any space in the Owned Real Property, other than any use and occupancy rights granted to third party owners, tenants or licensees pursuant to Contracts with respect to such real property entered in the ordinary course of business consistent with past practice.
(b) Section 3.13(b) of the Company Disclosure Letter contains a true and correct list of all leases or subleases of Leased Real Property entered into by the Company or any of its Subsidiaries (the “Leases”). The Company has made available to the Parent Entities true and complete in all material respects copies of each Lease.
(c) With respect to each Lease, (A) neither the Company nor any of its Subsidiaries is (and, to the Knowledge of the Company, no other party is) in material default thereunder and no event or condition has occurred or exists that, with the passage of time, the giving of notice, or both, would constitute a material default thereunder, (B) each such Lease is in full force and effect, and is the valid, binding and enforceable obligation of the Company and its Subsidiaries, and to the Knowledge of the Company, of the other parties thereto, subject to the General Enforceability Exceptions, and (C) neither the Company nor any of its Subsidiaries has received any notice of termination with respect to, and, to the Knowledge of the Company, no party has threatened to terminate, any such Lease, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, there are no pending or, to the Knowledge of the Company, threatened condemnation or eminent domain proceedings that affect any Owned Real Property or Leased Real Property.
(e) To the Company’s Knowledge, the Company has made available to Parent any and all existing title policies, title reports, surveys and zoning reports relative to the Owned Real Property that are in the Company’s or any of its Subsidiaries’ possession.
(f) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiariesto, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, leasehold or other interest in (subject to the knowledge General Enforceability Exceptions), all tangible personal property necessary for the conduct of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any business of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Propertycurrently conducted, free and clear of any Liensall Encumbrances, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authorityother than Permitted Encumbrances.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement (Black Box Corp)
Properties. (a) The Company Parent or one of its Subsidiaries has good and valid title to to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all the personal of its real properties and tangible assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material necessary for Parent and its Subsidiaries to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)conduct their respective businesses as currently conducted, free and clear of all Liens other than the Permitted Liens.
(b) Liens of Parent and its Subsidiaries. Except as has not had, and would notnot reasonably be expected to have, individually or in the aggregate, have a Parent Material Adverse Effect, the tangible personal property currently used in the operation of the business of Parent and its Subsidiaries is in good working order (reasonable wear and tear excepted).
(b) Each of Parent and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect that, individually or in the aggregate, has not had or and would not reasonably be expected to have a Company an Parent Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses . Neither Parent nor any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto andnor, to the knowledge of the CompanyParent, each any other party thereto and to the lease, is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries orsuch lease, to the knowledge of the Company, any other party thereto; (iii) and no event has occurred that or circumstance exists which would, with or without the notice, lapse of time time, or the giving of notice or both would both, constitute a breach or default under any Lease by the Company or any such lease. Each of Parent and its Subsidiaries orenjoys peaceful and undisturbed possession under all such leases, except for any such failure to the knowledge of the Companydo so that, any other party thereto; (iv) to the knowledge of the Company, the Company individually or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) aggregate, has not had and (iii), as would not reasonably be expected to have a Company Parent Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company . Neither Parent nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) of its Subsidiaries has good and indefeasible fee simple title to all of the Owned Real Propertyassigned, free and clear of any Lienspledged, (ii) there are no leasesmortgaged, licenseshypothecated, or occupancy agreements pursuant to which otherwise transferred any third party is lease or any interest therein nor has Parent or any of its Subsidiaries subleased, licensed, or otherwise granted the any Person (other than another wholly owned Subsidiary of Parent) a right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property occupy such leased real estate or any portion thereof or interest thereinthereof. This Section 5.19 does not relate to Intellectual Property matters, and which matters are the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse subject of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental AuthoritySection 5.20.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Neos Therapeutics, Inc.), Merger Agreement (Aytu Bioscience, Inc)
Properties. (a) The Company As of the Closing Date, Schedule 3.05 sets forth the address of each Real Estate Asset (or each set of such assets that collectively comprise one of its Subsidiaries has good title to all the personal properties and assets reflected operating property) that is owned in the latest audited balance sheet included fee simple (or similar concept in the Company SEC Reports as being owned any applicable jurisdiction) by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liensany Loan Party.
(b) Except as would notEach of the Administrative Borrower and its Restricted Subsidiaries has good and valid fee simple title (or similar concept in any applicable jurisdiction) to or rights to purchase, individually or valid leasehold interests in, or easements or other limited property interests in, all of their respective Real Estate Assets and has good title to its personal property and assets, in the aggregateeach case, have had or reasonably be expected to have a Company Material Adverse Effect: except (i) each lease for defects in title that do not materially interfere with its ability to conduct its business as currently conducted or license pursuant to which the Company utilize such properties and the Company Subsidiaries leases assets for their intended purposes or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by where the Company or any of its Subsidiaries or, failure to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as such title would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all Each of the Owned Real Property, free Administrative Borrower and clear of any Liens, (ii) there are no leases, licenses, its Restricted Subsidiaries owns or occupancy agreements pursuant to which any third party is granted the otherwise has a license or right to use all rights in Patents, Trademarks, Copyrights, trade secrets, know-how and any and all other intellectual property or proprietary information (“IP Rights”) used or held for use in the Owned Real Property, (iii) there are no outstanding options or rights conduct of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending orits respective businesses as presently conducted without, to the knowledge of Company, threatened, against the CompanyAdministrative Borrower, any Company Subsidiaryinfringement, the Owned Real Property misappropriation or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured other violation of the IP Rights of third parties, except to the extent any applicable Laws pertaining such failure to any buildingsown or license or have rights to use such IP Rights would not, structuresor where such infringement, fixturesmisappropriation or other violation would not, reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any none of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary Administrative Borrower or its Restricted Subsidiaries has received written notice of any existinginfringed, proposedmisappropriated or otherwise violated, orand, to the actual knowledge of the Company (without a duty Administrative Borrower, infringe, misappropriate or otherwise violate, any IP Rights of investigation any third party, except to the extent such infringement, misappropriation or inquiry)violation would not reasonably be expected to have, threatened, eminent domain individually or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryaggregate, a Material Adverse Effect.
Appears in 2 contracts
Sources: Credit Agreement (Syneos Health, Inc.), Credit Agreement (INC Research Holdings, Inc.)
Properties. (a) Neither the Company nor any Company Subsidiary owns, or has ever owned, any real property. The Company or one of its Subsidiaries and each Company Subsidiary has good title to all the personal properties and assets reflected in the latest audited balance sheet included a valid leasehold interest in the Company SEC Reports as being owned by the Company or one of its SubsidiariesProperties, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notas, individually or in the aggregate, have had or would not reasonably be expected to have a Company Material Adverse Effect: . Section 3.18(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each Company Property. All of the Company Properties are leased free and clear of all Liens, except for Permitted Liens. 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 Company Properties except for (i) each such failures to have such possession of properties or assets as, individually or in the aggregate, do not materially impair and would not reasonably be expected to materially impair, the continued use and operation of such properties or assets as currently used in the conduct of the Company’s and the Company Subsidiaries’ business as presently conducted and (ii) failures to have such possession of properties or assets as, individually or in the aggregate would not reasonably be expected to have a Company Material Adverse Effect.
(b) The Company has not received any written notice of a default from a landlord under any lease or license pursuant to which it occupies the Company Property (the “Company Leases”), which has not been cured or waived and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is Leases are valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in each case, as, individually or in the case of (ii) aggregate, has not had and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Except as would not have a Company has made available to Purchaser correct and complete copies of all LeasesMaterial Adverse Effect, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) the Company or one of the Company Subsidiaries has good valid and indefeasible fee simple title to subsisting ownership interests in all of the Owned Real Propertymaterial tangible personal property necessary to conduct their business as now conducted, free and clear of any all Liens, other than Permitted Liens and (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use tangible personal property owned by the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, Company and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary Subsidiaries is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, good operating condition and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the repair for its continued use as it has been used, subject to reasonable wear and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiarytear.
Appears in 2 contracts
Sources: Merger Agreement (Jacobs Engineering Group Inc /De/), Merger Agreement (Keyw Holding Corp)
Properties. (a) The Company Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, Parent or one of its Subsidiaries has good and valid title to, or valid leasehold or other ownership interest or rights in, each of the material real properties (except for any of Parent’s or any its Subsidiaries’ Oil and Gas Properties, which are subject to all Section 4.25 and shall not constitute a Parent Property for the personal properties and assets purposes of this Agreement) reflected in as an asset on the latest audited most recent balance sheet of Parent included in the Company Parent SEC Reports as being owned by the Company or one of its SubsidiariesDocuments (each, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business“Parent Property”), in each case free and clear of all Liens, defects or imperfections, except for Permitted Liens or Liens, defects or imperfections which do not and would not reasonably be expected to, individually or in the aggregate, materially impair the continued use and operation of the real properties to which they relate in the conduct of the business of Parent and each of its Subsidiaries as presently conducted. Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Parent Material Adverse Effect, neither Parent nor any of its Subsidiaries has received notice to the effect that there are any condemnation, expropriation or other than proceedings that are pending or, to the Permitted Liensknowledge of Parent, threatened with respect to any material portion of any of the Parent Properties.
(b) Except as would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Parent Material Adverse Effect: , (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or neither Parent nor any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred granted to any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of Person the Company) any sublease, license or other agreement that is material right to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all occupy any the Parent Property or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liensthereof, (ii) there are no leasesoutstanding options, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options rights of first offer or rights of first refusal to purchase the Owned Real any Parent Property or any portion thereof or interest therein, (iii) there are no boundary disputes relating to any Parent Property and no encroachments materially and adversely affecting the Owned Real use of any Parent Property is not currently being offered for sale, and (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real with respect to each Parent Property, all material buildings, structures, fixtures and no event improvements are in all respects adequate and sufficient and in satisfactory condition to support the operations of Parent and each of its Subsidiaries as presently conducted.
(c) Each lease pursuant to which Parent or one of its Subsidiaries has occurred that, after notice or a leasehold interest in the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending orParent Properties, to the knowledge of CompanyParent, threatened, is in full force and effect and is valid and enforceable against the Companyparties thereto in accordance with its terms, any Company Subsidiarysubject, the Owned Real Property as to enforceability, to Creditors’ Rights, except for such failure to be in full force and effect that, individually or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property aggregate, has not had and the Owned Real Property (collectively, the “Improvements”), including those pertaining would not reasonably be expected to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without have a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryParent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Parsley Energy, Inc.)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in Neither the Company SEC Reports as being owned by the Company or one of nor its SubsidiariesSubsidiary owns, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)has ever owned, free and clear of all Liens other than the Permitted Liensany real property.
(b) The Company has made available to Parent true, correct and complete copies of all leases, subleases, licenses, occupancy agreements and other agreements under which the Company or its Subsidiary uses or occupies or has the right to use or occupy, now or in the future, any real property (including all modifications, amendments, supplements, waivers and side letters thereto) (the “Real Property Leases”). Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: , (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) Property Lease is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge Knowledge of the Company, each other party thereto thereto, and is in full force and effect; , subject to the Enforceability Exceptions, (ii) there is no breach or default under any Lease all rent and other sums and charges payable by the Company or any its Subsidiary as tenants thereunder are current, (iii) no termination event or condition or uncured default of a material nature on the part of the Company or, if applicable, its Subsidiaries Subsidiary or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge Knowledge of the Company, the landlord thereunder, exists under any Real Property Lease, (iv) the Company or one of and its Subsidiaries that is either the tenant or licensee named under the Lease Subsidiary has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease leased by it free and clear of any all Liens; , except Permitted Liens and (v) neither the Company and Company Subsidiaries are in possession nor its Subsidiary has received written notice of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereofpending, and have not entered into with any other person (other than another wholly-owned subsidiary to the Knowledge of the Company, there is no threatened, condemnation with respect to any property leased pursuant to any of the Real Property Leases.
(c) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), Except as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies , each of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company and its Subsidiary owns any real property. The Company has title to, or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to a valid leasehold interest in, as applicable, all of the Owned Real Property, personal property used in their respective businesses free and clear of any Liens, except for Permitted Liens. Such personal property and leased real property (iitaken as a whole) there are no leasesis in good operating condition and repair, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest thereinordinary wear and tear and deferred maintenance excepted, and the Owned Real Property is not currently being offered except for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required failures to be removed upon termination of the term of the applicable Lease. Neither the in good operating condition and repair which would not reasonably be expected to have a Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (scPharmaceuticals Inc.), Merger Agreement (Mannkind Corp)
Properties. (a) The Company or one of its Subsidiaries Borrower and each Restricted Subsidiary has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiariesto, or that have been acquired after the date valid leasehold interests in, or easements, licenses or other limited property interests sufficient for its use thereof and that are in, all its property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes and except where the Company’s business on a consolidated basis (except properties sold failure to have such title, leasehold interest, easement, license or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notlimited property interest, individually or in the aggregate, have had or could not reasonably be expected to have a Company Material Adverse Effect: .
(ib) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” The Borrower and each such propertyRestricted Subsidiary owns or has the right to use, a “Leased Real Property”) all Intellectual Property that is valid and binding on necessary for the Company and each conduct of its Subsidiaries party thereto andbusiness as currently conducted, except to the extent any such failure to own or have the right to use such Intellectual Property, in each case, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; provided that this representation shall not be construed as a representation of non-infringement of Intellectual Property, which is addressed in the next sentence of this Section 3.05(b). To the knowledge of the CompanyBorrower and the Restricted Subsidiaries, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease Intellectual Property used by the Company Borrower or any Restricted Subsidiary in the operation of its Subsidiaries business infringes upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No claim or litigation regarding any Intellectual Property owned or used by the Borrower or any Restricted Subsidiary is pending or, to the knowledge of the CompanyBorrower or any Restricted Subsidiary, threatened against the Borrower or any Restricted Subsidiary that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. As of the Effective Date, any other party thereto; (iii) no event has occurred that with Intellectual Property that, individually or without in the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries oraggregate, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all business of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, Borrower and the Owned Real Property is not currently being offered for sale, Restricted Subsidiaries (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company the Borrower and the Domestic Subsidiaries) is owned by or any Company Subsidiarylicensed to the Borrower or another Loan Party.
Appears in 2 contracts
Sources: First Amendment (Costar Group, Inc.), Credit Agreement (Costar Group, Inc.)
Properties. (a) The Company or one As of its Subsidiaries has good title to all the personal properties and assets reflected in date of this Agreementthe First Amendment Effective Date, Schedule 3.05 sets forth the latest audited balance sheet included in the Company SEC Reports as being address of each parcel of real property that is owned by the Company or one leased to any Loan Party. Each of its Subsidiaries, or that have been acquired after the date thereof such leases and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) subleases is valid and binding on the Company and each of enforceable in accordance with its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto terms and is in full force and effect; , and no default by any party to any such lease or sublease exists (iiafter giving effect to any applicable notice requirement or grace period) there is except to the extent any such failure of such leases to be in full force and effect, or any default, could not reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect. Each of the Loan Parties and each of its Subsidiaries has good and indefeasible title to, or valid leasehold interests in, all of its real and personal property, except to the extent free of all Liens other than those permitted by Section 6.02. To the Loan Parties’ knowledge, no breach holding, injunction, decision or default under judgment has been rendered by any Lease Governmental Authority and none of the Loan Parties or any of their respective Subsidiaries has entered into any settlement stipulation or other agreement (except license agreements in the ordinary course of business) which would cancel the validity of the Loan Parties’ or any of their Subsidiaries’ rights in any Intellectual Property owned by the Company or any of its Subsidiaries or(the “Borrower Intellectual Property”) in any respect that would reasonably be expected to have a Material Adverse Effect. To the Loan Parties’ knowledge, to no pending claim has been asserted or threatened in writing by any Person challenging the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease use by the Company or any of its Subsidiaries orof any Borrower Intellectual Property or the validity of any Borrower Intellectual Property, except in each case as would not reasonably be expected to result inhave a Material Adverse Effect. To the knowledge Loan Parties’ knowledge, the use of the Company, any other party thereto; (iv) to the knowledge of the Company, Borrower Intellectual Property by the Company or one of its Subsidiaries that is either does not infringe on the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear rights of any Liens; and (v) the Company and Company Subsidiaries are other Person in possession a manner that would reasonably be expected to have a Material Adverse Effect, free of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (all Liens other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the those permitted by Section 6.02. The Company and its Subsidiaries, Subsidiaries have taken as a whole, and all commercially reasonable actions that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case exercise of (ii) and (iii)their reasonable business judgment should be taken to protect the Borrower Intellectual Property, as including Borrower Intellectual Property that is confidential in nature, except where the failure to do so would not reasonably be expected to have a Company Material Adverse Effect.
(cb) The Company has made available to Purchaser correct Each Loan Party and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company each Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licensesowns, or occupancy agreements pursuant is validly licensed to which any third party is granted the right to use the Owned Real Propertyuse, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real all Material Intellectual Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in defaultused in, or has ever been in defaultnecessary to conduct, under any restrictive covenants affecting the Owned Real Propertyits business as currently conducted, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending orand, to the knowledge of Companyeach Loan Party, threatenedand the use thereof byconduct of each Loan Party and each Subsidiary of its business does not infringe in any material respect upon the intellectual property, against the Companymisappropriate or otherwise violate, any Company Subsidiaryand has not infringed, misappropriated or otherwise violated, the Owned Real Intellectual Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice rights of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryPerson.
Appears in 2 contracts
Sources: Credit Agreement (Bed Bath & Beyond Inc), Credit Agreement (Bed Bath & Beyond Inc)
Properties. (a) Section 4.16(a) (Part I) of the Company Disclosure Letter sets forth a list of the address of each real property owned, leased (as lessee or sublessee), including ground leased, by the Company or any Company Subsidiary as of the date of this Agreement (all such real property interests, together with all buildings, structures and other improvements and fixtures located on or under such real property and all easements, rights and other appurtenances to such real property, are individually referred to herein as a “Company Property” and collectively referred to herein as the “Company Properties”). Section 4.16(a) (Part II) of the Company Disclosure Letter sets forth a list of the address of each facility and real property which, as of the date of this Agreement, is under contract by the Company or a Company Subsidiary for purchase or which is required under a binding contract to be leased or subleased by the Company or a Company Subsidiary after the date of this Agreement.
(b) The Company or one a Company Subsidiary owns good and marketable fee simple title or leasehold title (as applicable) to each of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its SubsidiariesProperties, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)each case, free and clear of all Liens, except for Company Permitted Liens other than the Permitted Liens.
(b) Except as that have not had and would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: . For the purposes of this Agreement, “Company Permitted Liens” shall mean any (i) each lease or license pursuant Liens relating to which any Indebtedness incurred in the Company and the Company Subsidiaries leases or licenses any real property (collectivelyordinary course of business consistent with past practice, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) Liens that result from any statutory or other Liens for Taxes or assessments that are not yet subject to penalty or the validity of which is being contested in good faith by appropriate proceedings and for which there is no breach are adequate reserves on the financial statements of the Company (if such reserves are required pursuant to GAAP), (iii) Liens imposed or default under promulgated by Law or any Lease Governmental Authority, including zoning regulations, permits and licenses, (iv) Liens that are disclosed on the existing Company Title Insurance Policies made available by or on behalf of the Company or any of its Subsidiaries or, Company Subsidiary to Parent prior to the knowledge date hereof and, with respect to leasehold interests, Liens on the underlying fee or leasehold interest of the Companyapplicable ground lessor, any other party thereto; (iii) no event has occurred that with lessor or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries orsublessor, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) any cashiers’, landlords’, workers’, mechanics’, carriers’, workmen’s, repairmen’s and materialmen’s liens and other similar Liens imposed by Law and incurred in the Company and Company Subsidiaries ordinary course of business consistent with past practice that are not yet subject to penalty or the validity of which is being contested in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereofgood faith by appropriate proceedings, and have not entered into with (vi) any other person (other than another wholly-owned subsidiary Liens that do not materially impair the value of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment operation of any Leased Real Property or the Owned Real applicable Company Property as heretofore currently used in the conduct of the business of any Company or any Company Subsidiaryand operated.
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Trust III, Inc.), Merger Agreement (American Realty Capital Properties, Inc.)
Properties. (a) The Company Either Parent or one a Parent Subsidiary owns fee simple title (with respect to jurisdictions that recognize such form of its Subsidiaries has good title or substantially similar title with respect to all other jurisdictions) or leasehold title (as applicable) or air rights to each of the personal properties and assets reflected Parent Properties, in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)each case, free and clear of all Liens, except for Parent Permitted Liens other than the none of which Parent Permitted Liens.
(b) Except as Liens have had and would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Parent Material Adverse Effect: .
(b) Since January 1, 2021, neither Parent nor any of Parent Subsidiaries has received (i) each lease written notice that any certificate, permit or license pursuant to which the Company and the Company Subsidiaries leases or licenses from any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge Governmental Authority having jurisdiction over any of the CompanyParent Properties or any agreement, each easement or other party thereto right of an unlimited duration that is necessary to permit the lawful use and operation of the buildings and improvements on any of the Parent Properties or that is necessary to permit the lawful use and operation of all utilities, parking areas, retention ponds, driveways, roads and other means of egress and ingress to and from any of the Parent Properties is not in full force and effect; effect as of the date of this Agreement (ii) there is no breach or default under of any Lease by the Company pending written threat of modification or cancellation of any of its Subsidiaries orsame), to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease except for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported such failures to be leased in full force and effect that, individually or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii)aggregate, as would not reasonably be expected to have a Company Parent Material Adverse Effect, or (ii) written notice of any uncured violation of any Laws affecting any of the Parent Properties which, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) The Company has made available Parent and any Parent Subsidiaries have valid and enforceable title to, or a valid and enforceable leasehold interest in, or other right to Purchaser correct use, all material personal property owned, used or held for use by them as of the date of this Agreement (other than property owned by tenants and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than used or held in connection with the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”applicable tenancy), neither except as individually or in the Company nor aggregate has not had and would not reasonably be expected to have a Parent Material Adverse Effect. None of Parent’s or any Company Subsidiary owns Parent Subsidiaries’ ownership of or leasehold interest in any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title such personal property is subject to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant except for Parent Permitted Liens and Liens that have not and would not reasonably be expected to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such have a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental AuthorityParent Material Adverse Effect.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Kimco Realty Corp), Merger Agreement (RPT Realty)
Properties. (a) The Company or one of and its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)have, free and clear of all Liens mortgages, deeds of trust, liens, security interests, pledges, leases, conditional sale contracts, charges, privileges, easements, rights of way, reservations, options, rights of first refusal and other than the encumbrances (collectively, “Liens”) except for Permitted Liens, title to or valid leasehold interests in the inventory, equipment and other tangible and intangible property used or held for use in the conduct of their respective businesses, in each case as necessary to permit the Company and its Subsidiaries to conduct their respective businesses as currently conducted in all material respects.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which Each of the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries has complied in all material respects with the terms of all leases to which it is a party thereto and, to the knowledge of the Company, each other party thereto and or under which it is in full force occupancy and effect; (ii) there is no breach or default under any Lease by all leases to which the Company or any of its Subsidiaries or, to the knowledge is a party or under which it is in occupancy are in full force and effect. Each of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company its Subsidiaries are in enjoys peaceful and undisturbed possession of the properties or assets purported to be leased or licensed thereunderunder its leases, except where the failure to have such possession has not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, had and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected likely to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary of its Subsidiaries has received from any Governmental Authority written notice violated the terms of any uncured violation easement, right-of-way, prescriptive right or way of any applicable Laws pertaining to any buildingsnecessity, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property whether or not of record (collectively, the an “ImprovementsEasement”), including those pertaining except any such violations that, individually or in the aggregate, have not had and are not reasonably likely to health have a Company Material Adverse Effect. Except as would not reasonably be likely to have a Company Material Adverse Effect, all Easements in favor of the Company or any of its Subsidiaries are valid and safety, zoning, building, enforceable and construction requirements grant the rights purported to be granted thereby and all rights necessary thereunder for the disabledoperation of the respective businesses of the Company and its Subsidiaries. There are no spatial gaps in the Easements in favor of the Company or any of its Subsidiaries that would reasonably be likely to have a Company Material Adverse Effect and all parts of the pipeline assets which constitute a portion of the assets of the Company or any of its Subsidiaries are located either on property which is owned in fee by the Company or one of its Subsidiaries or on property which is subject to an Easement in favor of the Company or one of its Subsidiaries. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary its Subsidiaries has received written any notice from any person disputing or challenging its ownership of any existingfee interests or Easement, proposed, or, other than disputes or challenges that have not had or are not reasonably likely to the actual knowledge of the have a Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryMaterial Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Chesapeake Utilities Corp), Merger Agreement (Florida Public Utilities Co)
Properties. (a) The Company or one Disclosure Schedule contains a complete and accurate listing of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being real property owned by the Company and its Subsidiaries (the "Company Owned Real Property"). The Company or one a Subsidiary thereof has good, valid and marketable title to all of its Subsidiariesthe Company Owned Real Property and all of their other material properties and assets, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), each case free and clear of all Liens, except (A) imperfections of title and encumbrances that are not material in character, amount or extent and that do not, in any material respect, detract from the value of, or, in any material respect, interfere with the present use of, such properties or assets, (B) Liens for Taxes not yet due and payable or being contested in good faith by appropriate proceedings, (C) statutory or common law Liens under leases or rental agreements which are confined to the premises or property leased or rented, (D) deposits or pledges made in connection with, or to secure payment of, worker's compensation, unemployment insurance or old age pension programs mandated under applicable Law, (E) statutory or common law Liens in favor of carriers, warehousemen, mechanics and materialmen and other than statutory or common law Liens to secure claims for labor, materials or supplies, (F) purchase money security interests incurred in connection with the Permitted Liens.
purchase of property or assets that are reflected in the financial statements included in the SEC Documents filed prior to the date of this Agreement that are limited to the property or assets so acquired, and (bG) with respect to Company Owned Real Property only, Liens reflected in title records. Except as does not have and would notreasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject leased by the Company or any of its Subsidiaries (the "Company Leased Property"). Except as does not have and would not reasonably be expected to have, individually or in the aggregate, a Lease Company Material Adverse Effect, (A) the Company or one of its Subsidiaries has the right to use and occupancy of the Company Leased Property for the full term of the respective Lease free lease or sublease relating thereto, (B) each such lease or sublease is a legal, valid and clear binding agreement, enforceable in accordance with its terms, of the Company or a Subsidiary thereof and of the other parties thereto, and there is no, nor has the Company or any Liens; of its Subsidiaries received notice of, any material default thereunder, and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (ivC) neither the Company nor any Company Subsidiary is in default, or of its Subsidiaries has ever been in default, assigned its interest under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice such lease or the lapse of time sublease or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or sublet any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiarypremises covered thereby.
Appears in 2 contracts
Sources: Merger Agreement (Select Medical Corp), Merger Agreement (EGL Holding CO)
Properties. (a) The Company or one Section 3.17(a) of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being Disclosure Letter sets forth a true, correct and complete list of all real property owned by the Company or one any of its Subsidiaries, or that have been acquired after Subsidiaries (the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business“Owned Real Property”), free and clear of all Liens other than the Permitted Liens.
(b) . Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material fee simple title to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”). Except as set forth in Section 3.17(a) of the Company Disclosure Letter, neither the Company nor any Company Subsidiary owns of its Subsidiaries owns, holds, has granted or is obligated under any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all option, right of the Owned Real Propertyfirst offer, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal or other contractual right to purchase sell or dispose of any of the Owned Real Property or any portion thereof or interest thereintherein that is individually or in the aggregate material to the Company and the Company Subsidiaries taken as a whole
(b) Except individually or in the aggregate, as has not had, and would not reasonably be expected to have, a Material Adverse Effect, the Owned Company or one or more of its Subsidiaries is the lessee of all leasehold estates reflected in the balance sheet of the Company included in the Company’s Annual Report on Form 10-K for the fiscal year ended August 31, 2013 or acquired after August 31, 2013 (except for leases that have expired by their terms since the date thereof or been assigned, terminated or otherwise disposed of in the ordinary course of business consistent with past practice) and is in possession of the properties purported to be leased thereunder, and to the knowledge of the Company, each such lease is in full force and effect, is enforceable in accordance with its terms except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity, and is valid without default (including any event which with notice or lapse of time or both would become a default) thereunder by the lessee or to the knowledge of Company, the lessor. No notices of default under any such lease have been received by any Acquired Company that have not been resolved.
(c) Section 3.17(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all leases, subleases, modifications, amendments, waivers, side letters, guaranties and other agreements relating thereto, under which any Acquired Company uses or occupies or has the right to use or occupy, now or in the future, any material real property (the “Real Property is not currently being offered for saleLeases,” each real property leased under a Real Property Lease, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting together with the Owned Real Property, referred to as a “Real Property”). The Company has, prior to the date hereof, made available to Parent true and no correct copies of the Real Property Leases. No termination event has occurred that, after notice or condition or uncured default of a material nature on the lapse part of time or both, would constitute such a default, and (v) there is no proceeding or claim pending any Acquired Company or, to the knowledge of Company, threatened, against the Company, the landlord thereunder, exists under any Real Property Lease. Each Acquired Company Subsidiary, has a valid leasehold interest in each parcel of material real property leased by it and each Acquired Company has valid fee simple title to the Owned Real Property or the Improvements (as defined below) or personal property thereonowned by it, in any court or before any Governmental Authorityeach case free and clear of all Liens, except Permitted Liens. The Owned Real Property, leasehold estates and Real Property Leases are sufficient for the purposes for which they are presently being used in the businesses of the Acquired Companies as now conducted.
(ed) Neither Except as disclosed in Section 3.17(d) of the Company nor Disclosure Letter, the improvements owned or leased by the Acquired Company and located on any Company Subsidiary has received from any Governmental Authority written notice parcel of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property in all material respects are in good working order and repair, except for ordinary wear and tear. All such improvements and the Owned Real Property (collectivelyoccupancy, the “Improvements”), including those pertaining to health use and safety, operation of such improvements may lawfully be used under all applicable zoning, building, fire and construction requirements safety Laws (either as of right, by special permit or variance, or as a grandfathered use), except as would not reasonably be expected to, individually or in the aggregate, materially and adversely affect the disabled. Neither use or operation of the Real Property, and none of the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary its Subsidiaries has received written notice of noncompliance with any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiarysuch Laws.
Appears in 2 contracts
Sources: Merger Agreement (Ingredion Inc), Merger Agreement (Penford Corp)
Properties. (a1) The Company or one of its Subsidiaries has (i) good and marketable fee title to the real property owned in fee by the Company or any of its Subsidiaries (collectively, the "Owned Properties") and (ii) good and valid leasehold title or other occupancy right to the real property leased, subleased or licensed by the Company or any of its Subsidiaries (collectively, the "Leased Properties") (the Owned Properties and Leased Properties being sometimes referred to herein collectively as the "Company Properties"), in each case free and clear of all the personal properties and assets reflected options to purchase or lease (in the latest audited balance sheet included case of the Owned Properties), leases, subleases, rights of first offer, conditions of limitation, easements, Liens, covenants, rights-of-way and other restrictions (collectively, "Title Matters"), except for such Liens and Title Matters, which individually or in the aggregate, do not have a Material Adverse Effect or which do not materially and adversely affect the current use or value of any Company SEC Reports Properties significant to the Company and its Subsidiaries taken as being owned by a whole.
(2) Each agreement under which real property is leased, subleased or licensed to the Company or one of its SubsidiariesSubsidiaries (collectively, the "Company Leases") is in full force and effect in accordance with its respective terms and the Company or that have been acquired after one of its Subsidiaries is the date thereof holder of the lessee's or tenant's interest thereunder and that are material to there exists no default under any of the Company’s business on Company Leases by the Company or any of its Subsidiaries and no circumstance exists which, with the giving of notice, the passage of time or both could result in such a consolidated basis (default, except properties sold for such matters or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notcircumstances which, individually or in the aggregate, have had or reasonably be expected to do not have a Company Material Adverse Effect: . Except as set forth in Section 3.14(b) of the Company Disclosure Schedule, the consummation of the Merger or other transactions contemplated hereby does not violate the terms of any of the Company Leases, other than violations, which individually or in the aggregate do not have a Material Adverse Effect. Except as set forth in Section 3.14(b) of the Company Disclosure Schedule, there are no Company Leases subject to any Lien, sublease, assignment, license or other agreement granting to any third party any interest in such Company Lease or any right to the use or occupancy of any Leased Property, except for any of the foregoing matters which, individually or in the aggregate, do not have a Material Adverse Effect.
(i3) each lease or license pursuant to which Each of the Company and the Company its Subsidiaries leases has all permits necessary to own or licenses any real property (collectively, the “Leases” operate its Owned Real Property and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto Property as currently owned, and, to the knowledge of the Company, each no such permits will be required, solely as a result of the Merger or the other party thereto and is transactions contemplated hereby, to be issued after the Closing in full force and effect; (ii) there is no breach or default under any Lease by order to permit the Company following the Merger to continue to own or operate such Company Properties, other than any such permits the absence of which would not reasonably be expected to have a Material Adverse Effect. Except as set forth in Section 3.14(b) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has received, with respect to any Owned Real Property or Leased Real Property, any written notice of default or any written notice of noncompliance with respect to applicable federal, state, local and foreign laws and regulations relating to zoning, building, fire, use restriction or safety or health codes which have not been remedied in all respects which has a Material Adverse Effect. There is no pending or, to the knowledge of the Company, threatened condemnation or other governmental taking of any other party thereto; (iii) no event has occurred that with of the Owned Real Property or without the lapse of time Leased Real Property, which would have a Material Adverse Effect. All material buildings, structures, improvements and fixtures located on, under, over or the giving of notice or both would constitute a breach or default under any Lease by within the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its SubsidiariesProperties, taken as a whole, (A) are in good operating condition and that relates to the use or occupancy of all or any portion repair and are structurally sound and free of any real property subject to a Lease, except, in the case of (ii) material defects; and (iii)B) are suitable, as would not reasonably be expected to have a Company Material Adverse Effectsufficient and appropriate in all respects for their current and contemplated uses.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Xtra Corp /De/), Merger Agreement (Wheels Mergerco LLC)
Properties. (a) The Except as would not reasonably be expected to have, individually or in the aggregate, a Company or one of Material Adverse Effect, the Company and its Subsidiaries has have good title to to, or valid leasehold interests in, all property (including the personal properties Real Property) and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of necessary to operate its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens. To the Knowledge of the Company, each such property or asset is in all material respects in sufficient operable condition and repair to conduct the Company’s business, subject to normal wear and tear, ongoing repairs or refurbishments conducted in the ordinary course of business.
(b) Except as would notAs of the date hereof, individually or in Section 4.14(b) of the aggregate, have had or reasonably be expected to have Company Disclosure Schedule sets forth a Company Material Adverse Effect: true and complete list of (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any all real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease owned by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), and (ii) all real property leased by or for the benefit of, or occupied by, the Company or any of its Subsidiaries for which the Company or its Subsidiaries made gross rental payments to the lessor of at least $1,000,000 in the Company’s 2022 fiscal year (the “Leased Real Property” and, together with the Owned Real Property, the “Real Property”). The Company has delivered or made available to Parent copies of all material leases, subleases or licenses, and all material amendments and modifications thereof, with respect to the Leased Real Property (each, a “Real Property Lease”).
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Real Property Lease is valid and in full force and effect, (ii) neither the Company nor any Company Subsidiary owns any real property. The Company or of its Subsidiaries, nor to the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all Knowledge of the Owned Company any other party to a Real PropertyProperty Lease, free has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a material default under the provisions of such Real Property Lease, and clear neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any LiensReal Property Lease, (iiiii) there are no leasesthe Company and its Subsidiaries have not (A) subleased, licenses, licensed or occupancy agreements pursuant to which otherwise granted any third party is granted Person the right to use the Owned or occupy any Leased Real Property, or (iiiB) collaterally assigned or granted any other security interest in any Real Property Lease or any interest therein, (iv) the Company or its Subsidiary has not leased or otherwise granted to any Person the right to use or occupy any Owned Real Property or any portion thereof, and (v) there are no outstanding options options, rights of first offer or rights of first refusal to purchase the any Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements is a party to any agreement or option to purchase any real property or interest therein.
(d) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company has not received any written notice that all or any portion of Real Property is subject to any governmental order to be sold or is being condemned, expropriated or otherwise taken by any Governmental Authority with or without payment of compensation therefor and to the Knowledge of the Leased Real Property that may be required to be removed upon termination Company, there is no such governmental order threatened against all or any portion of the term of the applicable Lease. Neither the Company nor Real Property.
(e) Except for any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge Permitted Liens and as set forth in Section 4.14(e) of the Company (without a duty of investigation Disclosure Schedule and except as has not had and would not reasonably be expected to have, individually or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all aggregate, a Company Material Adverse Effect, (i) there are no contractual or legal restrictions that prevent the Company or any part of its Subsidiaries from using any Leased Real Property or Owned for its current use and (ii) all structures and other buildings on the Real Property or that would prevent or hinder are in good operating condition and sufficient for the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct operation of the business of any the Company and its Subsidiaries as currently conducted and none of such structures or any buildings is in need of maintenance or repairs except for ordinary, routine maintenance and repairs, and except for ordinary wear and tear.
(f) The Real Property comprises all of the material real property used or intended to be used in, or otherwise related to, the business of the Company Subsidiaryand its Subsidiaries as currently conducted.
Appears in 2 contracts
Sources: Merger Agreement (Chase Corp), Merger Agreement (Chase Corp)
Properties. (a) The Company or one As of its Subsidiaries has good title to all the personal properties and assets reflected in date of the latest audited balance sheet included in First Amendment Effective Date, Schedule 3.05 sets forth the Company SEC Reports as being address of each parcel of real property that is owned by the Company or one leased to any Loan Party. Each of its Subsidiaries, or that have been acquired after the date thereof such leases and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) subleases is valid and binding on the Company and each of enforceable in accordance with its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto terms and is in full force and effect; , and no default by any party to any such lease or sublease exists (iiafter giving effect to any applicable notice requirement or grace period) there is except to the extent any such failure of such leases to be in full force and effect, or any default, could not reasonably be expected, either individually or in the aggregate, to result in a Material Adverse Effect. Each of the Loan Parties and each of its Subsidiaries has good and indefeasible title to, or valid leasehold interests in, all of its real and personal property, free of all Liens other than those permitted by Section 6.02. To the Loan Parties’ knowledge, no breach holding, injunction, decision or default under judgment has been rendered by any Lease Governmental Authority and none of the Loan Parties or any of their respective Subsidiaries has entered into any settlement stipulation or other agreement (except license agreements in the ordinary course of business) which would cancel the validity of the Loan Parties’ or any of their Subsidiaries’ rights in any Intellectual Property owned by the Company or any of its Subsidiaries or(the “Borrower Intellectual Property”) in any respect that would reasonably be expected to have a Material Adverse Effect. To the Loan Parties’ knowledge, to no pending claim has been asserted or threatened in writing by any Person challenging the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease use by the Company or any of its Subsidiaries orof any Borrower Intellectual Property or the validity of any Borrower Intellectual Property, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest except in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Material Adverse Effect. To the Loan Parties’ knowledge, the use of any Borrower Intellectual Property by the Company or its Subsidiaries does not infringe on the rights of any other Person in a manner that would reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have taken all commercially reasonable actions that in the exercise of their reasonable business judgment should be taken to protect the Borrower Intellectual Property, including Borrower Intellectual Property that is confidential in nature, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(cb) The Company has made available to Purchaser correct Each Loan Party and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company each Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licensesowns, or occupancy agreements pursuant is validly licensed to which any third party is granted the right to use the Owned Real Propertyuse, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real all Material Intellectual Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in defaultused in, or has ever been in defaultnecessary to conduct, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending orits business as currently conducted, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtureseach Loan Party, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of each Loan Party and each Subsidiary of its business does not infringe, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the business Intellectual Property rights of any Company or any Company Subsidiaryother Person.
Appears in 2 contracts
Sources: Credit Agreement (Bed Bath & Beyond Inc), Credit Agreement (Bed Bath & Beyond Inc)
Properties. (a) The Company or one of Issuer and its Subsidiaries has have good title to to, or good and valid leasehold interests in, all the personal properties property and assets reflected in on the latest audited balance sheet included in the Company SEC Reports as being owned by the Company Issuer Balance Sheet or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (Issuer Balance Sheet Date, except properties sold or otherwise as have been disposed of since the date thereof Issuer Balance Sheet Date in the ordinary course Ordinary Course of business)Business and in compliance with this Agreement, in each case free and clear of all Liens (other than the Permitted Liens). The properties and assets owned or leased by Issuer and its Subsidiaries constitute all of the properties and assets necessary for, and used or useful in, the conduct of their respective businesses in the places and in such manner in which such businesses are currently being conducted. Neither Issuer nor any of its Subsidiaries owns or has ever owned any interest in real property.
(bi) Except Each lease, sublease, license or other use or occupancy agreement (each, a “Lease”) under which Issuer or any of its Subsidiaries leases, subleases, licenses or otherwise uses or occupies any real property (whether as lessor or lessee) is valid and in full force and effect and (ii) neither Issuer nor any of its Subsidiaries, nor to Issuer’s Knowledge any other party to a Lease, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would notconstitute a breach or default under the provisions of such Lease, except for those breaches or defaults that, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company are not and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have be material to Issuer and its Subsidiaries, and neither Issuer nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Lease. Section 3.14(b) of the Issuer Disclosure Schedule sets forth a Company Material Adverse Effect.
true, correct and complete list of all Leases to which Issuer or any of its Subsidiaries is a party, including all amendments, extensions, renewals and guarantees with respect thereto, in each case identifying the tenant or lessee and the landlord or lessor under each such Lease and the address of the real property associated with such Lease (c) The Company such property, together with all rights, title and interest of Issuer or any Subsidiary in and to leasehold improvements relating thereto, including security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “Leased Real Property”). Issuer has made available to Purchaser (in each case, together with all amendments, modifications, supplements, waivers or other changes thereto) true, correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company performance by Issuer of this Agreement and the transactions contemplated hereby will not result in the termination of, or in any increase of any material amounts payable under, any Lease or any material rights under any Lease or will require the applicable Company Subsidiary (i) has good and indefeasible fee simple title Consent from any party to all of the Owned any such Lease other than Issuer. With respect to any Leased Real Property, free Issuer and clear any of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, its Subsidiaries enjoys peaceful and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any undisturbed possession of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryProperty.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ONCOSEC MEDICAL Inc), Stock Purchase Agreement (ONCOSEC MEDICAL Inc)
Properties. (a) The Company or one of its Subsidiaries has good and valid title to to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all the personal of its real properties and tangible assets reflected in the latest audited balance sheet included in that are necessary for the Company SEC Reports and its Subsidiaries to conduct their respective businesses as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)currently conducted, free and clear of all Liens other than (i) Liens for current taxes and assessments not yet past due or the Permitted Liens.
amount or validity of which is being contested in good faith by appropriate proceedings, (bii) Except as would mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or such Subsidiary consistent with past practice, (iii) Liens arising through or under any landlords of leased real property with respect to such landlord’s interest in such leased real property (and not through or under the Company or one of its Subsidiaries) to the extent such Liens are permitted under the terms of the applicable lease and (iv) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, have materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted. Except as has not had or and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect: (i) each lease or license pursuant to which Effect on the Company, the tangible personal property currently used in the operation of the business of the Company and the Company its Subsidiaries leases or licenses any real property is in good working order (collectively, the “Leases” reasonable wear and each such property, a “Leased Real Property”tear excepted).
(b) is valid and binding on Each of the Company and each of its Subsidiaries party thereto andhas complied with the terms of all leases to which it is a party, to the knowledge of the Company, each other party thereto and is all such leases are in full force and effect; (ii) there is no breach , except for any such noncompliance or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported failure to be leased in full force and effect that, individually or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) aggregate, has not had and (iii), as would not reasonably be expected to have a Material Adverse Effect. Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary of its Subsidiaries owns or has received from ever owned any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabledreal property. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge Section 3.18(c) of the Company (without Disclosure Letter sets forth a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking true and complete list of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder real property leased for the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct benefit of the business of any Company or any Company Subsidiaryof its Subsidiaries. This Section 3.18 does not relate to Intellectual Property or Intellectual Property Rights, which is the subject of Section 3.19.
Appears in 2 contracts
Sources: Merger Agreement (Aruba Networks, Inc.), Merger Agreement (Hewlett Packard Co)
Properties. (a) The Except as would not reasonably be expected to have, individually or in the aggregate, a Company or one of Material Adverse Effect, the Company and its Subsidiaries has good have valid title to, or valid leasehold interests in, or otherwise have the right to use pursuant to a valid and enforceable lease, license or similar contractual arrangement, all the personal properties real property and assets reflected used in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business and reflected on a consolidated basis (the Company Balance Sheet or acquired after the Company Balance Sheet Date, except properties sold or otherwise as have been disposed of since the date thereof Company Balance Sheet Date in the ordinary course of business)business and in compliance with this Agreement, in each case, free and clear of all Liens other than the Permitted Liens.
(b. Section 4.15(a) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which of the Company Disclosure Schedule sets forth a complete and correct list as of the Company Subsidiaries leases or licenses any date hereof of all material real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is owned in full force and effect; (ii) there is no breach or default under any Lease fee by the Company or any of its Subsidiaries or, to (including the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereofaddress), and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase such owned real property.
(b) Except as would not reasonably be expected to have, individually or in the Owned Real Property aggregate, a Company Material Adverse Effect, (i) each lease, sublease or license (each, a “Lease”) under which the Company or any portion thereof of its Subsidiaries leases, subleases or interest therein, licenses any real property is valid and the Owned Real Property is not currently being offered for sale, in full force and effect and (ivii) neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company Subsidiary is in defaultany other party to a Lease, has violated any provision of, or has ever been in defaulttaken or failed to take any act which, under any restrictive covenants affecting the Owned Real Propertywith or without notice, and no event has occurred that, after notice or the lapse of time time, or both, would constitute a breach or default under the provisions of such a defaultLease or permit termination, modification or acceleration by any third party thereunder, and (v) there is no proceeding or claim pending or, to the knowledge Knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither neither the Company nor any Company Subsidiary of its Subsidiaries has received from notice that it has breached, violated or defaulted under any Governmental Authority written Lease, in each case, other than such items, if any, that have been cured. Section 4.15(b) of the Company Disclosure Schedule sets forth a complete and correct list as of the date hereof of the address of each material parcel of real property subject to a Lease to which the Company or any of its Subsidiaries is a party and the identity of the lessor and lessee.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the plants, buildings, structures and equipment owned, leased, licensed or otherwise used or held for use by the Company or any of its Subsidiaries have no material defects and have been maintained consistent with standards generally followed in the industry (ordinary wear and tear excepted), (ii) to the Knowledge of the Company, none of the Company or any of its Subsidiaries has received any notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, pending or Improvements threatened condemnation Action with respect to any of the Leased Real Property that may be required real property it owns, leases, licenses or otherwise occupies and (iii) no Person leases, subleases, licenses or otherwise has the right to be removed upon termination use or occupy any of the term of real property referred to in Section 4.15(a) or Section 4.15(b) other than the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiarySubsidiary of the Company.
Appears in 2 contracts
Sources: Merger Agreement (ProFrac Holding Corp.), Merger Agreement (FTS International, Inc.)
Properties. (a) The Company or one Each of the Borrower and its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiariesto, or that have been acquired after the date thereof valid leasehold interests in, all its real and that are personal property material to its business, subject to no Liens except those in favor of the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free Administrative Agent and clear of all Liens other than the Permitted Liens, and except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.
(b) Except Schedule 3.5(b) describes all of the Leases (whether or not --------------- material) in effect as would not, individually or in of the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: Effective Date (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and copies of each of its Subsidiaries party thereto andwhich have been provided to the Administrative Agent), each of which to the knowledge of the CompanyBorrower and the Subsidiary that is a party thereto, each other (i) has been duly executed and delivered by and constitutes the legal, valid and binding obligation of, the Borrower or the Subsidiary, as the case may be, party thereto in accordance with its terms, except for creditors' rights and equitable principles, (ii) is in full force and effect; (ii) effect and there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; thereunder and (iii) no event has occurred that with not been amended or without the lapse of time or the giving of notice or both would constitute a breach or default under modified, nor any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Leaseprovisions thereof waived, except, in each case, for matters affecting the case of (ii) enforceability, effectiveness, breaches or amendments and (iii), as would modifications which in the aggregate are not reasonably be expected likely to have result in a Company Material Adverse Effect.
(c) The Company has made available Each of the Borrower and its Subsidiaries owns, or is licensed to Purchaser correct use, all trademarks, trade names, copyrights, patents and complete copies other intellectual property material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of all Leasesany other Person, if anyexcept for any such infringements that, including any amendments theretoindividually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(d) Other than The place of business or chief executive office of the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Borrower and certain land located each Subsidiary is at the location shown on Schedule 3.5(d) or at such --------------- other locations as disclosed to the Administrative Agent in Batavia, Illinois (writing after the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real propertydate hereof. The Company or federal employee identification number for the applicable Company Subsidiary (i) has good Borrower and indefeasible fee simple title to all each of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party its Subsidiaries is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”set forth on Schedule 3.5(d), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.---------------
Appears in 1 contract
Sources: Credit Agreement (Us Concrete Inc)
Properties. (a) The Either Absorbing Company or one an Absorbing Company Subsidiary owns good and valid fee simple title or leasehold title (as applicable) to each of its Subsidiaries has good title to all the personal properties and assets reflected Absorbing Company Properties, in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)each case, free and clear of all Liens, except for Absorbing Company Permitted Liens other than the Permitted Liens.
(b) Except as would notand as, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereofhad, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a have, an Absorbing Company Material Adverse Effect.
(b) Neither Absorbing Company nor any of the Absorbing Company Subsidiaries has received since January 1, 2015 (i) written notice that any certificate, permit or license from any Governmental Authority having jurisdiction over any of the Absorbing Company Properties or any agreement, easement or other right of an unlimited duration that is necessary to permit the lawful use and operation of the buildings and improvements on any of the Absorbing Company Properties or that is necessary to permit the lawful use and operation of all utilities, parking areas, retention ponds, driveways, roads and other means of egress and ingress to and from any of the Absorbing Company Properties is not in full force and effect as of the date of this Agreement (or of any pending written threat of modification or cancellation of any of same), except for such failures to be in full force and effect that, individually or in the aggregate, has not had, and would not reasonably be expected to have, an Absorbing Company Material Adverse Effect, or (ii) written notice of any uncured violation of any Laws affecting any of the Absorbing Company Properties which, individually or in the aggregate, has not had, and would reasonably be expected to have, an Absorbing Company Material Adverse Effect.
(c) The Except for any of the foregoing as, individually or in the aggregate, has not had, and would not reasonably be expected to have, an Absorbing Company Material Adverse Effect, no condemnation, eminent domain or similar proceeding is pending with respect to any owned Absorbing Company Property, and neither Absorbing Company nor any Absorbing Company Subsidiary has made available received since January 1, 2015 any written notice to Purchaser correct the effect that (i) any condemnation or rezoning proceedings are threatened with respect to any of the Absorbing Company Properties or (ii) any zoning regulation or ordinance (including with respect to parking), Board of Fire Underwriters rules, building, fire, health or other Law has been violated (and complete copies of all Leases, if any, including remains in violation) for any amendments theretoAbsorbing Company Property.
(d) Other Absorbing Company and the Absorbing Company Subsidiaries have good and valid title to, or a valid and enforceable leasehold interest in, or other right to use, all personal property owned, used or held for use by them as of the date of this Agreement (other than property owned by tenants and used or held in connection with the real property commonly known applicable tenancy), except as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇individually or in the aggregate, ▇▇▇▇▇▇▇▇▇▇▇has not had, ▇▇ ▇▇▇▇▇ and certain land located would not reasonably be expected to have, an Absorbing Company Material Adverse Effect. None of Absorbing Company’s or any of the Absorbing Company Subsidiaries’ ownership of or leasehold interest in Bataviaany such personal property is subject to any Liens, Illinois except for Absorbing Company Permitted Liens and Liens that have not had, and would not reasonably be expected to have, individually or in the aggregate, an Absorbing Company Material Adverse Effect.
(the “Owned Real Property”), neither the e) Neither Absorbing Company nor any Company Subsidiary owns any real property. The Company or the applicable Absorbing Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Propertyreceived since January 1, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority 2015 written notice of any uncured structural defects, or violation of any applicable Laws pertaining Law, relating to any buildingsAbsorbing Company Property that has had, structuresor would reasonably be expected to have, fixturesindividually or in the aggregate, an Absorbing Company Material Adverse Effect, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary ii) has received since January 1, 2015 written notice of any existingphysical damage to any Absorbing Company Property that has had, proposedor would reasonably be expected to have, orindividually or in the aggregate, to an Absorbing Company Material Adverse Effect for which there is not insurance in effect covering the actual knowledge cost of the Company (without a duty restoration and the loss of investigation or inquiry)revenue, threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use subject to reasonable deductibles and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryretention limits.
Appears in 1 contract
Properties. (a) The Company has good and valid title to, or one in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its Subsidiaries has good title to all the personal real properties and tangible assets reflected in the latest audited balance sheet included in that are necessary for the Company SEC Reports to conduct its business as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)currently conducted, free and clear of all Liens other than (i) Liens for current Taxes and assessments not yet past due or the Permitted Liens.
amount or validity of which is being contested in good faith by appropriate proceedings, (bii) Except as would mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company consistent with past practice and (iii) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, have materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company as currently conducted (“Permitted Liens” ). Except as has not had or and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding Effect on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto the tangible personal property currently used in the operation of the business of the Company is in good working order (reasonable wear and tear excepted).
(b) The Company has complied in all material respects with the terms of all leases to which it is a party, and all such leases are in full force and effect; (ii) there is no breach , except for any such noncompliance or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported failure to be leased in full force and effect that, individually or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) aggregate, has not had and (iii), as would not reasonably be expected to have a Material Adverse Effect. The Company enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
(c) The Section 4.18(c) of the Company has made available to Purchaser correct Disclosure Letter sets forth a true and complete copies list of (i) all Leases, if any, including any amendments theretoreal property owned by the Company and (ii) all real property leased for the benefit of the Company.
(d) Other than This Section 4.18 does not relate to intellectual property, which is the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all subject of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental AuthoritySection 4.19.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 1 contract
Properties. (a) The Each Buyer Company has good and valid title to, or one in the case of leased or subleased assets, valid and subsisting leasehold interests in, all of its Subsidiaries has good title to all the personal properties respective assets (tangible and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of businessintangible), free and clear of all Liens, except for (i) Liens for Taxes not yet due or that are being contested in good faith by appropriate proceedings (and that have been reflected or reserved against in the Buyer Recent Balance Sheet); (ii) Liens arising from municipal and zoning ordinances, other than land use regulations and easements for public utilities, none of which materially interfere with the Permitted Liens.
Buyer Business (bas currently conducted by the Buyer Companies) Except as or adversely affect the marketability of any of the material assets necessary for any Buyer Company; (iii) mechanics’, carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business consistent with industry practice or amounts that are not delinquent and none of which materially interfere with the Buyer Business or adversely affect the marketability of any of the material assets of any Buyer Company; (iv) non-exclusive licenses with respect to Buyer Owned Intellectual Property Rights that are entered into in the ordinary course of business, (v) statutory, common law or contractual liens of landlords, (vi) title defects, encumbrances or irregularities that do not secure the payment of a sum of money or that would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant materially impair the continued use and operation of the assets to which they relate in the business of such Buyer Company as presently conducted, (vii) liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the Company Subsidiaries leases ordinary course of business consistent with industry practice which are not, individually or licenses any real property in the aggregate, material to the Buyer Business (collectively, the “Leases” and each such property, a “Leased Real PropertyBuyer Permitted Liens”) is valid and binding on or (viii) as would not reasonably be expected to be, individually or in the Company and each of its Subsidiaries party thereto andaggregate, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company Buyer and its Subsidiaries, taken as a whole. Except as set forth in Schedule 5.18, and no Buyer Company is using any assets or rights that relates are material to the use Buyer Business that are not owned, validly licensed or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effectvalidly leased by such Buyer Company.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 1 contract
Properties. (ai) The Company or one of Each Borrower and its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiariesto, or that valid leasehold interests in, all of the Property material to its business (including its real properties), except for defects which could not reasonably be expected to have been acquired after the date thereof a Material Adverse Effect.
(ii) Each Borrower and its Subsidiaries has complied with all material obligations under all leases to which it is a party and that are material to the Company’s business on such Borrower and its Subsidiaries taken as a consolidated basis (whole and all such leases are in full force and effect except properties sold failures which could not reasonably be expected to have a Material Adverse Effect. Each Borrower and its Subsidiaries enjoys peaceful and undisturbed possession under all such material leases in which such Borrower or otherwise disposed of since the date thereof in the ordinary course of business)any such Subsidiary is a lessee, free and clear of all Liens other than the Permitted Liensexcept failures which could not reasonably be expected to have a Material Adverse Effect.
(biii) Except as would notEach Borrower and its Subsidiaries owns, or is licensed or otherwise permitted to use, all trademarks, trade names, copyrights, patents and other intellectual property material to its business, and the use thereof by such Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would could not reasonably be expected to have result in a Company Material Adverse Effect.
(civ) The Company has made available Schedule 5.13 sets forth the address of each real property that is owned or leased by any Borrower or any of its Subsidiaries as of the Effective Date after giving effect to Purchaser correct and complete copies of all Leases, if any, including any amendments theretothe transactions contemplated hereby.
(dv) Other than As of the Effective Date, none of the Borrowers nor any of their Subsidiaries have received notice of, or have knowledge of, any pending or contemplated condemnation proceeding affecting any of its real properties or any sale or disposition thereof, in lieu of condemnation. As of the Effective Date, none of the Borrowers’ nor any of their Subsidiaries’ owned real properties, nor any interest therein, is subject to any right of first refusal, option or other contractual right to purchase such real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good and valid title to to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all the personal of its real properties and tangible assets reflected in the latest audited balance sheet included in that are necessary for the Company SEC Reports and its Subsidiaries to conduct their respective businesses as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)currently conducted, free and clear of all Liens other than (i) Liens for Taxes and assessments not yet due and payable or the Permitted Liens.
amount or validity of which is being contested in good faith by appropriate proceedings, (bii) Except as would mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company and its Subsidiaries consistent with past practice and (iii) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, have materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company and its Subsidiaries as currently conducted (“Permitted Liens”). Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the tangible personal property currently used in the operation of the business of the Company and its Subsidiaries is in good working order (reasonable wear and tear excepted).
(b) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect: . Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
(c) Section 4.18(c) of the Company Disclosure Letter sets forth a true and complete list of (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any all real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease owned by the Company or any of its Subsidiaries or, to and (ii) all real property leased for the knowledge benefit of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than This Section 4.18 does not relate to intellectual property, which is the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all subject of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental AuthoritySection 4.19.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good title Except where the failure to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notdo so, individually or in the aggregate, have has not had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
, the Company or a Company Subsidiary has good, valid and defensible title to, and defensible and insurable fee simple interest in or a valid leasehold interest in, each of the material real properties (cexcept for any of the Company's or any Company Subsidiaries' Oil and Gas Properties, which are subject to Section 4.15 and shall not constitute a Company Property for the purposes of this Agreement) The the Company has made available to Purchaser correct owns or leases, as applicable (each, a "Company Property"), in each case free and complete copies clear of all Leasesconditions, if anyencroachments, including any amendments thereto.
(d) Other than easements, rights of way, restrictions and Liens, except for Permitted Liens and conditions, encroachments, easements, rights of way, restrictions or Liens which do not, individually or in the aggregate, materially impair and would not reasonably be expected to materially impair the continued use and operation of the real property commonly known asproperties to which they relate in the conduct of the business of the Company and each Company Subsidiary as presently conducted. Except for matters that, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇individually or in the aggregate, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ have not had and certain land located in Batavia, Illinois (the “Owned Real Property”)would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any Company Subsidiary owns has received notice to the effect that there are any real propertycondemnation, expropriation or other Proceedings that are pending or, to the Knowledge of the Company, threatened with respect to any material portion of any of the Company Properties. The Except for the owners of the properties in which the Company or the applicable a Company Subsidiary has a leasehold interest, no Person other than the Company or a Company Subsidiary has any ownership interest in any of the Company Properties owned by the Company or a Company Subsidiary.
(b) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any Company Subsidiary has good and indefeasible fee simple title leased, subleased or otherwise granted to all of any Person the Owned Real Property, free and clear of right to use or occupy any LiensCompany Property or any portion thereof, (ii) there are no leasesoutstanding options, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options rights of first offer or rights of first refusal to purchase the Owned Real or lease any Company Property or any portion thereof or interest therein, (iii) there are no boundary disputes relating to any Company Property and no encroachments materially and adversely affecting the Owned Real use of any Company Property is not currently being offered for sale, and (iv) neither with respect to each Company Property, all material buildings, structures, fixtures and improvements are in all respects adequate and sufficient and in satisfactory condition to support the operations of the Company nor any and each Company Subsidiary is as presently conducted.
(c) Except as, individually or in defaultthe aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) policies of title insurance or has ever updates or endorsements have been issued, insuring Company's or the applicable Company Subsidiary's fee simple title to each of the Company Properties listed on Section 4.19(c) of the Company Disclosure Letter owned by the Company or a Company Subsidiary, in default, under any restrictive covenants affecting amounts at least equal to the Owned Real purchase price paid for ownership of such Company Property, and no event (ii) there has occurred that, after notice or the lapse of time or both, would constitute not been any Claim made against any such a default, policy that has not been resolved and (viii) there is no proceeding suit, action or claim other Proceeding pending or, to the knowledge Knowledge of Company, threatened, against the Company, any Company Subsidiary, threatened against or affecting the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary challenging the Company's or the applicable Company Subsidiary's fee simple title to each of the Company Properties owned by the Company or a Company Subsidiary.
(d) Each of the Company and each Company Subsidiary has complied with the terms of all leases pursuant to which the Company or a Company Subsidiary has a leasehold interest in the Company Properties (the "Company Leases"), and all such Company Leases are in full force and effect, except for such noncompliance or failure to be in full force and effect that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, to the Knowledge of the Company, there are no disputes between the Company or any Company Subsidiary and any landlord under the Company Leases, nor are there any claims or events of default or threats of any claims or events of default with respect to any Company Lease.
Appears in 1 contract
Properties. (a3) The Company or one of and its Subsidiaries has have good title to to, or good and valid leasehold interests in, all the personal properties property and assets reflected in the latest audited balance sheet included in on the Company SEC Reports as being owned by the Company Balance Sheet or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (Company Balance Sheet Date, except properties sold or otherwise as have been disposed of since the date thereof Company Balance Sheet Date in the ordinary course of business)business consistent with past practice and in compliance with this Agreement, in each case free and clear of all Liens (other than the Permitted Liens.
(b) ). Except as has not had and would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: , the properties and assets owned or leased by the Company and its Subsidiaries constitute all of the properties and assets necessary for and used in the conduct of their respective businesses in the places and in such manner in which such businesses are currently being conducted. Neither the Company nor any of its Subsidiaries owns or has ever owned any interest in real property.
(i) Each lease, sublease, license or other use or occupancy agreement (each, a “Lease”) under which the Company or any of its Subsidiaries leases, subleases, licenses or otherwise uses or occupies any real property (whether as lessor or lessee) is valid and in full force and effect and (ii) neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge any other party to a Lease, is in default under the provisions of such Lease and no event has occurred that and is continuing that with notice or lapse of time, or both, would constitute a default, in each lease case except for those defaults that have not had and would not reasonably be expected to have, individually or license pursuant in the aggregate, a Company Material Adverse Effect. Section 4.14(b) of the Company Disclosure Schedule sets forth, as of the date of this Agreement, a complete and correct list of all Leases to which the Company or any of its Subsidiaries is a party, including all amendments, extensions, renewals and guarantees with respect thereto, in each case identifying the parties thereto, and the Company Subsidiaries leases or licenses any address of the real property associated with such Lease (such property, together with all rights, title and interest of the Company or any Subsidiary in and to leasehold improvements relating thereto, including security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “Leases” and each such property, a “Leased Real Property”). The Company has made available to Parent (in each case, together with all amendments, modifications, supplements, waivers or other changes thereto) is valid complete and binding on correct copies of all Leases. The performance by the Company of this Agreement and the transactions contemplated hereby will not result in the termination of, or in any increase of any material amounts payable under, any Lease or any material rights under any Lease or will require the consent or approval from any party to any such Lease other than the Company. With respect to any Leased Real Property, the Company and each any of its Subsidiaries party thereto and, to the knowledge enjoys peaceful and undisturbed possession of the CompanyLeased Real Property.
(b) The equipment and tangible personal property owned, each other party thereto and is in full force and effect; (ii) there is no breach leased, licensed or default under any Lease otherwise used or held for use by the Company or any of its Subsidiaries orhave no material defects. To the Company’s Knowledge, all improvements and other equipment used in connection with the business of the Company and its Subsidiaries is located entirely on the Leased Real Property, except for improvements and equipment which have not had and would not reasonably be expected to have, individually or in the knowledge aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse none of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, has received any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear notice of any Liens; and (v) the Company and Company Subsidiaries are in possession pending or threatened condemnation Action with respect to any of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known asit leases, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located licenses or otherwise occupies. Except as set forth in Batavia, Illinois (the “Owned Real Property”), neither Section 4.14(c) of the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real PropertyDisclosure Schedule, free and clear of any Liens, (ii) there are no Person leases, licensessubleases, licenses or occupancy agreements pursuant to which any third party is granted otherwise has the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to occupy any of the Leased Real Property that may be required to be removed upon termination of other than the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiarySubsidiary of the Company.
Appears in 1 contract
Sources: Merger Agreement (Illumina Inc)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The , the Company or a Subsidiary of the Company owns and has made available either good and valid fee title or a valid leasehold interest, Right of Way or other rights to Purchaser correct the land, mineral and complete copies other subsurface rights, buildings, structures and other improvements thereon and fixtures thereto necessary to permit it to conduct its business as currently conducted, in each case free and clear of all LeasesLiens (except in all cases for Permitted Liens). Except as would not reasonably be expected to have a Company Material Adverse Effect and except as may be limited by the Bankruptcy and Equity Exception, if anyall leases, including Rights of Way or other agreements under which the Company or any amendments thereto.
(d) Other than the of its Subsidiaries lease, access or use any real property commonly known asare valid, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇binding and in full force and effect against the Company or any of its Subsidiaries and, ▇▇▇▇▇▇▇▇▇▇▇to the Knowledge of the Company, ▇▇ ▇▇▇▇▇ the counterparties thereto, in accordance with their respective terms, and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns of its Subsidiaries are in default under any real property. The Company of such leases, Rights of Way or the applicable Company Subsidiary other agreements.
(ib) has good and indefeasible fee simple title to all Each of the Owned Real PropertyCompany and its Subsidiaries has such consents, free and clear of any Lienseasements, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal way, permits and licenses (collectively, “Rights of Way”) from each person as are sufficient to purchase conduct its business as currently conducted, except for such Rights of Way the Owned Real Property or any portion thereof or interest therein, absence of which do not have and the Owned Real Property is would not currently being offered for sale, (iv) neither reasonably be expected to have a Company Material Adverse Effect. Each of the Company nor and its Subsidiaries has fulfilled and performed all its material obligations with respect to such Rights of Way and conducts their business in a manner that does not violate any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting of the Owned Real PropertyRights of Way, and no event has occurred thatthat allows, or after notice or the lapse of time would allow, revocation or both, would constitute such a default, and (v) there is no proceeding termination thereof or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in any impairment of the taking rights of all or any part the holder of any Leased Real Property such Rights of Way, except for such revocations, terminations and impairments that have not and would not reasonably be expected to have a Company Material Adverse Effect. All pipelines owned or Owned Real Property operated by the Company and its Subsidiaries are subject to Rights of Way, there are no encroachments or other encumbrances on the Rights of Way that would prevent or hinder materially affect the continued use thereof and enjoyment there are no gaps (including any gap arising as a result of any Leased Real Property or breach by the Owned Real Property as heretofore used in the conduct of the business of any Company or any of its Subsidiaries of the terms of any Rights of Way) in the Rights of Way other than gaps that would not and would not reasonably be expected to have a Company SubsidiaryMaterial Adverse Effect.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(bi) Except as where the failure to do so has not had and would notnot reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease a Company Subsidiary has a good and valid leasehold interest in indefeasible fee simple title to each parcel of the material real property properties (except for any of the Company’s or any Company Subsidiaries’ Oil and Gas Properties, which is are subject to Section 3.1(p) and shall not constitute a Lease Company Property for the full term purposes of the respective Lease free and clear of any Liens; and (vthis Agreement) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois owns (the “Owned Real Property”), in each case free and clear of all conditions, encroachments, easements, rights of way, restrictions and Liens, except for Permitted Liens.
(ii) Except where the failure to do so has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or a Company Subsidiary has a valid leasehold interest in each of the material real properties (except for any of the Company’s or any Company Subsidiaries’ Oil and Gas Properties, which are subject to Section 3.1(p) and shall not constitute a Company Property for the purposes of this Agreement) the Company leases (the “Leased Real Property”, and each parcel of Owned Real Property or Leased Real Property, a “Company Property”), in each case free and clear of all conditions, encroachments, easements, rights of way, restrictions and Liens, except for Permitted Liens. Except for matters that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any Company Subsidiary owns has received notice to the effect that there are any real property. The Company condemnation, expropriation or other Proceedings that are pending or, to the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all Knowledge of the Owned Company, threatened with respect to any material portion of any of the Company Properties. Except for the owners of any Leased Real Property, free no Person other than the Company or a Company Subsidiary has any ownership interest in any of the Company Properties.
(iii) Except as has not had and clear of any Lienswould not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (iiA) there are no leasesneither the Company nor any Company Subsidiary has leased, licenses, subleased or occupancy agreements pursuant otherwise granted to which any third party is granted Person the right to use the Owned Real Propertyor occupy any Company Property or any portion thereof, (iiiB) there are no outstanding options options, rights of first offer or rights of first refusal to purchase the Owned Real or lease any Company Property or any portion thereof or interest therein, (C) there are no boundary disputes relating to any Company Property and no encroachments materially and adversely affecting the Owned Real use of any Company Property is not currently being offered for saleand (D) with respect to each Company Property, all material buildings, structures, fixtures and improvements are in all respects adequate and sufficient and in satisfactory condition to support the operations of the Company and each Company Subsidiary as presently conducted.
(iv) neither Each of the Company nor any and each Company Subsidiary is has complied with the terms of all leases pursuant to which the Company or a Company Subsidiary has a leasehold interest in default, or has ever been in default, under any restrictive covenants affecting the Owned Leased Real Property, and no event has occurred thatall such leases are in full force and effect, after notice except for such noncompliance or the lapse of time failure to be in full force and effect that would not reasonably be expected to have, individually or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectivelyaggregate, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the a Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryMaterial Adverse Effect.
Appears in 1 contract
Properties. (ai) The Each of the Company or one of its and the Subsidiaries has good and marketable title to to, or in the case of leased property and leased tangible assets have valid and enforceable leasehold interests in, all the personal of its material properties and tangible assets, except for such properties and tangible assets reflected as are no longer used or useful in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one conduct of its Subsidiaries, businesses or that as have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)business and except for Permitted Liens and for defects in title, easements and restrictive covenants that individually or in the aggregate have not materially interfered with, and could not reasonably be expected to materially interfere with, the ability of the Company and the Subsidiaries to use such property and assets in the business of the Company and the Subsidiaries as presently conducted and as proposed by the Company and the Subsidiaries to be conducted. All such material properties and tangible assets, other than properties and tangible assets in which the Company or any of the Subsidiaries has a leasehold interest, are free and clear of all Liens other than the Liens, except for Permitted Liens. For purposes of this Section 3.01(o), the term "property" shall not include any Intellectual Property.
(bii) Except as would not, individually The material properties and tangible assets owned or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which leased by the Company and the Subsidiaries, or which they otherwise have the right to use, are sufficient (subject to normal wear and tear) to operate their businesses in substantially the same manner as they are presently conducted and as proposed by the Company and the Subsidiaries leases or licenses any to be conducted.
(iii) Section 3.01(o)(iii) of the Company Letter sets forth a complete and accurate list as of the date of this Agreement of all real property and interests in real property leased by the Company or any of the Subsidiaries (collectively, the “Leases” and each such property, a “"Leased Real Property”"). Neither the Company nor any of the Subsidiaries owns in fee any real property or interests in real property.
(iv) With respect to each Leased Real Property, as of the date of this Agreement (A) neither the Company nor any Subsidiary has subleased, licensed or otherwise granted anyone the right to use or occupy such Leased Real Property or any portion thereof and (B) neither the Company nor any Subsidiary has collaterally assigned or granted any other security interest in any such leasehold estate or any interest therein.
(v) Each of the Company and the Subsidiaries is in compliance in all material respects with the terms of all material leases to Leased Real Property to which it is a party and under which it is in occupancy, and each such material lease is a legal, valid and binding on agreement of the Company and each of its Subsidiaries party thereto or a Subsidiary, as the case may be and, to the knowledge of the Company, of each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by thereto, enforceable against the Company or any of its Subsidiaries orsuch Subsidiary, as the case may be, and, to the knowledge of the Company, any against the other party or parties thereto; (iii) no event has occurred that , in each case, in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, other similar Laws relating to the knowledge enforcement of the Company, any other party thereto; (iv) to the knowledge creditors' rights generally and by general principles of the Company, the Company or one equity. Each of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company the Subsidiaries are enjoys peaceful and undisturbed possession in possession of all material respects under all the properties purported leases to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property to which it is a party and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result under which it is in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryoccupancy.
Appears in 1 contract
Sources: Merger Agreement (Mro Software Inc)
Properties. (a) The Company has good and valid title to, or one in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its Subsidiaries has good title to all the personal real properties and tangible assets reflected in the latest audited balance sheet included in that are necessary for the Company SEC Reports to conduct its business as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)currently conducted, free and clear of all Liens other than (i) Liens for current Taxes and assessments not yet past due or the Permitted Liens.
amount or validity of which is being contested in good faith by appropriate proceedings, (bii) Except as would mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company consistent with past practice and (iii) any such matters of record, Liens and other imperfections of title that do not, individually or in the aggregate, have materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company as currently conducted (“Permitted Liens”). Except as has not had or and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding Effect on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto the tangible personal property currently used in the operation of the business of the Company is in good working order (reasonable wear and tear excepted).
(b) The Company has complied in all material respects with the terms of all leases to which it is a party, and all such leases are in full force and effect; (ii) there is no breach , except for any such noncompliance or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported failure to be leased in full force and effect that, individually or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) aggregate, has not had and (iii), as would not reasonably be expected to have a Material Adverse Effect. The Company enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
(c) The Section 4.18(c) of the Company has made available to Purchaser correct Disclosure Letter sets forth a true and complete copies list of (i) all Leases, if any, including any amendments theretoreal property owned by the Company and (ii) all real property leased for the benefit of the Company.
(d) Other than This Section 4.18 does not relate to intellectual property, which is the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all subject of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental AuthoritySection 4.19.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Ra Medical Systems, Inc.)
Properties. (a) The Company or one Except as set forth in Section 5.12(a) of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its SubsidiariesDisclosure Letter, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notas, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
, (ci) The New Company, the Company or a Company Subsidiary has made available good and valid fee simple title to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known asowned by New Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois the Company or a Company Subsidiary (the “Owned Real Property”), neither free and clear of all Encumbrances, except Permitted Encumbrances, (ii) New Company, the Company nor any or a Company Subsidiary owns any holds valid rights to lease or otherwise use and occupy all real property. The property leased, licensed, used or otherwise occupied by New Company, the Company or a Company Subsidiary, including real property over which New Company, the applicable Company or a Company Subsidiary has easement, right of way, subsurface, mining or drilling rights to any steam or other geothermal resources (the “Leased Real Property”), free and clear of
(b) Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and except for Permitted Encumbrances, each of New Company, the Company and the Company Subsidiaries, in respect of all of its properties, assets and other rights that do not constitute the Company Real Property (other than Intellectual Property), (i) has good and indefeasible fee simple valid title to all of the Owned Real Property, thereto free and clear of any Liensall Encumbrances (other than Permitted Encumbrances) and (ii) owns, has valid leasehold interests in or valid contractual rights to use, all of such properties, assets and other rights, tangible and intangible (other than Intellectual Property), used by its business.
(c) Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) the buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property of the Company and the Company Subsidiaries are structurally sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property is in need of maintenance or repairs (except for ordinary, routine maintenance and repairs), (ii) there are no leasesthe buildings, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildingsplants, structures, furniture, fixtures, machinery, equipment, vehicles and other improvementsitems of tangible personal property currently owned or leased by the Company and its Subsidiaries, together with properties and assets (whether tangible or intangible, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge Intellectual Property) of the Company (without a duty of investigation or inquiry)and the Company Subsidiaries, threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder are sufficient for the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any the Company or any and the Company SubsidiarySubsidiaries after the Closing in the same manner as conducted prior to the Closing and constitute all of the rights, property and assets necessary to conduct the business the Company and the Company Subsidiaries as currently conducted and (iii) the Company and the Company Subsidiaries have all electric, natural gas and geothermal interconnection agreements, as applicable, necessary for the operation of their respective power plant assets.
Appears in 1 contract
Sources: Merger Agreement (Constellation Energy Generation LLC)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected Except in the latest audited balance sheet included in the Company SEC Reports any such case as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would is not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect, the Company or one of the Subsidiaries has good, valid and marketable title to all such real personal and mixed property owned by the Company, free and clear of any Liens, and there are no outstanding options to purchase or sell real property, except for dispositions of other real estate owned (“OREO”) in the ordinary course or pursuant to the Company’s asset disposition plans.
(b) The Company has made available to the Investors copies of all material leases, subleases and other agreements under which the Company or any of the Subsidiaries uses or occupies or has the right to use or occupy, now or in the future, any real, personal or mixed property (the “Leases”) (including all modifications, amendments, supplements, waivers and side letters thereto). Except as has not had or and would not reasonably be expected to have have, individually or in the aggregate, a Company Material Adverse Effect: , (i) each lease or license pursuant to which the Company Lease is valid, binding and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; and (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, no termination event or condition or uncured default of a material nature on the part of the Company or one or, if applicable, any of its the Subsidiaries that is either exists under any Lease. The Company and each of the tenant or licensee named under the Lease Subsidiaries has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease leased by it free and clear of any all Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have except for Liens which do not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into interfere with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy materially affect the value of all or any portion of any real the property subject to a the Lease. Neither the Company nor any of the Subsidiaries has received written notice of any pending, exceptand to the knowledge of the Company there is no threatened, in condemnation or similar proceeding with respect to any property leased pursuant to any of the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effectreal property leases.
(c) The Company has made available and the Subsidiaries have good, valid and marketable title to Purchaser correct their owned assets and complete copies properties, or in the case of assets and properties they lease, license, or have other rights in, good and valid rights by lease, license or other agreement to use, all Leasesmaterial assets and properties (in each case, if any, including any amendments thereto.
(dtangible and intangible) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither necessary to permit the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not Subsidiaries to conduct their respective businesses as currently being offered for saleconducted, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereonexcept, in any court all cases, as would not be reasonably expected to have, individually or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectivelyaggregate, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryMaterial Adverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (Jacksonville Bancorp Inc /Fl/)
Properties. (aA) The Company or one With respect to each of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by Owned Properties and the Company or one of its Subsidiaries, or that have been acquired after Leased Properties in Hong Kong (as the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.case may be):
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease the relevant Group Company has good and marketable title in or license pursuant to which the Company Owned Properties and is the legal and beneficial owner thereof and there is no claim or dispute in respect of its ownership of the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; Owned Properties;
(ii) there is no breach or default under any Lease by all the title deeds (including valid and subsisting tenancy agreements in respect of the Company or any of its Subsidiaries or, Owned Properties in Hong Kong but excluding all tenancy agreements which have lapsed for more than 6 years) and documents necessary to prove the relevant Group Company has good and marketable title to the knowledge property and in particular all the original of such title deeds and documents which relate exclusively to the property are in the possession and under the control of the Companyrelevant Group Company (save for documents of title in respect of properties which are the subject of charges, any other party thereto; mortgages, liens or encumbrances and are in the possession of chargees, mortgagees or their agents);
(iii) no event has occurred that with the government grant is good, valid and subsisting and all land premium management fee, registration fees, taxes, all moneys due and payable, outstanding or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries orreserved thereunder and all covenants, to the knowledge of the Companyterms and conditions contained therein have been duly paid, any other party thereto; observed and performed to-date;
(iv) to the knowledge of the Companyall covenants, obligations, stipulations, restrictions, terms and conditions affecting the Company Owned Properties or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person Leased Properties (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case may be) have been duly observed, performed and complied with in all respects and all outgoings of (ii) and (iii), as would not reasonably be expected to whatever nature in respect thereof have a Company Material Adverse Effect.been duly paid to-date;
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding dispute with any governmental or claim pending orlocal authority or with the owner or occupier of any adjoining or neighbouring property or howsoever otherwise;
(vi) there is no notice or order in relation to resumption or compulsory acquisition of the Company Owned Properties or the Company Leased Properties (as the case may be) under any legislation the implementation of which would or could affect the occupation or enjoyment of the Company Owned Properties or the Company Leased Properties (as the case may be) nor are there any monetary or other claims or liabilities, whether actual or contingent affecting such Company Owned Properties or the Company Leased Properties (as the case may be);
(vii) all legislation, statutory requirements, governmental or other orders, rules, directives or instruments affecting or pertaining to the knowledge use, occupation or enjoyment of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property Properties or the Improvements Company Leased Properties (as defined belowthe case may be) have been duly complied with to-date;
(viii) the Company Owned Properties or the Company Leased Properties (as the case may be) is free from any charge, mortgage, lien, encumbrance, and there are no third party rights, conditions, defects, adverse interest, equities, orders, regulations or other restrictions which could or might have adverse effect on the title or value of the Company Owned Properties or the Company Leased Properties (as the case may be) or personal property thereonlimit, in restrict or otherwise adversely affect the ability of any court or before any Governmental Authority.
(e) Neither member of the Group to occupy and utilise the Company nor any Owned Properties or the Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixturesLeased Properties (as the case may be), and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included relevant Group Company has not entered into any agreement in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements relation to any of the Leased Real Property that may be required foregoing;
(ix) there is no agreement to be removed upon termination sell or part with possession of or let or license or grant any option over or otherwise dispose of any interest in the property or any part thereof;
(x) the relevant Group Company has not received and is not aware of there being any notice from the government or any other competent authority or the management body of the term of the applicable Lease. Neither the property requiring that Group Company nor to demolish or reinstate any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge part of the Company Owned Properties or the Company Leased Properties (without a duty of investigation as the case may be);
(xi) the Group has not made erected or inquiry)constructed, threatenedand is not aware of, eminent domain any unauthorised or other public acquisition proceeding that would result in illegal structure or alteration (which have not been duly rectified) at, on or within the taking of all Company Owned Properties or the Company Leased Properties (as the case may be) or any part thereof;
(xii) no competent authority has issued any order or notice which may adversely affect the Company Owned Properties or the Company Leased Properties (as the case may be) and none of the Group Companies has received nor is aware of any complaints, proposals, schemes, resolutions, notices, orders, requirements or recommendations of any authority affecting the Company Owned Properties or the Company Leased Real Property Properties (as the case may be) or the use thereof or the interest therein or the owner or occupier thereof;
(xiii) no default or event which with notice or lapse of time or both will constitute a default by the relevant Group Company has occurred or is continuing under the government grant or other documents applicable to the Company Owned Real Property Properties or that would prevent the Company Leased Properties (as the case may be) and none of the Group Companies is in breach of any laws, rules, regulations, guidelines, notices, circulars, orders, judgments, decrees or hinder rulings of any court, government, governmental or regulatory authorities in respect of the continued use use, occupation and enjoyment of any Leased Real Property the Company Owned Properties or the Owned Real Property Company Leased Properties (as heretofore used in the conduct case may be);
(xiv) all requisite licenses, certificates and authorities necessary for the existing use of the business Company Owned Properties or the Company Leased Properties (as the case may be) by the relevant Group Company have been duly obtained and are valid, in full force and effect;
(xv) the Company Owned Properties or the Company Leased Properties (as the case may be) is in good state of repair and good physical conditions (fair wear and tear excepted) and none of the Group Companies is aware of any matters or things which materially and adversely affect the Company Owned Properties or the Company Leased Properties (as the case may be) or which may subject the owner or occupier thereof to any charge or liability or which should be revealed to a purchaser for value;
(xvi) the particulars of tenancies set out in Part B of Exhibit C are true and accurate particulars of all tenancies in respect of the Company Subsidiary.Leased Properties in Hong Kong;
(xvii) the Company Leased Properties are not subject to the payment of any outgoings other than rent, service charges and rates and other normal outgoings;
(xviii) each of the Group Companies has complied in all material respects with all legislation, statutory requirements, governmental or other orders, 91 rules, directives, instruments affecting or pertaining to the use, occupation or enjoyment of the Company Leased Properties;
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of Parent, together with its Subsidiaries, have in all material respects good and valid title to, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course case of business)leased property and leased tangible assets, a valid leasehold interest in, all of the real properties and tangible assets reflected or disclosed in Parent’s Annual Report filed on Form 20-F for the fiscal year ended December 31, 2023, free and clear of all Liens liens other than (u) liens for current Taxes and assessments that are not yet due or for Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, (v) liens securing indebtedness reflected on the Permitted Liens.
most recent consolidated balance sheet of Parent included in the Parent SEC Documents filed with the SEC prior to the date of this Agreement or incurred by Parent or any of its Subsidiaries in the Ordinary Course of Business since the date of such consolidated balance sheet, (bw) Except as would liens imposed or promulgated by laws with respect to real property and improvements, including zoning regulations, which are not violated by the current use or occupancy of the real property, (x) mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ liens arising in the Ordinary Course of Business of Parent or any of its Subsidiaries for amounts which are not due and payable, (y) liens and other imperfections of title or record that do not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant materially impair the continued ownership, use and operation of the assets to which they relate in the Company and the Company Subsidiaries leases business of Parent or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto andas currently conducted (the “Parent Permitted Liens”).
(b) Each of Parent and its Subsidiaries has complied with the terms of all leases to which it is a party, to the knowledge of the Company, each other party thereto and is all such leases are in full force and effect; (ii) there is no breach , except for any such noncompliance or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported failure to be leased in full force and effect that, individually or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) aggregate, has not had and (iii), as would not reasonably be expected to have a Company Parent Material Adverse Effect. Each of Parent and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 1 contract
Properties. (a) The Company or one Each of the Company, the Borrower and its Subsidiaries has good and marketable title to, or valid leasehold interests in, all its Property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes. Ownership of all wholly owned Projects and other Property of the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned Consolidated Businesses is held by the Company or one of Borrower and its Subsidiaries, or that have been acquired after the date thereof Subsidiaries and that are material to is not held directly by the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notThere are no pending or, to the best knowledge of the Borrower, threatened proceedings or actions to revoke, attack, invalidate, rescind or modify in any material respect (i) the zoning of any Unencumbered Eligible Projects, or any part thereof, or (ii) any building or other permits heretofore issued with respect to any Unencumbered Eligible Project, or asserting that any such zoning or permits do not permit the operation of any such Project or any part thereof or that any improvements located on such Unencumbered Eligible Project cannot be operated in accordance with its intended use or is in violation of applicable law. There are no pending or, to the best knowledge of the Borrower, threatened or contemplated proceedings relating to any (A) taking by eminent domain or other condemnation of any portion of any Unencumbered Eligible Project or any other Project if such action with respect to such Project either individually or in the aggregate, have had or collectively with other Projects could reasonably be expected to have a Company Material Adverse Effect: , (iB) each lease condemnation or license pursuant to which the Company and the Company Subsidiaries leases or licenses relocation of any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under roadways abutting any Lease by the Company Unencumbered Eligible Project or any of its Subsidiaries or, other Project if such action with respect to the knowledge of the Company, any such Project either individually or collectively with other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not Projects could reasonably be expected to have a Company Material Adverse Effect, and (C) denial of access to any Unencumbered Eligible Project from any point of access to such Unencumbered Eligible Project or any other Project if such action with respect to such Project either individually or collectively with other Projects could reasonably be expected to have a Material Adverse Effect. Each Unencumbered Eligible Project, and each other Project, if such failure with respect to such Project either individually or collectively with failures with respect to other Projects could reasonably be expected to have a Material Adverse Effect, has adequate and permanent legal access to water, gas and electrical public utilities, storm, and sanitary sewerage facilities, other required public utilities (with respect to each of the aforementioned items by means of either a direct connection to the source of such utilities or through connections available on publicly dedicated roadways directly abutting such Project), parking and means of access between such Project and public highways over recognized curb cuts; and all of the foregoing comply in all material respects with all applicable laws, rules and regulations of Governmental Authorities.
(c) The Company has made available to Purchaser correct and complete copies Neither the existence of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company Improvements upon a Project or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear present use or condition of any LiensProject violates in any material respect any applicable laws, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights rules and regulations of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, Governmental Authorities. Each Project may be operated in its current fashion and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and Consolidated Businesses have received no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received notices from any Governmental Authority written notice alleging any material violation by any Project of any uncured applicable laws, rules or regulations. Certificates of occupancy have been issued for all of the Improvements located on the Unencumbered Eligible Projects, and the use of such Improvements are covered by all other certificates and permits required by applicable laws, rules, regulations, and ordinances or in connection with the use, occupancy, and operation thereof. No material portion of any Unencumbered Eligible Projects, nor any Improvements located on such Unencumbered Eligible Projects that are material to the operation, use, or value thereof, have been damaged in any respect as a result of any fire, explosion, accident, flood, or other casualty, except to the extent that the same have been restored to their condition prior thereto. No written notices of material violation of any applicable Laws pertaining federal, state, or local law or ordinance or order or requirement have been received with respect to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryProjects.
Appears in 1 contract
Properties. (a) The Company Schedule 3.15(a) of the Disclosure Schedule lists, and describes by reference to the owner, municipal address and legal description, all real property owned, legally or one of its Subsidiaries has good title to all beneficially, by the personal properties and assets reflected SunSource Entities which is used or useful in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would not, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property Expediter Business (collectively, the “Leases” "Owned Properties" and each such propertyeach, a “Leased Real an "Owned Property”"). Except as described on Schedule 3.15(a) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the CompanyDisclosure Schedule, with respect to each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.Owned Property:
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) the identified owner of such Owned Property is the sole beneficial and (where its interests are registrable) the sole registered owner of all of its assets and interests, and has good and indefeasible fee simple marketable title to all of the Owned Real PropertyProperty in fee simple, free and clear of any LiensEncumbrance, except for Permitted Encumbrances, which Permitted Encumbrances do not, in the aggregate, materially adversely impair the current use, occupancy, or value, or the marketability of title, of the Owned Property subject thereto;
(ii) there are no leasespending or, licensesto the Knowledge of the SunSource Entities, threatened expropriation or occupancy agreements pursuant condemnation proceedings, lawsuits or administrative or other Actions relating to which any third party is granted the right to use the Owned Real PropertyProperties that would materially and adversely affect the current use, occupancy, value or marketability thereof;
(iii) there are no material structural defects in any of the buildings or improvements situated on any Owned Property;
(iv) the building systems, structures, fixtures or improvements, owned, leased or used on the Owned Properties are, to the Knowledge of the SunSource Entities, in all respects in good condition and working order (reasonable wear and tear excepted), and are adequate for the operation of the Expediter Business as presently operated;
(v) the legal description for the Owned Property located in Des Plaines, Illinois (the "Illinois Property") describes such property fully and adequately, and Commonwealth Land Title Insurance Company (the "Title Company") will affirmatively insure to the Partnership that the legal description for the Owned Property located in Windsor, Ontario (Canada) (the "Windsor Property") describes such property fully and adequately, and, except as shown on the surveys of the Owned Properties prepared or commissioned by International Land Services and, dated, in the case of the Illinois Property, December 21, 1999, and, in the case of the Windsor Property, December 13, 1999 (as revised December 21, 1999), the buildings and improvements thereon (x) are not in violation of applicable setback requirements, zoning by-laws and ordinances and are not subject to any variances therefrom, and (y) do not materially encroach on any adjoining land or 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 Owned Property is not located within any flood plain or subject to any similar type restriction for which any Permits necessary to the use thereof have not been obtained;
(vi) all facilities have received all approvals of Governmental Authorities (including Permits) required in connection with the ownership or operation thereof and have been operated and maintained in compliance in all material respects with applicable Laws;
(vii) except as disclosed on Schedule 3.15(a)(vii) of the Disclosure Schedule, (x) there are no leases, subleases, licenses, concessions, or other agreements (including, without limitation, with respect to food services, parking and other concessions), written or oral, granting to any party or parties the right of use or occupancy of any portion of any Owned Property, (y) there are no outstanding options to purchase, lease or use, rights of first refusal to purchase the parcels of real property or any portions of any Owned Real Property or any portion thereof or interest therein, and (z) there are no third parties (including any SunSource Entities other than the Contributed Entities) in possession of, or having a right to occupy, any portion of any Owned Real Property;
(viii) all facilities located on any portion of any Owned Property is not currently being offered are fully serviced and supplied with utilities and other services necessary for salethe operation of such facilities, including gas, electricity, water, telephone, sanitary sewer, and storm sewer, all of which services are provided via public roads or via permanent, irrevocable, appurtenant easements benefiting such Owned Property; and
(ivix) neither the Company nor any Company Subsidiary is in defaulteach Owned Property abuts on and has direct vehicular access to a public road, or has ever been access to a public road via a permanent, irrevocable, appurtenant easement benefiting such Owned Property.
(b) Schedule 3.15(b) of the Disclosure Schedule lists and describes briefly all real property leased, subleased or licensed to the Expediter Entities ("Leased Property" and, together with Owned Property, the "Expediter Property"). Attached to Schedule 3.15(b) of the Disclosure Schedule are rent and concession settlement statements for each Leased Property for the year ended December 31, 1999. The SunSource Entities have delivered to the Partnership complete and correct copies of the leases and subleases with respect to the Leased Properties (as amended to date). With respect to each lease and sublease listed in Schedule 3.15(b) of the Disclosure Schedule:
(i) the lease or sublease is legal, valid, binding, enforceable and in full force and effect, and will continue to be legal, valid, binding, enforceable, and in full force and effect following the consummation of the transactions contemplated hereby;
(ii) no party to the lease or sublease is in material breach or default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred thatwhich, after with notice or the lapse of time or bothtime, would constitute a breach or default or permit termination, modification, or acceleration thereunder;
(iii) no party to the lease or sublease has repudiated any provision thereof;
(iv) there are no disputes, oral agreements, or forbearance programs in effect as to the lease or sublease;
(v) with respect to each sublease, the representations and warranties set forth in subsections (i) through (v) above are true and correct with respect to the underlying lease;
(vi) all rent or security deposits with respect to any Leased Property are reflected on the Year-End Balance Sheet;
(vii) none of the SunSource Entities have assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in the leasehold or subleasehold with respect to the Leased Properties;
(viii) all facilities leased or subleased thereunder have received all approvals of Governmental Authorities (including Permits) required to be obtained by the Expediter Entities in connection with the operation thereof and have been operated and maintained in compliance in all material respects with applicable Laws;
(ix) there are no material structural defects in any of the buildings or improvements situated on the Leased Properties;
(x) the building systems, structures, fixtures or improvements, owned, leased or used by the Expediter Entities on the Leased Properties are, to the Knowledge of the SunSource Entities, in all respects in good condition and working order (reasonable wear and tear excepted), and are adequate for the operation of the Expediter Business as presently operated; and
(xi) all facilities leased or subleased thereunder are adequately supplied and serviced with utilities and other services necessary for the operation of such facilities.
(c) The Expediter Entities (i) have good and marketable title to, or a defaultvalid leasehold interest in, the Expediter Assets (other than the Owned Property or the Leased Property) used or held for use by them, located on their premises, or acquired after the date thereof, free and clear of all Encumbrances, other than Permitted Encumbrances and subject to the rights of customers of the Expediter Entities in and to Expediter Inventory under purchase orders or contracts entered into in the Ordinary Course of Business, and (vii) there is no proceeding own or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any lease all buildings, structuresmachinery, fixtures, equipment and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in tangible assets necessary for the conduct of the business Expediter Business as presently conducted and as presently proposed to be conducted.
(d) Each tangible Expediter Asset is free from material defects (patent and, to the Knowledge of the SunSource Entities, latent), is not subject to any Company disputes with a Governmental Authority or any Company Subsidiarythird Person, has been maintained in accordance with normal industry practice, is in good operating condition and repair (subject to normal wear and tear), and is suitable for the purposes for which it presently is used and presently is proposed to be used.
Appears in 1 contract
Properties. (a) The Company Except as set forth on Section 4.09 of the Seller Disclosure Letter, (i) no Transferred Real Property is subject to any Lien, including without limitation, any right to the use or one occupancy of its Subsidiaries any Transferred Real Property, other than Permitted Liens, and (ii) neither Seller or the applicable Divesting Entity has good title (x) subleased, licensed or otherwise granted any Person the right to all the personal properties and assets reflected use or occupy any Transferred Real Property or any portion thereof, or (y) collaterally assigned or granted any other security interest in any Transferred Lease or any interest therein. Except as would not reasonably be expected to have, individually or in the latest audited balance sheet included aggregate, a Material Adverse Effect, each Transferred Lease constitutes the entire agreement between the parties thereto with respect to the Transferred Real Property leased thereunder, and is, with respect to Seller or the applicable Divesting Entity, a valid and subsisting agreement in full force and effect, pursuant to which Seller or the Company SEC Reports as being owned by applicable Divesting Entity has a valid and enforceable leasehold estate in, and enjoys peaceful and undisturbed possession of (subject to the Company terms of the Transferred Lease), the Transferred Real Property, subject to the Bankruptcy and Equity Exception. Neither Seller nor any Divesting Entity has received any notice of termination or one cancellation of its Subsidiariesor of a breach or default under any Transferred Lease that remains uncured nor, to the Knowledge of Seller, has any event occurred which, with notice or lapse of time or both, would constitute a breach or default under any such Transferred Lease, or that have been acquired after permit the date thereof and that are material to the Company’s business on a consolidated basis (termination or cancellation of any such Transferred Lease, in each case, except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would not, individually or in the aggregate, have had materially impair the use, occupancy or value of the Transferred Real Property. With respect to the Transferred Real Property, Section 4.09(a) of the Seller Disclosure Letter contains a true and complete list as of the date hereof of all agreements relating to the Transferred Real Property (each a “Transferred Lease”). Seller has heretofore made available to Purchaser true, correct and complete copies of the Transferred Leases together with all material amendments and modifications with respect to the Transferred Real Property.
(b) With respect to the Transferred Real Property, neither Seller nor any Divesting Entity has exercised or given any notice of exercise of any option or right of first offer or right of first refusal to purchase, expand, renew or terminate contained in any Transferred Lease.
(c) Neither Seller nor any Divesting Entity has received written notice of any proceedings in eminent domain, condemnation or other similar proceedings that are pending, and Seller has not received notice threatening any such proceedings, in each case, affecting any material portion of the Transferred Real Property and that would, individually or in the aggregate materially reduce the value, use and operation of the Transferred Real Property and the Business. Neither Seller nor any Divesting Entity has received written notice of the existence of any outstanding writ, injunction, decree, order or judgment or of any pending proceeding pertaining to or affecting any material portion of the Transferred Real Property and that would, individually or in the aggregate materially reduce the value, use and operation of the Transferred Real Property and the Business. None of the material improvements located on any parcel of the Transferred Real Property that is material to the Business, taken as a whole, has been damaged by a fire or other casualty and not been restored and repaired either (i) to substantially the same condition they were in prior to such event or (ii) to a condition necessary for the use of Seller or the applicable Divesting Entity in the ordinary course.
(d) To the Knowledge of Seller, there are no conditions or defects, latent or otherwise, to the Transferred Real Property that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding Effect on the Company and Business.
(e) To the Knowledge of Seller, none of Seller’s or any Divesting Entity’s current use of the Transferred Real Property violates any restrictive covenant of record that affects any of the Transferred Real Property or any applicable Laws, in each of its Subsidiaries party thereto andcase, to the knowledge of extent the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both same would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse EffectEffect on the Business.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.
Appears in 1 contract
Sources: Asset Purchase Agreement (Adaptimmune Therapeutics PLC)
Properties. (a) The Company or one Each of its Holdings, the Borrower and the Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiariesto, or valid leasehold interests in, all its real and personal property material to its business (including its Mortgaged Properties), except for minor defects in title that have been acquired after do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.
(b) Each of the date thereof Borrower and the Subsidiaries has complied with all material obligations under all leases to which it is a party and that are material to the Company’s business on Borrower and the Subsidiaries taken as a consolidated basis (except properties sold whole and all such leases are in full force and effect. Each of the Borrower and the Subsidiaries enjoys peaceful and undisturbed possession under all such material leases in which a Borrower or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liensa Subsidiary is a lessee.
(bc) Except as would notEach of Holdings, the Borrower and the Subsidiaries owns, or is licensed or otherwise permitted to use, all trademarks, trade names, copyrights, patents and other intellectual property material to its business, and the use thereof by Holdings, the Borrower and the Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would could not reasonably be expected to have result in a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than Schedule 3.05 sets forth the address of each real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (that is owned or leased by the “Owned Real Property”), neither the Company nor Borrower or any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear Subsidiaries as of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, Effective Date after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, giving effect to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental AuthorityTransactions.
(e) Neither As of the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildingsEffective Date, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectivelyneither Holdings, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company Borrower nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Subsidiaries has received notice of, or has knowledge of, any pending or contemplated condemnation proceeding affecting any Mortgaged Property that may be required to be removed upon termination or any sale or disposition thereof in lieu of the term of the applicable Leasecondemnation. Neither the Company any Mortgaged Property nor any Company Subsidiary has received written notice interest therein is subject to any right of any existingfirst refusal, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain option or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real contractual right to purchase such Mortgaged Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryinterest therein.
Appears in 1 contract
Sources: Credit Agreement (Lpa Services Inc)
Properties. (a) The Company or one of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports Except as being owned by set forth on Schedule 4.07(a), the Company or one of its SubsidiariesSubsidiaries owns good, valid and marketable title to, or that have been acquired after holds pursuant to valid and enforceable leases, all of the date thereof and that are material tangible personal property shown to be owned or leased by it on the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)Latest Balance Sheet, free and clear of all Liens other than the Liens, except for Permitted Liens.
(b) Except as , except where the failure to have such good, valid and marketable title would not, individually or in the aggregate, have had or not reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole. Such tangible personal property, (i) together with the Contracts and that relates to the use or occupancy business relationships of all or any portion of any real property subject to a Lease, exceptContract counterparties, in each case, of the case Company and its Subsidiaries, constitutes all of the assets, rights and properties necessary for the conduct of the business of the Company and its Subsidiaries as presently conducted, (ii) if owned by the Company or any of its Subsidiaries, has been maintained in a reasonably prudent manner and is in good operating condition and repair, ordinary wear and tear excepted, and (iii)) is located on Leased Real Property, except in each case as would not reasonably be expected to have be material to the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(eb) Neither the Company nor any of its Subsidiaries owns, or has ever owned, any real property (other than real estate acquired upon foreclosure in the ordinary course of business).
(c) Schedule 4.07(c) sets forth all real property used by the Company Subsidiary has received from and its Subsidiaries pursuant to leases, subleases, licenses and any Governmental Authority written notice other types of occupancy agreements (any such lease, license or other occupancy agreement, individually, a “Lease” and, collectively, the “Leases” and such real property, the “Leased Real Property”). There are no parties other than the Company and its Subsidiaries in possession of any uncured violation portion of the Leased Real Property, and no Contract grants any Person (other than the Company and its Subsidiaries) the right of use or occupancy of any applicable Laws pertaining to any buildingsportion of the Leased Real Property. Except as set forth on Schedule 4.07(c), structures, fixturesthe Leases are in full force and effect, and the Company or its Subsidiaries holds a valid and existing leasehold interest under each of the Leases, free and clear of all Liens other improvementsthan Permitted Liens. The Company has delivered or made available to the Purchaser complete and accurate copies of each of the leases described on Schedule 4.07(c). Except as set forth on Schedule 4.07(c), including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in no third party currently occupies or uses the Leased Real Property and pursuant to any sublease, license or occupancy agreement. No other real property other than the Owned Leased Real Property is used in the operation of the business of the Company and its Subsidiaries as currently conducted.
(collectivelyd) The Leased Real Property is, the “Improvements”)in all material respects, including those pertaining in good condition and repair and adequate to health and safety, zoning, buildingoperate such facilities as currently used, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, there are no facts or Improvements to conditions affecting any of the Leased Real Property that may which would interfere in any significant respect with the current use, occupancy or operation thereof which interference would reasonably be required expected to be removed upon termination of the term of the applicable Lease. Neither material to the Company nor any Company Subsidiary has received written notice of any existingand its Subsidiaries, proposed, or, to the actual knowledge of the Company (without taken as a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiarywhole.
Appears in 1 contract
Sources: Securities Purchase Agreement (New Residential Investment Corp.)
Properties. (a) The Except as has not had, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or one of its Subsidiaries a Subsidiary thereof has good and, in the case of Owned Real Property only, marketable title to to, or, in the case of property held under a lease or other Contract, a valid leasehold interest in, all of the personal owned or leased properties and assets of the Company and its Subsidiaries, including all assets reflected in the latest audited most recent consolidated balance sheet of the Company included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis of such balance sheet (except properties for such assets that have been sold or otherwise disposed of since the such balance sheet date thereof in the ordinary course of business), . The Company or a Subsidiary thereof owns all Owned Real Property and owned material assets free and clear of all Liens Liens, other than the Permitted Liens.
(b) Section 3.20 of the Company Disclosure Letter contains a complete and accurate list of each Owned Real Property, including the municipal addresses (if applicable) and legal descriptions of such Owned Real Property. Except as would notnot have, or would not reasonably be expected to have, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: , (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto andthere are no existing or, to the knowledge Knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation contemplated or inquiry), threatened, eminent domain or other public acquisition proceeding threatened expropriation proceedings that would result in the taking of all or any part of any Leased Real Property or the Owned Real Property or that would prevent or hinder adversely affect the continued current use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used or any part of it; (ii) the Improvements on the Owned Lands are located wholly within the boundaries of the Owned Lands and do not encroach upon any registered or unregistered easement or right‑of‑way affecting the Owned Lands; (iii) there is no encroachment onto the Owned Lands by buildings or improvements from any adjoining lands; (iv) the Improvements on the Owned Lands are suitable and adequate for the purposes for which they have been designed; (v) all amounts for labour and materials relating to the construction and repair of the Improvements on the Owned Lands have been paid in full and, except for Permitted Liens, no one has a right to file a construction, builders’, mechanics’ or similar lien in respect of the conduct payment of such amounts under any applicable Law; (vi) each parcel of the Real Property has full and free legally enforceable access to and from public highways, which access is sufficient for the purposes of the operation of the business in the ordinary course, and neither the Company nor any Subsidiary of the Company has knowledge of any fact or condition that would result in the interruption or termination of such access; (vii) the Company has not received notice and has no other information or knowledge of any work orders, deficiency notices or other similar notices of non-compliance issued by any Governmental Authorities or otherwise with respect to the Real Property that are outstanding requiring or recommending that work or repairs in connection with the Real Property or any part thereof are necessary, desirable or required; (viii) all Taxes and utilities with respect to the Real Property that are due have been paid in full, and there are no local improvement charges or special levies outstanding in respect of the Owned Real Property and neither the Company nor any Subsidiary of the Company has received any notice of proposed local improvement charges or special levies; (ix) all utilities required for the operation of the business in the ordinary course of business from the Real Property connect into the Real Property through adjoining public highways or, if they pass through adjoining private land, do so in accordance with valid registered easements and are sufficient for the operation of the Real Property for purposes of the business conducted thereon; and (x) the Lands are zoned so as to permit their current use.
(c) Section 3.20 of the Company Disclosure Letter contains a complete and accurate list of each Company Lease including: (a) the date of the Company Lease and any amendments to it and (b) the municipal address (if applicable), legal description (if applicable) and applicable unit (if applicable) of each Leased Real Property. As of the date hereof, the Company has delivered to or made available to Purchaser a true and complete copy of each Company Lease. Except as would not have, or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each Company Lease is in full force and effect and is a valid and binding obligation of the Company or its Subsidiaries, as the case may be, except as may be limited by the Enforceability Exceptions, and (ii) neither the Company nor any of its Subsidiaries is, nor, to the Knowledge of the Company, is any other party (in each case, with or without notice or lapse of time, or both) in breach or default under any Company SubsidiaryLease. Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the current use of each Leased Real Property complies with applicable Laws and the applicable premises (including all related fixtures and improvements) are adequate and suitable for the purposes for which they are presently being used by the Company or a Subsidiary thereof. None of the Company Leases has been assigned by the Company or a Subsidiary thereof.
(d) The assets of the Company include all of those assets (real, personal and tangible) necessary to conduct the business of the Company as presently conducted and all of the Company’s machinery, equipment and other tangible personal property and assets are in good condition and repair in all material respects, ordinary wear and tear excepted, and are useable in the ordinary course of business.
Appears in 1 contract
Properties. (a) The Company or one Each of Parent and its Subsidiaries has good and marketable title to to, or valid leasehold interests in, all the personal properties and assets reflected purported to be owned or leased by it, respectively, in Parent’s annual report on Form 10-K for the year ended December 31, 2013, except for such properties and assets as are no longer used or useful in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one conduct of its Subsidiaries, businesses or that as have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), and except for defects in title, easements, restrictive covenants and similar encumbrances or impediments that, individually or in the aggregate, do not and will not materially interfere with its ability to conduct its business as currently conducted. All such assets and properties are free and clear of all Liens Liens, other than the Permitted Liens.
(b) Except as would notEach of Parent and its Subsidiaries has complied, individually or in all material respects, with the aggregateterms of all leases, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant subleases, easements, licenses and other occupancy agreements to which the Company it is a party and the Company Subsidiaries leases or licenses any real property (collectivelyunder which it is in occupancy, the “Leases” and each all such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is agreements are in full force and effect; (ii) there is no breach or default under any Lease by the Company or any . Each of Parent and its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default enjoys peaceful and undisturbed possession under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effectsuch agreements.
(c) The Company has made available assets, properties and rights owned or leased by Parent or and its Subsidiaries comprise all the assets, properties and rights utilized by Parent or any of its Subsidiaries in the operation of their respective businesses as presently conducted, and, in the aggregate, are sufficient to Purchaser correct permit Parent and complete copies of all Leases, if any, including any amendments theretoits Subsidiaries to operate their respective businesses as presently conducted.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ All items of operating equipment owned or leased by Parent and certain land located its Subsidiaries are in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title a state of repair so as to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereonbe adequate, in any court or before any Governmental Authorityall material respects, for operations in the areas in which they are operated.
(e) Neither Section 6.15(e) of the Company nor any Company Subsidiary has received from any Governmental Authority written notice Parent Disclosure Letter sets forth a true and complete list of any uncured violation of any applicable Laws pertaining to any buildingsall real property, structuresfacilities, fixtures, office space and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, similar property owned by Parent or Improvements to any of its Subsidiaries, together with the Leased Real Property that may be required to be removed upon termination physical address of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued and primary use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiaryfor each such property.
Appears in 1 contract
Properties. (a) The Company or one of its Subsidiaries has good title Except where the failure to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liens.
(b) Except as would notdo so, individually or in the aggregate, have has not had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
, the Company or a Company Subsidiary has good, valid and defensible title to, and defensible and insurable fee simple interest in or a valid leasehold interest in, each of the material real properties (cexcept for any of the Company’s or any Company Subsidiaries’ Oil and Gas Properties, which are subject to Section 4.15 and shall not constitute a Company Property for the purposes of this Agreement) The the Company has made available to Purchaser correct and complete copies of all Leasesowns or leases, if anyas applicable (each, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the a “Owned Real Company Property”), in each case free and clear of all conditions, encroachments, easements, rights of way, restrictions and Liens, except for Permitted Liens and conditions, encroachments, easements, rights of way, restrictions or Liens which do not, individually or in the aggregate, materially impair and would not reasonably be expected to materially impair the continued use and operation of the real properties to which they relate in the conduct of the business of the Company and each Company Subsidiary as presently conducted. Except for matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any Company Subsidiary owns has received notice to the effect that there are any real propertycondemnation, expropriation or other Proceedings that are pending or, to the Knowledge of the Company, threatened with respect to any material portion of any of the Company Properties. The Except for the owners of the properties in which the Company or the applicable a Company Subsidiary has a leasehold interest, no Person other than the Company or a Company Subsidiary has any ownership interest in any of the Company Properties owned by the Company or a Company Subsidiary.
(b) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any Company Subsidiary has good and indefeasible fee simple title leased, subleased or otherwise granted to all of any Person the Owned Real Property, free and clear of right to use or occupy any LiensCompany Property or any portion thereof, (ii) there are no leasesoutstanding options, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options rights of first offer or rights of first refusal to purchase the Owned Real or lease any Company Property or any portion thereof or interest therein, (iii) there are no boundary disputes relating to any Company Property and no encroachments materially and adversely affecting the Owned Real use of any Company Property is not currently being offered for sale, and (iv) neither with respect to each Company Property, all material buildings, structures, fixtures and improvements are in all respects adequate and sufficient and in satisfactory condition to support the operations of the Company nor any and each Company Subsidiary is as presently conducted.
(c) Except as, individually or in defaultthe aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) policies of title insurance or has ever updates or endorsements have been issued, insuring Company’s or the applicable Company Subsidiary’s fee simple title to each of the Company Properties listed on Section 4.19(c) of the Company Disclosure Letter owned by the Company or a Company Subsidiary, in default, under any restrictive covenants affecting amounts at least equal to the Owned Real purchase price paid for ownership of such Company Property, and no event (ii) there has occurred that, after notice or the lapse of time or both, would constitute not been any Claim made against any such a default, policy that has not been resolved and (viii) there is no proceeding suit, action or claim other Proceeding pending or, to the knowledge Knowledge of Company, threatened, against the Company, any Company Subsidiary, threatened against or affecting the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary challenging the Company’s or the applicable Company Subsidiary’s fee simple title to each of the Company Properties owned by the Company or a Company Subsidiary.
(d) Each of the Company and each Company Subsidiary has complied with the terms of all leases pursuant to which the Company or a Company Subsidiary has a leasehold interest in the Company Properties (the “Company Leases”), and all such Company Leases are in full force and effect, except for such noncompliance or failure to be in full force and effect that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, to the Knowledge of the Company, there are no disputes between the Company or any Company Subsidiary and any landlord under the Company Leases, nor are there any claims or events of default or threats of any claims or events of default with respect to any Company Lease.
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Properties. (a) The Company or one As of its Subsidiaries has good title to all the personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and of this Agreement, the Perfection Certificate sets forth the address of each parcel of real property (or each set of parcels that are material to the Company’s business on a consolidated basis (except properties sold collectively comprise one operating property) that is owned or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all Liens other than the Permitted Liensleased by each Loan Party.
(b) Except as would not, individually or in Each of the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company Borrower and each of the Subsidiaries has good fee simple title to, or valid leasehold interests in, or easements or other limited property interests in, all its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto Real Estate Assets (including any Mortgaged Properties) and is in full force and effect; (ii) there is no breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest marketable title to its personal property and assets, in each parcel of real property which is subject case, except for defects in title that do not materially interfere with its ability to a Lease conduct its business as currently conducted or to utilize such properties and assets for their intended purposes and except where the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported failure to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as such title would not reasonably be expected to have a Company Material Adverse Effect. All such properties and assets are free and clear of Liens, other than (i) Permitted Liens, (ii) Liens arising by operation of law and (iii) minor defects in title that do not materially interfere with the ability of Holdings and its Subsidiaries to conduct their businesses.
(c) As of the Closing Date, no Responsible Officer of Holdings, the Borrower or any Subsidiary has received any written notice of, nor has any knowledge of, any pending or contemplated condemnation proceeding affecting any of the Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.
(d) To the knowledge of each Responsible Officer of the Borrower, as of the Closing Date, none of the Borrower or any Subsidiary is obligated under any right of first refusal, option or other contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein.
(e) To the knowledge of each Responsible Officer of the Borrower, each of the Borrower and each of the Subsidiaries has complied with all obligations under all leases to which it is a party, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect, and all such leases are in full force and effect, except leases in respect of which the failure to be in full force and effect would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(cf) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real property. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all Each of the Owned Real Property, free Borrower and clear of any Liens, (ii) there are no leases, licensesthe Subsidiaries owns or possesses, or occupancy agreements is licensed to use, all patents, trademarks, service marks, trade names and copyrights and all licenses and rights with respect to the foregoing, necessary for the present conduct of its business, without any conflict with the rights of others, and free from any burdensome restrictions on the present conduct of its business, except where such failure to own, possess or hold pursuant to which any third party is granted the right a license or such conflicts and restrictions would not reasonably be expected to use the Owned Real Propertyhave, (iii) there are no outstanding options individually or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectivelyaggregate, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company SubsidiaryMaterial Adverse Effect.
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Properties. (a) The Company or one of its Subsidiaries has good and valid title to to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all the personal of its real properties and tangible assets reflected in the latest audited balance sheet included in that are necessary for the Company SEC Reports and/or its Subsidiaries to conduct their respective businesses as being owned by the Company or one of its Subsidiaries, or that have been acquired after the date thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business)currently conducted, free and clear of all Liens other than (i) Liens for Taxes and assessments not yet past due or the Permitted Liens.
amount or validity of which is being contested in good faith by appropriate proceedings, (bii) Except mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the Ordinary Course of Business of the Company or such Subsidiary that are either not the responsibility and liability of the Company or such Subsidiary or are being bonded over, paid for and/or removed in full prior to the Closing consistent with past practice, (iii) any such matters of record, such as would Liens and other imperfections of title to tangible or real property that do not, individually or in the aggregate, have materially impair the continued ownership, use and operation of the assets to which they relate in the business of the
(b) Each of the Company and its Subsidiaries has complied with the terms of all leases to which it is a party, and all such leases are in full force and effect, except for any such noncompliance or failure to be in full force and effect that, individually or in the aggregate, has not had or and would not reasonably be expected to have a Company Material Adverse Effect: . Each of the Company and its Subsidiaries enjoys peaceful and undisturbed possession under all such leases, except for any such failure to do so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.
(c) Section 4.18(c) of the Company Disclosure Letter sets forth a true and complete list of (i) each lease or license pursuant to which the Company and the Company Subsidiaries leases or licenses any all real property (collectively, the “Leases” and each such property, a “Leased Real Property”) is valid and binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect; (ii) there is no breach or default under any Lease owned by the Company or any of its Subsidiaries or, to and (ii) all real property leased for the knowledge benefit of the Company, any other party thereto; (iii) no event has occurred that with or without the lapse of time or the giving of notice or both would constitute a breach or default under any Lease by the Company or any of its Subsidiaries orSubsidiaries. This Section 4.18 does not relate to intellectual property, to the knowledge of the Company, any other party thereto; (iv) to the knowledge of the Company, the Company or one of its Subsidiaries that is either the tenant or licensee named under the Lease has a good and valid leasehold interest in each parcel of real property which is the subject to a Lease for the full term of the respective Lease free and clear of any Liens; and (v) the Company and Company Subsidiaries are in possession of the properties purported to be leased or licensed thereunder, have not assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease, or portion thereof, and have not entered into with any other person (other than another wholly-owned subsidiary of the Company) any sublease, license or other agreement that is material to the Company and its Subsidiaries, taken as a whole, and that relates to the use or occupancy of all or any portion of any real property subject to a Lease, except, in the case of (ii) and (iii), as would not reasonably be expected to have a Company Material Adverse Effect.
(c) The Company has made available to Purchaser correct and complete copies of all Leases, if any, including any amendments thereto.
(d) Other than the real property commonly known as, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and certain land located in Batavia, Illinois (the “Owned Real Property”), neither the Company nor any Company Subsidiary owns any real propertySection 4.19. The Company or the applicable Company Subsidiary (i) has good and indefeasible fee simple title to all of the Owned Real Property, free and clear of any Liens, (ii) there are no leases, licenses, or occupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, (iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or has ever been in default, under any restrictive covenants affecting the Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would constitute such a default, and (v) there is no proceeding or claim pending or, to the knowledge of Company, threatened, against the Company, any Company Subsidiary, the Owned Real Property or the Improvements (as defined below) or personal property thereon, in any court or before any Governmental Authority.
(e) Neither the Company nor any Company Subsidiary has received from any Governmental Authority written notice of any uncured violation of any applicable Laws pertaining to any buildings, structures, fixtures, and other improvements, including the roof, foundation, floors, and heating, ventilation, air conditioning, mechanical, electrical, and other building systems, included in the Leased Real Property and the Owned Real Property (collectively, the “Improvements”), including those pertaining to health and safety, zoning, building, and construction requirements and the disabled. Neither the Company nor any Company Subsidiary has made any material alterations, additions, or Improvements to any of the Leased Real Property that may be required to be removed upon termination of the term of the applicable Lease. Neither the Company nor any Company Subsidiary has received written notice of any existing, proposed, or, to the actual knowledge of the Company (without a duty of investigation or inquiry), threatened, eminent domain or other public acquisition proceeding that would result in the taking of all or any part of any Leased Real Property or Owned Real Property or that would prevent or hinder the continued use and enjoyment of any Leased Real Property or the Owned Real Property as heretofore used in the conduct of the business of any Company or any Company Subsidiary.Section 4.19
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