Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple. (b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date 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) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the The Company or any Subsidiary as one of its Subsidiaries has good and valid title to, or in the date hereof (case of leased property and leased tangible assets, a valid leasehold interest in, all of its real properties and tangible assets that are necessary for the “Real Property”). The Company and its Subsidiaries to conduct their respective businesses as currently conducted, free and clear of all Liens other than (i) 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, (ii) 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 own any Real not, individually or in the aggregate, 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 fee simple.
the Ordinary Course of Business of the Company or its Subsidiaries (b) “Permitted Liens”). Except as would not be reasonably be expected likely to have, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are tangible personal property currently used in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business of the Company and its Subsidiaries is in the ordinary course good working order, repair and consistent in all material respects with past practice condition (reasonable wear and with the business plans tear excepted).
(b) Each of the Company and its Subsidiaries as has complied with the terms of all leases to which it is a party, and all such leases are in effect on the date hereoffull force and effect, except for the any such noncompliance or failure of the Company or its Subsidiaries to have such rights as would not constitutebe in full force and effect that, individually or in the aggregate, a Material Adverse Effect. Except as would not havereasonably 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 Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by .
(c) Neither the Company and nor any of its Subsidiaries owns or has ever owned any real property. Section 2.18(c) of the Company Disclosure Letter sets forth a true and complete list of all real property leased or licensed for the purposes for which it is currently used or proposed to be used as benefit of the date hereofCompany or any of 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) Section 3.15 has good and marketable and indefeasible title to all the properties, assets and premises owned by the Company or any of its Subsidiaries (the “Company Owned Properties”), free and clear of all Liens of any nature whatsoever, except (i) 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 that are being contested in good faith and for which adequate reserves have been established and reflected on the financial statements of the Disclosure Schedule correctly lists each parcel Company, (iii) easements, rights of real property way, and other similar encumbrances that do not adversely affect the value or affect the use of the properties or assets subject thereto or affected thereby or otherwise impair business operations at such properties as bank facilities and (iv) such imperfections or irregularities of title or Liens as do not materially affect the use of the properties 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 (the “Company Leased Properties” and, collectively with the Company Owned Properties, the “Company Real Property”), free and clear of all Liens of any Subsidiary nature whatsoever, except for Permitted Encumbrances, and is in possession of the properties purported to be leased thereunder, and each such lease is valid without default thereunder by the lessee or sublessee or, 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 real 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, including real property designated as “other real estate owned” by the Company and other real property or premises operated by the Company or any of its Subsidiaries as of the date hereof and (the “Real Property”). The ii) all Company Leased Properties and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with a list of all amendments and modifications thereto applicable leases or subleases (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 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 the routine process of payment good operating condition and repair, ordinary wear and tear excepted, and are collectively sufficient to carry on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business respective businesses of the Company and its Subsidiaries in the ordinary course and consistent in all material respects with past practice and with practice. All Company Owned Properties and, to the business plans Knowledge of the Company, all Company Leased Properties conform to all applicable Laws.
(b) As to the Company and its Subsidiaries as in effect on Subsidiaries, none of the date hereofCompany Real Property has been condemned or otherwise taken by any Governmental Entity and, except 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 value for the failure purposes now made of it. None of the Company Real Property is subject to any current interests of third parties or other restrictions or limitations that would impair or be inconsistent with the current use of such Company Real Property by the Company or such Subsidiary.
(c) The Company has delivered to 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 have such any of the Company Real Property: (i) title commitments together with legible copies of all underlying exceptions, (ii) title policies, (iii) environmental reports, (iv) zoning reports and zoning letters, (v) licenses and permits, and (vi) Leases and any amendments or renewals thereof.
(d) Neither the Company nor any of its Subsidiaries has leased, subleased, licensed or granted occupancy rights as would not constitutein any portion or any parcel of Company Real Property, 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 other litigation is pending orand, to the knowledge Knowledge of Sellerthe Company, threatened which would preclude no other Person has any rights to the use, occupancy or impair the use of enjoyment thereof pursuant to any such Real Property 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 and or its Subsidiaries, whether or not covered by insurance.
(f) Neither the Company nor any of its Subsidiaries for has granted any options or rights of first refusal to purchase any Company Owned Property (or any portion thereof or interest therein).
(g) The Company Owned Property is occupied under a valid certificate of occupancy or similar permit. The Mergers will not require the purposes for issuance of any new or amended certificate of occupancy and, to the Knowledge of the Company, there are no facts that would prevent the Company Owned Property from being occupied by Parent after the Closing in the same manner as occupied by the Company immediately prior to the Closing.
(h) Neither the Company nor any 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 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 it is currently used detract from the use thereof. There are no outstanding requirements or proposed 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 used as done on any such property.
(j) Each of the date hereofLeases 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 of the Leases that has not since been rescinded.
(l) None of the Leases referred to in the Company Disclosure Schedule will expire prior to the Effective Time pursuant to their terms.
(m) Neither the Company nor any of its Subsidiaries has (i) assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any of its rights and interest in any of the Leases or (ii) collaterally assigned or granted any other security interests in any Lease or any interest 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) Section 3.15 The Borrowers and each of their Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or valid leasehold interests in, or easements or other limited property interests in or in the Disclosure Schedule correctly lists 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 parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof case, except (the “Real Property”). The Company and its Subsidiaries i) for defects in title that do not own any Real Property in fee simplematerially interfere with their ability to conduct their business as currently conducted or to utilize such properties and assets for their intended purposes or (ii) where the failure to have such title or rights would not reasonably be expected to have a Material Adverse Effect.
(b) Except The Borrowers and their Restricted Subsidiaries solely and exclusively own or otherwise have a valid license or right to use all rights in any and all intellectual property or other similar proprietary rights throughout the world, including any and 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, “IP Rights”) that are used in, held for use in or otherwise necessary for their respective businesses as presently conducted without any infringement, dilution, misappropriation or other violation of the 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: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary or, to To the knowledge of Sellerthe Borrowers, any other party thereto, has violated neither the Borrowers nor any of the terms their Restricted Subsidiaries infringes upon, misuses, dilutes, misappropriates or conditions under otherwise violates any IP Rights held by any Person, except any such Leaseinfringement, except for any such violations which misuse, dilution, misappropriation or other violation would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electricNo claim or litigation regarding any IP Rights is pending or, light, telephone and water utilities with respect to all Real Property for operation the knowledge of the business of the Company and its Subsidiaries Borrowers, threatened 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 hereofwriting against Borrower or any Restricted Subsidiary, except for the failure of the Company or its Subsidiaries that would reasonably be expected 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
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) Section 3.15 of Except as would not reasonably be expected to have, individually or in the Disclosure Schedule correctly lists each parcel of real property leased or subleased by aggregate, a Material Adverse Effect on the Company or any Subsidiary as of Company, the date hereof (the “Real Property”). The Company and its Subsidiaries do not own have good and marketable title to, or valid leasehold interests in, all 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, free and clear of any Real Property Liens, title defects, covenants or reservations of interests in fee simpletitle except for Permitted Liens.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: Effect on the Company, (i) each material lease lease, sublease or license under which the Company or any of Real Propertyits Subsidiaries leases, together with all amendments and modifications thereto subleases or licenses any real property (each, a “Lease”) is valid, binding and in full force and effect in accordance with its terms; effect, (ii) all material amounts due neither the Company nor any of its Subsidiaries, nor to the 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 payable as rent due neither the Company nor any of its Subsidiaries has received notice in writing alleging that it has breached, violated or defaulted under each such Lease have been paid in full (except that routine reconciliations of typical lease charges such as taxesany Lease, 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case neither the lessee Company nor any of its Subsidiaries is currently subleasing, licensing or an affiliate has been in peaceable possession since otherwise granting any Person the commencement of right to use or occupy the original term of such premises demised under the Lease and no material waiver(the “Leased Real Property”) or any portion thereof, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledgeas of the date hereof, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither neither the Company nor any Subsidiary orof its Subsidiaries has received written notice of any pending, and to the knowledge of Seller, any other party thereto, has violated any Knowledge of the Company, there is no threatened, condemnation proceeding with respect to any Leased Real Property. As of the Effective Time (and assuming receipt of any applicable consent required pursuant to the terms of a lease), the Surviving Corporation or one of its Subsidiaries will hold such Leased Real Property on terms and conditions under any such Leasein all material respects the same as those set forth in the applicable Lease as of the date hereof, except for any such violations which as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofCompany.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Palm Inc), Merger Agreement (Hewlett Packard Co)
Properties. (a) Section 3.15 The Company or one of its Subsidiaries has good title to all the Disclosure Schedule correctly lists each parcel of real property leased or subleased personal properties and assets reflected in the latest audited balance sheet included in the Company SEC Reports as being owned by the Company or any Subsidiary as one of its Subsidiaries, or that have been acquired after the date hereof thereof and that are material to the Company’s business on a consolidated basis (except properties sold or otherwise disposed of since the “Real Property”date thereof in the ordinary course of business). The Company , free and its Subsidiaries do not own any Real Property in fee simpleclear of all Liens other than the Permitted Liens.
(b) Except as would not reasonably be expected to havenot, individually or in the aggregate, have had or reasonably be expected to have a Company Material Adverse Effect: (i) each material lease of Real Propertyor license pursuant to which the Company and the Company Subsidiaries leases or licenses any real property (collectively, together with all amendments the “Leases” and modifications thereto (eacheach such property, a “LeaseLeased 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 in accordance with its termseffect; (ii) all material amounts due and payable as rent due there is no breach or default under each such any Lease have been paid in full (except that routine reconciliations by the Company or any of typical lease charges such as taxesits Subsidiaries or, common area maintenance paymentsto the knowledge of the Company, insurance and the like may still be owed for prior years if such amounts have not been billed by landlords or are in the routine process of payment on the date hereof or are being disputed)any other party thereto; (iii) in each case no event has occurred that with or without the lessee lapse of time or an affiliate has been in peaceable possession since the commencement 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 original term of such Lease and no material waiverCompany, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessorany other party thereto; and (iv) to Seller’s knowledgethe 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 exists are no material default leases, licenses, or eventoccupancy agreements pursuant to which any third party is granted the right to use the Owned Real Property, occurrence(iii) there are no outstanding options or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein, condition and the Owned Real Property is not currently being offered for sale, (iv) neither the Company nor any Company Subsidiary is in default, or act whichhas ever been in default, with under any restrictive covenants affecting the giving of Owned Real Property, and no event has occurred that, after notice or the lapse of time or both, would become constitute such a default under such Lease allowing default, and (v) there is no proceeding or claim pending or, to the landlord 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 terminate such 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 Sellerthe Company (without a duty of investigation or inquiry), any threatened, eminent domain or other party thereto, has violated any of the terms or conditions under any such Lease, except for any such violations which public acquisition proceeding that would not have, individually or result in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights taking of ingress and egress and adequate electric, light, telephone and water utilities with respect to all or any part of any Leased Real Property for operation 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 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 any 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofSubsidiary.
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) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: , the Company and its Subsidiaries have good and marketable title to, or in the case of leased property and assets have valid leasehold interests in, all property and assets (iwhether real, personal, tangible or intangible) 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.
(b) Section 4.14(b) of the Company Disclosure Schedule contains a true and complete list, as of the date hereof, of all real property owned by the Company and its Subsidiaries (the “Owned Real Property”).
(c) Section 4.14(c) of the Company Disclosure Schedule contains a true and complete list, as of the date hereof, or each material lease of Real Propertylease, together with all amendments and modifications thereto sublease or license (each, a “Lease”) is in full force under which the Company or any of its Subsidiaries leases, subleases or licenses any real property (the “Leased Real Property” and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, together with the giving of notice or Owned Real Property, the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease“Company Real Property”). 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 Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The , (i) each Lease 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, 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 have adequate rights of ingress and egress and adequate electrichas received notice that it has breached, light, telephone and 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 violated or its Subsidiaries to have such rights as would not constitute, individually or in the aggregate, a Material Adverse Effect. defaulted under any Lease.
(d) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Company Real Property and any plants, buildings, structures and equipment thereon owned or leased by the 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 (given due account to the age and length of use of same, ordinary wear and tear excepted), are adequate and suitable for their present and intended uses and, to the purposes for which it is currently used or proposed to be used as Company’s knowledge, in the case of buildings (including the date hereofroofs thereof), are structurally sound.
Appears in 2 contracts
Sources: Merger Agreement (Smith & Nephew PLC), Merger Agreement (Arthrocare Corp)
Properties. (a) Section 3.15 of Except as would not reasonably be expected to have, individually or in the Disclosure Schedule correctly lists each parcel of real property leased or subleased by aggregate, a Company Material Adverse Effect, the Company or any Subsidiary as one of its Subsidiaries has good and valid title to, or valid leasehold or other ownership interest or rights in, each of the date hereof material real properties (except for any of the Company’s or any its Subsidiaries’ Oil and Gas Properties, which are subject to Section 3.25 and shall not constitute a Company Property for the purposes of this Agreement) reflected as an asset on the most recent balance sheet of the Company included in the Company SEC Documents (each, a “Real Company Property”). The , 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 the Company and each of its Subsidiaries do as presently conducted. Except for matters that, individually or in the aggregate, have not own had and would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any Real Property in fee simpleof 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 material portion of any of 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 has 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 material lease of Real Company Property, together with all amendments material buildings, structures, fixtures and modifications thereto 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.
(eachc) Each lease pursuant to which the Company or one of its Subsidiaries has a leasehold interest in the Company Properties, a “Lease”) to the knowledge of the Company, is in full force and effect and is valid and enforceable against the parties thereto in accordance with its terms; (ii) all material amounts due and payable , subject, 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary orenforceability, to the knowledge of Seller, any other party thereto, has violated any of the terms or conditions under any such LeaseCreditors’ Rights, except for any such violations which would not havefailure 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. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Parsley Energy, Inc.)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(bi) Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a an AMB Material Adverse Effect: , AMB or a Subsidiary of AMB 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 AMB included in the AMB SEC Documents (ieach an “AMB Property” and collectively the “AMB Properties”), in each case free and clear of all Liens except for (A) each material lease debt and other matters set forth in Section 3.1(o)(i) of Real Propertythe AMB Disclosure Letter, together with all amendments (B) inchoate mechanics’, workmen’s, repairmen’s and modifications thereto other inchoate Liens imposed for construction work in progress or otherwise incurred in the ordinary course of business, (eachC) mechanics’, a “Lease”workmen’s and repairmen’s Liens (other than inchoate Liens for work in progress) is in full force and effect in accordance with its terms; which have heretofore been bonded or insured, (iiD) all material amounts matters disclosed on existing title policies or surveys, (E) real estate Taxes and special assessments not yet due and payable as rent due under each such Lease have been paid or which are being contested 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 are good faith in the routine process ordinary course of payment business, and (F) Liens and other encumbrances that would not cause a material adverse effect on the date hereof value or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement use of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Leaseaffected property. 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 Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a an AMB Material Adverse Effect. The Company and its Subsidiaries have adequate rights , none of ingress and egress and adequate electricAMB nor any Subsidiary of AMB has received written notice to the effect that there are any condemnation proceedings that are pending or, lightto the knowledge of AMB, telephone and water utilities threatened with respect to all Real Property for operation any material portion of any of the business AMB Properties. Except for the owners of the Company properties in which AMB or any Subsidiary of AMB has a leasehold interest and its Subsidiaries except for any AMB Property that is held by a joint venture or fund, no Person other than AMB or a Subsidiary of AMB has any ownership interest in the ordinary course and consistent in all material respects with past practice and with the business plans any 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. AMB Properties.
(ii) Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a an AMB Material Adverse Effect, policies of title insurance or updates or endorsements have been issued, insuring AMB’s or the applic- able Subsidiary of AMB’s fee simple title to each of the AMB Properties owned by AMB and acquired in the past five years, in amounts at least equal to the 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 no condemnation proceeding material claim has been made against any such policy that has not been resolved.
(iii) AMB and any Subsidiary of AMB (A) have not received written notice of any structural defects, or violation of Law, relating to any AMB Property which would have, or would reasonably be expected to have, individually or in the 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 restoration and the loss of revenue.
(iv) Except for secured loan documents entered into in the ordinary course of business, there are no written agreements which restrict AMB or any Subsidiary of AMB from transferring any of the AMB Properties, and none of the AMB Properties is subject to any restriction on the sale or other litigation is pending ordisposition thereof (other than rights of first offer or rights of first refusal or tenant options as would not have, or would not reasonably be expected to have, individually or in the knowledge aggregate, an AMB Material Adverse Effect) or on the financing or release of Sellerfinancing thereon.
(v) AMB and the Subsidiaries of AMB have good and sufficient title to, threatened which 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 preclude not have, or impair would not reasonably be expected to have, individually or in the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofaggregate, an AMB Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Prologis), Merger Agreement (Amb Property Lp)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as As of the date hereof (of this Agreement, Schedule 3.05 sets forth the “address of each Material Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simpleEstate Asset owned by such Loan Party.
(b) Except [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, 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 Section 3.05(d) through (f)), in each case, except (i) 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 for their intended purposes or (ii) where the failure to have such title or rights would not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect: (i) each material lease . All such properties and assets are free and clear of Real PropertyLiens, together other than Permitted Liens, liens arising by operation of law, and minor defects in title which do not mutually interfere with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement ability of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and Loan Parties to conduct their businesses.
(ivd) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary or, to To the knowledge of Sellerthe Borrowers, any 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 party theretorights in works of authorship (including all copyrights embodied in software) and all other intellectual property rights (the foregoing, has violated any collectively, “IP Rights”) needed to conduct the businesses of the terms or conditions under any such LeaseLoan Parties as presently conducted, except for any where such violations which failure to own or license or have rights to use would not have, individually or in the aggregate, a Material Adverse Effect. The Company and To the knowledge of the Borrowers, no Loan Party, nor the operation of its Subsidiaries have adequate business as presently conducted, infringes upon, misuses, or misappropriates any intellectual property rights of ingress and egress and adequate electric, light, telephone and 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 hereofany third party, except for the failure of the Company where such infringement, misuse or its Subsidiaries to have such rights as would not constitute, individually or in the aggregate, a Material Adverse Effect. Except as misappropriation would not have, individually or in the aggregate, a Material Adverse Effect.
(e) Each Loan Party has taken commercially reasonable steps to maintain the confidentiality of all confidential and proprietary information that is owned by such Loan Party, no condemnation proceeding or other litigation is pending or, material to the knowledge business of Sellersuch Loan Party and that such Loan Party holds or purports to hold as a trade secret.
(f) No Loan Party has incorporated into any Proprietary Software Products any software that is available under an open-source software license (collectively, threatened which would preclude or impair the use “Open Source Software”), including any version of any software licensed pursuant to any GNU public license, in a manner that, with respect to software that such Real Property by Loan Party intends to maintain as proprietary and deems material to the Company and its Subsidiaries value of the Proprietary Software Product, would (i) require disclosure or distribution of such Proprietary Software Product in source code form; (ii) require the licensing of such Proprietary Software Product for the purposes for which it is currently used purpose of making derivative works thereof; or proposed (iii) impose any material restriction on the consideration to be used as charged for the distribution of the date hereofsuch 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) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as has not had or would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 the Company and the like may still be owed for prior years if such amounts Company Subsidiaries have not been billed by landlords good and marketable title, in fee or are in the routine process valid leasehold, easement, license, right of payment on the date hereof way or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary orother rights, to the knowledge Retained Assets necessary to permit the Company and the Company Subsidiaries to conduct their business with respect to the Retained Assets as currently conducted free and clear of Sellerany Liens, options, rights of first refusal, rights of first offer or any similar options to purchase or lease all or any portion of the Retained Assets, conditions, encroachments, easements, rights-of-way, restrictions or other party theretosimilar encumbrances, has violated other than Permitted Liens. In the case of any such real property leased by the Company or any of the terms Company Subsidiaries or conditions under subject to an easement or other rights of use for the benefit of the Company or any such Leaseof the Company Subsidiaries, except for any such violations which as has not had or would not havenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 there exists no uncured breach or default on the date hereof, except for the failure part of the Company or its any of the Company Subsidiaries or, to have such rights the knowledge of the Company, the landlord, under the applicable lease, or the 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 condemnation or eminent domain) pending, or to the knowledge of the Company threatened in writing, with respect to any real property that the Company or any of the Company Subsidiaries owns, leases or operates in the Retained Assets, except as has not had or would not constitutenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as would not have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (InfraREIT, Inc.)
Properties. (a) Section 3.15 SOR has made available to SOR II a list of the Disclosure Schedule correctly lists each parcel of real property currently owned or ground leased or subleased by the Company 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 the date hereof SOR Disclosure Letter or as disclosed in title insurance policies and reports (and the “Real Property”). The Company documents or surveys referenced in such policies and its Subsidiaries do reports): (A) SOR or a SOR Subsidiary owns fee simple title to each of the SOR Properties, free and clear of Liens, except for Permitted Liens; (B) except as has not own any Real Property in fee simple.
(b) Except as had and would not reasonably be expected to havenot, individually or in the aggregate, have a SOR Material Adverse Effect: (i) each material lease , neither SOR nor any SOR Subsidiary has received written notice of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) all material amounts due and payable as rent due under each such Lease have been paid in full (except that routine reconciliations any violation 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 are in the routine process any Law affecting any portion of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement any of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted SOR Properties issued by the lessorany Governmental Authority; and (ivC) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, except as would 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 havenot, individually or in the aggregate, have a SOR Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities neither SOR nor any SOR Subsidiary has received notice to the effect that there are (1) condemnation or rezoning proceedings that are pending or threatened with respect to all Real Property for operation any of the business SOR Properties or (2) zoning, building or similar Laws, codes, ordinances, orders or regulations that are or will be violated by the continued maintenance, operation or use of any buildings or other improvements on any of the Company and its Subsidiaries in SOR Properties or by the ordinary course and consistent in all material respects with past practice and with the business plans continued maintenance, operation or use of the Company and its Subsidiaries as in effect on parking areas.
(b) SOR has not received written notice of, nor does SOR have any Knowledge of, any material latent defects or adverse physical conditions affecting any of the date hereofSOR Properties or the improvements thereon, except for the failure of the Company or its Subsidiaries to have such rights as would not constitutenot, individually or in the aggregate, have a SOR Material Adverse Effect.
(c) 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. Except as would not have, individually or in Neither SOR’s nor the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use SOR Subsidiaries’ ownership of any such Real personal property is subject to any Liens, other than Permitted Liens.
(d) A policy of title insurance has been issued for each SOR Property insuring, as of the effective date of such insurance policy, (i)(A) fee simple title interest held by SOR or the Company applicable SOR Subsidiary with respect to SOR Properties that are not subject to ground leases and its Subsidiaries for (B) a valid leasehold estate held by SOR or the purposes for which it is currently used or proposed applicable SOR Subsidiary that are subject to be used ground leases and (ii) to the Knowledge of SOR, such insurance policies are in full force and effect, and no material claim has been made against any such policy that remains outstanding as of the date of hereof.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Oak Strategic Opportunity REIT II, Inc.), Merger Agreement (Pacific Oak Strategic Opportunity REIT, Inc.)
Properties. (a) Subject to the Liens expressly permitted by Section 3.15 of 6.02, the Disclosure Schedule correctly lists Borrower and each parcel of real property leased or subleased by Restricted Subsidiary is the Company or any Subsidiary as of sole owner of, and has good record title to, the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property described in fee simple.
(bSchedule 3.05(e) Except as and is the sole owner of and has good and valid title to, all other real and personal property material to its business, including the real and personal property described in Schedule 3.05(e), in each case except where the failure to have such title or interest does not or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: . The Borrower and each 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 other coal processing facilities, loadouts and other transportation facilities and other tangible personal property now owned or leased by the Borrower and the Restricted Subsidiaries that is necessary to conduct their business as it is now conducted, except where the failure to do so in the aggregate does not or would not reasonably be expected to have a 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.
(ib) The Borrower and each material lease of Real Property, together Restricted Subsidiary has complied with all amendments 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 modifications thereto (eachall such leases are in full force and effect, a “Lease”) is except leases in respect of which the failure to be in full force and effect in accordance with its terms; (ii) all material amounts due and payable as rent due under each such Lease does not or would not reasonably be expected to 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such LeaseMaterial Adverse Effect. Neither the Company nor any Subsidiary or, Subject to the knowledge 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 Seller, any other party thereto, has violated any of which the terms or conditions under any such Lease, except for any such violations which failure to enjoy peaceful and undisturbed possession would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company .
(c) Except as set forth on Schedule 3.05(c), and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 claims that do not and would not constitute, individually or in the aggregate, a Material Adverse Effect. Except as would not have, individually or in the aggregate, reasonably be expected to cause a Material Adverse Effect, no condemnation proceeding or other litigation is pending neither the Borrower nor any of the Restricted Subsidiaries has received written or, to the knowledge of Sellerthe Borrower and the Restricted Subsidiaries, threatened other notice of material claims, which would preclude are still outstanding or impair unresolved, that the use of Borrower or any Restricted Subsidiary has mined any coal that it did not have the right to mine or mined any coal in such Real Property by a manner as to give rise to any material claims for loss, waste or trespass, and, to the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as knowledge of the date hereofBorrower and each Restricted Subsidiary, no facts exist upon which such a claim could be based.
Appears in 2 contracts
Sources: Credit Agreement (Cloud Peak Energy Inc.), Credit Agreement (Cloud Peak Energy Inc.)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property Except in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Deltic Material Adverse Effect: (i) , Deltic or a Deltic Subsidiary has good and valid title to, and marketable and insurable fee simple interest in or a valid leasehold interest in, each material lease of Real Property, together with all amendments and modifications thereto the real properties reflected as an asset on the most recent balance sheet of Deltic included in the Deltic Reporting Documents (each, a “LeaseDeltic Property”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement free and clear of the original term all conditions, encroachments, easements, rights of such Lease way, restrictions and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeaseLiens, except for any such violations conditions, encroachments, easements, rights of way, restrictions or Liens which would not havedo not, individually or in the aggregate, a Material Adverse Effect. The Company materially impair and its Subsidiaries have adequate rights of ingress would not reasonably be expected to materially impair the continued use and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business of the Company and its Subsidiaries real properties to which they relate in the ordinary course conduct of Deltic and consistent in all material respects with past practice and with the business plans of the Company and its Subsidiaries each Deltic Subsidiary as in effect on the date hereof, except presently conducted. Except for the failure of the Company or its Subsidiaries to have such rights as would not constitutematters that, individually or in the aggregate, have not had and would not reasonably be expected to have a 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 as would not havefor 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 condemnation proceeding 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.
(b) Except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Deltic Material Adverse Effect, (i) neither Deltic nor any Deltic Subsidiary has leased or otherwise granted to any Person the right to use or occupy any Deltic Property or any portion thereof, (ii) there are no outstanding options, rights of first offer or rights of first refusal to purchase any Deltic Property owned by Deltic or any Deltic Subsidiary (an “Owned 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 Deltic Property and (iv) 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 operations of Deltic and each Deltic Subsidiary as presently conducted to the extent related to such Owned Deltic Property.
(c) Except in respects that, individually or 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 issued, insuring Deltic’s or the applicable Deltic Subsidiary’s fee simple title to each of the Owned Deltic Properties that is a manufacturing or similar facility, 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 not been any claim made against any such policy that has not been resolved and (iii) there is no suit, action or other litigation is proceeding pending or, to the knowledge Knowledge of SellerDeltic, threatened against or affecting Deltic or any Deltic Subsidiary challenging Deltic’s or the applicable Deltic Subsidiary’s fee simple title to each of the Owned 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 Deltic Properties, and all such 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 Deltic Material Adverse Effect.
(e) Except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Deltic Material Adverse Effect, neither Deltic nor any Deltic Subsidiary has taken any action which would preclude or impair the use disqualify portions of any such Real Deltic Property by now assessed for ad valorem Taxes on the Company and its Subsidiaries basis of farm, forest or open space for the purposes for which it is currently used continued assessment as farm, forest or proposed to be used as of the date hereofopen space lands.
Appears in 2 contracts
Sources: Merger Agreement (Deltic Timber Corp), Merger Agreement (Potlatch Corp)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(bi) Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a ProLogis Material Adverse Effect: , ProLogis, or a Subsidiary of ProLogis 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 ProLogis included in the ProLogis SEC Documents (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “LeaseProLogis Property” and collectively the “ProLogis Properties”), in each case free and clear of all Liens except for (A) is debt and other matters set forth in full force Section 3.2(o)(i) of the ProLogis Disclosure Letter, (B) inchoate mechanics’, workmen’s, repairmen’s and effect other inchoate Liens imposed for construction work in accordance with its terms; progress or otherwise incurred in the ordinary course of business, (iiC) mechanics’, workmen’s and repairmen’s Liens (other than inchoate Liens for work in progress) which have heretofore been bonded or insured, (D) all material amounts matters disclosed on existing title policies or surveys, (E) real estate Taxes and special assessments not yet due and payable as rent due under each such Lease have been paid or which are being contested 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 are good faith in the routine process ordinary course of payment business, and (F) Liens and other encumbrances that would not cause a material adverse effect on the date hereof value or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement use of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Leaseaffected property. 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 Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a ProLogis Material Adverse Effect. The Company and its Subsidiaries have adequate rights , none of ingress and egress and adequate electricProLogis, lightnor any Subsidiary of ProLogis has received written notice to the effect that there are any condemnation proceedings that are pending or, telephone and water utilities to the knowledge of ProLogis, threatened with respect to all Real Property for operation any material portion of any of the business ProLogis Properties. Except for the owners of the Company properties in which ProLogis or any Subsidiary of ProLogis has a leasehold interest and its Subsidiaries except for any ProLogis Property that is held by a joint venture or fund, no Person other than ProLogis or a Subsidiary of ProLogis has any ownership interest in the ordinary course and consistent in all material respects with past practice and with the business plans any 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. ProLogis Properties.
(ii) Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a ProLogis Material Adverse Effect, policies of title insurance or updates or endorsements have been issued, insuring ProLogis’s or the applicable Subsidiary of ProLogis’s fee simple title to each of the ProLogis Properties owned by ProLogis and acquired in the past five years, in amounts at least equal to the 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 no condemnation proceeding material claim has been made against any such policy that has not been resolved.
(iii) ProLogis or any Subsidiary of ProLogis (A) have not received written notice of any structural defects, or violation of Law, relating to any ProLogis Property which would have, or would reasonably be expected to have, individually or in the 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 restoration and the loss of revenue.
(iv) Except for secured loan documents entered into in the ordinary course of business, there are no written agreements which restrict ProLogis or any Subsidiary of ProLogis from transferring any of the ProLogis Properties, and none of the ProLogis Properties is subject to any restriction on the sale or other litigation is pending ordisposition thereof (other than rights of first offer or rights of first refusal or tenant options as would not have, or would not reasonably be expected to have, individually or in the knowledge aggregate, a ProLogis Material Adverse Effect) or on the financing or release of Sellerfinancing thereon.
(v) ProLogis and the Subsidiaries of ProLogis have good and sufficient title to, threatened which 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 preclude not have, or impair would not reasonably be expected to have, individually or in the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofaggregate, a ProLogis Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Prologis), Merger Agreement (Amb Property Lp)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists The Company and each parcel of real property leased Company Subsidiary has good and valid title to, or subleased by the Company or any Subsidiary as of the date hereof good and valid leasehold interests in, all their respective tangible properties and tangible assets (the “Real PropertyCompany Properties”). The Company and its Subsidiaries do not own any Real Property ) except in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement . All of the original term Company Properties are free and clear of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Leaseall Liens, except for any such violations which would not haveLiens on material Company Properties that, individually or in the aggregate, a Material Adverse Effect. The Company do not materially impair and its Subsidiaries have adequate rights of ingress would not reasonably be expected to materially impair, the continued use and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of such material Company Property to which they relate in the business conduct 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 presently conducted and Liens on the date hereof, except for the failure of the other Company or its Subsidiaries to have such rights as would not constituteProperties that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. Except as would This Section 4.15 does not haverelate to Intellectual Property Rights matters, which are the subject of Section 4.16.
(b) 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 Parent true, correct and complete copies of all leases, lease guaranties, licenses, subleases, agreements for the leasing, use or occupancy of, or otherwise granting a right in or relating to the Company Facilities, including all amendments, terminations and modifications thereof (“Company Leases”). The Company and each of the Company Subsidiaries has complied with the terms of all Company Leases, and 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 condemnation proceeding other party to any Company Lease is (with or other litigation without notice or lapse of time, or both) in breach or default thereunder, in any material respect. The Company and each Company Subsidiary is pending or, in exclusive possession of the properties or assets purported to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by be leased under all the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofLeases.
Appears in 2 contracts
Sources: Merger Agreement (CEB Inc.), Merger Agreement (Gartner Inc)
Properties. (a) Section 3.15 4.14(a) of the Company Disclosure Schedule correctly lists each parcel sets forth a complete and accurate list of all real property leased or subleased owned by the Company or any Subsidiary as and each of the date hereof its Subsidiaries (collectively, the “Owned Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Section 4.14(b) 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 other than parking spaces, common areas or walkways (each, a “Leased Real Property”) and the location of the premises, and all leases, subleases, license agreements (each, a “Lease”) and other similar such agreements, including any amendments or modifications thereto, pursuant to which the Company or any of its Subsidiaries has an interest in the Leased Real Property.
(c) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: , (i) each material lease of the Company and its Subsidiaries has good and valid title in fee simple to all of the Owned Real PropertyProperty and good title to, together 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 all amendments past practice, and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) all material amounts due such properties are free and payable as rent due under each clear of all Liens of any nature whatsoever, except Permitted Liens. All such Lease have been paid properties and assets are in full (except that routine reconciliations good condition and repair, reasonable wear and tear excepted, and are adequate to carry on the business of typical lease charges such as taxes, common area maintenance payments, insurance the Company and the like may still be owed for prior years if such amounts have not been billed by landlords or are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lesseeCompany’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeaseSubsidiaries, except for any such violations which as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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. .
(d) Except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no condemnation proceeding (i) each Lease and each lease under which the Company or other litigation any of its Subsidiaries leases any personal property is pending orvalid and in full force and effect and (ii) neither the Company nor any of its Subsidiaries, nor, to the Company’s knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof, any other party to a Lease or a lease under which the Company or any of its Subsidiaries leases any personal property, is in violation of any provision of any such lease, and there is not, under any of such leases, any existing default or event which with notice or lapse of time or both would become a default, in each case, by the Company or any of its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Hanesbrands Inc.), Merger Agreement (Maidenform Brands, Inc.)
Properties. (a) Section 3.15 Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and its Subsidiaries have good and defensible title to all of the Disclosure Schedule correctly lists each parcel Company Oil and Gas Interests reflected in the Company Reserve Reports or disclosed in the Company SEC Documents and attributable to interests owned by the Company and its Subsidiaries, except for such Company Oil and Gas Interests sold, used or otherwise disposed of since December 31, 2018 in the ordinary course of business, free and clear of all Liens other than 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 subleased by in the aggregate, a Company Material Adverse Effect, (i) each Company Oil and Gas Lease to which the Company or any Subsidiary as 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 date hereof (the “Real Property”). The Company and or any of its Subsidiaries do not own (and, to the Company’s knowledge, no third party operator) has violated any Real Property in fee simpleprovision 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 not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: , (i) either the Company or a Subsidiary of the Company has good and valid title to each material lease real property (and each real property at which operations of the Company or 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, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (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 or any of its Subsidiaries uses or occupies or has the right to use or 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 clear of all material amounts due Liens other than any Company Permitted Liens, and payable as rent due under each such Lease have been paid in full 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 (except that routine reconciliations of typical lease charges such as taxes, common area maintenance payments, insurance and or lessee to the like may still be owed for prior years if such amounts have not been billed by landlords or are extent a leased property) thereof in the routine process operation of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Leaseits business. 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 Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The , (A) each Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation Lease is valid, binding and in full force and effect, subject to the limitation of such enforcement by the business Remedies Exceptions, and (B) no uncured default on the part of the Company and or, if applicable, its Subsidiaries in or, to the ordinary course knowledge of the Company, the landlord thereunder, exists under any Company Real Property Lease, and consistent in all material respects with past practice and no event has occurred or circumstance exists which, with the business plans giving of notice, the passage of time, or both, would constitute a breach or default under a 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. Real Property Lease.
(c) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) there are no condemnation proceeding leases, subleases, licenses, rights or other litigation agreements affecting any portion of the Company Owned Real Property 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, (ii) 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 any Company Owned Real Property or any portion thereof or interest therein that would reasonably be expected to adversely affect the existing use of the Company Owned Real Property by the Company in the operation of its business thereon, and (iii) 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 Owned Real Property 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, individually or in the aggregate, a Company Material Adverse Effect, there is no pending or, to the knowledge of Sellerthe Company, threatened which would preclude threatened, appropriation, condemnation or impair like Action or Order affecting the use Company Owned Real Property or any part thereof or of any such sale or other disposition of the Company Owned Real Property or any part thereof in lieu of condemnation or other matters affecting and impairing the current use, occupancy or value thereof.
(e) 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 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 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 Company Oil and Gas Interests have been timely and properly paid (other than any such Production Burdens which are being held in suspense by Company or its Subsidiaries in accordance with applicable Law).
(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 (other than Environmental Law and those relating to Taxes), and all drilling and completion (and plugging and abandonment) of the Company ▇▇▇▇▇ and such other ▇▇▇▇▇ and all related development, 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 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 purposes for which it is currently used aggregate, a Company Material Adverse Effect.
(i) None of the Company Oil and Gas Interests are subject to any Tax partnership agreement or proposed provisions requiring a partnership income Tax Return to be used as filed under Subchapter K of Chapter 1 of Subtitle A of the date hereofCode.
Appears in 2 contracts
Sources: Merger Agreement (Carrizo Oil & Gas Inc), Merger Agreement (Callon Petroleum Co)
Properties. (a) Section 3.15 The Company or one of the Company Subsidiaries owns fee simple title to each of the real properties identified in Section 3.11(a) of the Company Disclosure Schedule correctly lists each parcel (individually a “Company Property” and collectively the “Company Properties”), which are all of the real estate properties owned by them or in which any of them own a direct or indirect equity interest.
(b) 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 date hereof 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 “Real PropertyLeases”). The Company , have been made available to the Purchaser Parties to the extent that such leases and its Subsidiaries do not own any Real Property other agreements are in fee simple.
(b) Except as the Company’s possession or control, except for omissions that would not reasonably be expected to havenot, individually or in the aggregate, be reasonably 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 material lease posted on the Company’s due diligence data site for this transaction as of Real Propertythe date prior to the date hereof, together with all amendments and modifications thereto or (each, a “Lease”ii) made available for review at the Company’s offices as of the date prior to the date hereof. Each Lease is in full force and effect and is valid, binding and enforceable in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case terms against the lessee or an affiliate has been in peaceable possession since thereunder, and, to the commencement of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to SellerCompany’s knowledge, there exists no material default or event, occurrence, condition or act which, with against the giving of notice or lessor and/or the lapse of time or both, would 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 parties 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 Company Material Adverse Effect. Except as 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 (beyond any applicable notice and cure period), except for such defaults that would not havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no condemnation proceeding .
(c) The Company has made available to the Purchaser Parties (i) all policies of title insurance obtained by the Company or other litigation is pending orthe 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 Sellerthe Company, threatened which would preclude or impair the use no material claim has been made against any of any such Real Property by the Company title policies and its Subsidiaries for the purposes for which it each such title policy is currently used or proposed to be used in full force and effect as of the date hereofhereof and will be in effect as of the Closing Date. As used herein, the term “Permitted Liens” means (i) Liens for Taxes not yet due or delinquent, (ii) inchoate mechanics’ and materialmen’s Liens for construction in progress, (iii) mechanics’, materialmen’s, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Company or the Company Subsidiaries, (iv) 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 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 Leases, (ix) Liens being contested in good faith in the ordinary course of business, and (x) any other Lien that does not materially interfere with the current use of the applicable property or materially adversely affect the value of such property.
Appears in 2 contracts
Sources: Merger Agreement (American Financial Realty Trust), Merger Agreement (Gramercy Capital Corp)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as has not had and would not be reasonably be expected likely to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each material lease , the Company or one of its Subsidiaries has good fee simple title to all Owned Real Property and valid leasehold estates in all Leased Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement free and clear of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Leaseall Encumbrances, except for any such violations which Permitted Encumbrances. Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. The , the Company and or one of its Subsidiaries have adequate rights has exclusive possession of ingress and egress and adequate electric, light, telephone and water utilities with respect to all each Leased Real Property for operation of the business and Owned Real Property, other than any use and occupancy rights granted to third-party owners, tenants or licensees. Other than as listed in Section 3.14 of the Company and Disclosure Letter, neither the Company nor any of its Subsidiaries in is a lessor or grantor under any material lease or other instrument granting to any other Person any right to the ordinary course possession, lease, occupancy or enjoyment of any material Owned Real Property or material portion thereof.
(b) Except as has not had 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 be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, no condemnation proceeding (i) each lease for the Leased Real Property is in full force and 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 litigation similar Laws affecting creditors’ rights generally and general principles of equitable relief, and (ii) there is no default under any lease for the Leased Real Property either by the Company or its Subsidiaries 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 constitute a default by the Company or its Subsidiaries thereunder.
(c) Except as has not had and would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, (i) there are no pending or, to the knowledge Knowledge of Sellerthe Company, threatened which would preclude condemnation or impair eminent domain proceedings that affect any Owned Real Property or Leased Real Property, and (ii) the use Company has not received any written notice of the intention of any such Governmental Entity or other Person to take any Owned Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofLeased Real Property.
Appears in 2 contracts
Sources: Transaction Agreement (Chicago Bridge & Iron Co N V), Transaction Agreement (Shaw Group Inc)
Properties. (a) Section 3.15 4.10(a) of the REIT I Disclosure Schedule correctly Letter lists each parcel hotel and other parcels of real property leased constituting REIT I Properties, and sets forth REIT I or subleased by the Company applicable REIT I Subsidiary owning such REIT I Properties. Except as disclosed in title insurance policies and reports (and the documents or any surveys referenced in such policies and reports): (A) REIT I or a REIT I Subsidiary as owns fee simple title to each of the date hereof REIT I Properties, free and clear of Liens, except for Permitted Liens; (B) except as has not had and would not, individually or in the “Real Property”). The Company aggregate, have a REIT I Material Adverse Effect, neither REIT I nor any REIT I 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 I Properties issued by any Governmental Entity; and its Subsidiaries do not own (C) except as would not, individually or in the aggregate, have a REIT I Material Adverse Effect, neither REIT I nor any Real Property in fee simpleREIT I Subsidiary has received written notice to the effect that there are condemnation or rezoning proceedings that are currently pending or threatened with respect to any of the REIT I Properties.
(b) Except as disclosed in property condition assessments and similar structural engineering reports relating to the REIT I Properties, REIT I has not received written notice of, nor does REIT I have any Knowledge of, any latent defects or adverse physical conditions affecting any of the REIT I Properties or the improvements thereon that have not been corrected or cured prior to the date of this Agreement, except as would not reasonably be expected to havenot, individually or in the aggregate, have a REIT I Material Adverse Effect: .
(ic) each material lease of Real PropertyREIT I and the REIT I Subsidiaries have good title to, together with all amendments or a valid and modifications thereto (eachenforceable leasehold interest in, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 taxespersonal property assets owned, common area maintenance payments, insurance and the like may still be owed used or held for prior years if such amounts have not been billed use by landlords or are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Leasethem. Neither REIT I’s, nor the Company nor any Subsidiary orREIT I Subsidiaries’, 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use ownership of any such Real Property by the Company and its Subsidiaries for the purposes for which it personal property is currently used or proposed subject to be used as of the date hereofany Liens, other than Permitted Liens.
Appears in 2 contracts
Sources: Merger Agreement (Moody National REIT I, Inc.), Agreement and Plan of Merger (Moody National REIT II, Inc.)
Properties. The Company Disclosure Schedule contains a complete and accurate listing of all real property owned by the Company and its Subsidiaries (a) Section 3.15 the "Company Owned Real Property"). The Company or a Subsidiary thereof has good, valid and marketable title to all of the Disclosure Schedule correctly lists Company Owned Real Property and all of their other material properties and assets, in 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 statutory or common law Liens to secure claims for labor, materials or supplies, (F) purchase money security interests incurred in connection with the 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 (G) with respect to Company Owned Real Property only, Liens reflected in title records. Except as does not have and would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company or one of its Subsidiaries has a good and valid leasehold interest in each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof its Subsidiaries (the “Real "Company Leased Property”"). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as does not have and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: , (iA) 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 lease or sublease relating thereto, (B) each material such lease of Real Propertyor sublease is a legal, together with all amendments valid and modifications thereto (eachbinding agreement, a “Lease”) is in full force and effect enforceable in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 Company or a Subsidiary thereof and no material waiver, indulgence or postponement of the lessee’s obligations thereunder other parties thereto, and there is no, nor has been granted by the lessor; Company or any of its Subsidiaries received notice of, any material default thereunder, and (ivC) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither neither the Company nor any Subsidiary or, to the knowledge of Seller, any other party thereto, its Subsidiaries has violated any of the terms or conditions assigned its interest under any such Lease, except for lease or sublease or sublet any such violations which would not have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation part 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofpremises covered thereby.
Appears in 2 contracts
Sources: Merger Agreement (Select Medical Corp), Merger Agreement (EGL Holding CO)
Properties. (a) Section 3.15 Each of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company Obligors and its Subsidiaries has good and marketable title to, or valid leasehold interests in or rights to use, all its real and tangible personal property material to its business, except for minor defects in title that do not own any Real Property in fee simple.
(b) Except interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes and except where the failure to have such title would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: . Such properties and assets are free and clear of Liens (iother than Liens permitted by Section 6.02).
(b) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement Each of the original term 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 such Lease and no material waivertheir respective businesses as currently conducted, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary or, except to the knowledge of Seller, any other party thereto, has violated any of extent such failure to own or be licensed or otherwise have the terms or conditions under rights to use any such Lease, except for any such violations which would not haveIntellectual Property Rights, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 constituteExcept as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. Except : (i) to the knowledge of the Obligors, the use of such Intellectual Property as would not have, individually or described in the aggregatefirst 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, a Material Adverse Effect, misappropriate or otherwise violate the Intellectual Property Rights of any other Person and (ii) no condemnation proceeding such claims or other litigation is litigations are pending or, to the knowledge of Sellerthe Obligors, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as in writing.
(c) As of the date hereofAmendment No. 4 Effective Date, Section 5.10 of the Borrower Disclosure Letter contains a true, accurate and complete list of all Material Real Estate Assets.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.), Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists The Company and each parcel of real property leased Company Subsidiary has good and valid title to, or subleased by the Company or any Subsidiary as of the date hereof good and valid leasehold interests in, all their respective properties and assets (the “Real PropertyCompany Properties”). The Company and its Subsidiaries do not own any Real Property ) except in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect: (i) each material lease . The Company Properties are, in all respects, adequate and sufficient, and in satisfactory condition, to support the operations of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 the Company and the like may still be owed for prior years if such amounts have not been billed by landlords or are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeaseSubsidiaries as presently conducted, except for any such violations which would not havein respects that, individually or in 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 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.
(b) The Company and each of the Company Subsidiaries has complied with the terms of all leases, subleases and licenses entitling it to the use of real property owned by third parties (“Company Leases”), and 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. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation each Company Subsidiary is in exclusive possession of the business of properties or assets purported to be leased under all 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 hereofLeases, except for the failure of the Company or its Subsidiaries such failures to have such rights as would not constitutepossession of material properties or assets as, individually or in the aggregate, a Material Adverse Effect. Except as do not materially impair and would not havereasonably be expected to materially impair, the continued use and operation of such material assets to which they relate in the conduct of the Company and Company 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 Company Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (SAVVIS, Inc.), Merger Agreement (Centurylink, Inc)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company Parent and its Subsidiaries do not own any Real Property have, free and clear of all 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 fee simplethe 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 Each 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 be expected likely to havehave 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, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 had and are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 reasonably likely to have such rights as would not constitute, individually or in the aggregate, a Parent Material Adverse Effect. Except as would not have, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect, all Easements in favor of Parent or any of its Subsidiaries are valid and enforceable and grant the rights purported to be granted thereby and all rights necessary thereunder for the operation of the respective businesses of Parent and its Subsidiaries. There are no condemnation proceeding spatial gaps in the Easements in favor of Parent or other litigation any of its Subsidiaries that would reasonably be likely to have a Parent Material Adverse Effect and all parts of the pipeline assets which constitute a portion of the assets of Parent or any of its Subsidiaries are located either on property which is pending or, owned in fee by Parent or one of its Subsidiaries or on property which is subject to the knowledge an Easement in favor of Seller, threatened which would preclude Parent or impair the use 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 such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used fee interests or proposed Easement, other than disputes or challenges that have not had or are not reasonably likely to be used as of the date hereofhave a Parent Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Chesapeake Utilities Corp), Merger Agreement (Florida Public Utilities Co)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: (i) each , the Company or one of its Subsidiaries has good title to all the properties and assets reflected in the unaudited balance sheet of the Company as at June 30, 2019 included in the Company SEC Documents as being owned by the Company or one of its Subsidiaries or acquired after the date thereof that are material lease of Real Property, together with all amendments and modifications thereto (each, to the Company’s business on a “Lease”) is in full force and effect in accordance with its terms; (ii) all material amounts due and payable as rent due under each such Lease have been paid in full consolidated basis (except that routine reconciliations properties sold or otherwise disposed of typical lease charges such as taxes, common area maintenance payments, insurance and since the like may still be owed for prior years if such amounts have not been billed by landlords or are date thereof in the routine process ordinary course of payment on business), free and clear of all Liens, except (a) statutory Liens securing payments not yet due or the date hereof amount or are validity of which is being disputed); contested in good faith by appropriate proceedings, (iiib) in each case 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 lessee or an affiliate has been in peaceable possession since the commencement use of the original term of such Lease and no material waiver, indulgence properties or postponement of assets subject thereto for the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, purposes for which they are currently being used. Except as would 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 havenot, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 reasonably be expected 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 the Company or other litigation one of its Subsidiaries is pending the lessee of all leasehold estates reflected in the unaudited balance sheet of the Company 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 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 each such lease is valid without default thereunder by the lessee or, to the knowledge of Sellerthe Company, threatened 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 would preclude they are being put, and none of such property is in need of maintenance or impair the use repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. Section 3.17 of any such Real Property by the Company and its Subsidiaries for Disclosure Letter sets forth the purposes for which it is currently used or proposed to be used production capacity of each Facility as of the date hereofof this Agreement. To the knowledge of the Company, (i) there are no existing, pending or threatened condemnation Actions or similar proceedings relating to any Facilities and (ii) there are no circumstances reasonably likely to cause a material production reduction or stoppage at any Facility and no such reduction or stoppage is planned. “Facilities” means collectively the Company’s manufacturing facilities in Buchanan, New York, Silver Grove, Kentucky and Palatka, Florida and each site complex individually is referred to as a “Facility”.
Appears in 2 contracts
Sources: Merger Agreement (Continental Building Products, Inc.), Merger Agreement (Continental Building Products, Inc.)
Properties. (a) Section 3.15 From and after the Funding Date, each of the Disclosure Schedule correctly lists each parcel of 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 its real and personal property leased or subleased by material to its business (including all Mortgaged Properties), except for defects in the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries foregoing that do not own any Real Property in fee simple.
(b) Except 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 failure to have such title or other ownership rights would not reasonably be expected to have, individually or in the aggregate, 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.
(ib) each material lease Each of Real Property, together the Borrower and the Restricted Subsidiaries has complied with all amendments and modifications thereto (each, obligations under all leases to which it is a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Leaseparty, except for any such violations which where the failure to comply would not have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect reasonably be expected 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 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 a 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) As of the Effective Date, neither the Borrower nor any of the Restricted Subsidiaries has received any written notice of, nor has any knowledge of, any pending or contemplated condemnation proceeding for any material portion of the Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.
(d) As of the Effective Date, neither the Borrower nor any of the Restricted Subsidiaries is obligated under any right of first refusal, option or other litigation contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein.
(e) Each of the Borrower and the Restricted Subsidiaries owns, or is pending orlicensed or otherwise has the right to 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 which would not reasonably be expected to result in a Material Adverse Effect, and the use thereof by the Borrower and the Restricted Subsidiaries does not, to the knowledge of Sellerany Responsible Officer of the Borrower, threatened which would preclude or impair infringe upon the use rights of any other Person, except for any such Real Property by infringements that, individually or in the Company aggregate, would not reasonably be expected to result in a Material Adverse Effect.
(f) Schedule 3.05(f) lists completely and its Subsidiaries for the purposes for which it is currently used or proposed to be used correctly as of the date hereofEffective Date all real property owned in fee by the Borrower or the Restricted Subsidiaries (and the addresses thereof) that are material to their business.
(g) Schedule 3.05(g) lists completely and correctly as of the Effective Date all real property leased by the Borrower or the Restricted Subsidiaries (and the addresses thereof) that are material to their business.
Appears in 2 contracts
Sources: Credit Agreement (Huntington Ingalls Industries, Inc.), Credit Agreement (Huntington Ingalls Industries, Inc.)
Properties. (a) Section 3.15 of With respect to the Disclosure Schedule correctly lists each parcel of real property leased or subleased owned by the Company or any Subsidiary its Subsidiaries and the Improvements (as of the date hereof defined below) thereon (the collectively, “Owned Real Property”). The , the Company or one of its Subsidiaries, as applicable, has good and marketable title to the Owned Real Property, free and clear of any Lien (other than Permitted Liens); (b) with respect to the real property leased, subleased or licensed to the Company or its Subsidiaries and the Improvements (as defined below) thereon (collectively, “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, and binding on the Company or its Subsidiaries, as applicable, and to the knowledge of the Company, each other party thereto, and in full force and effect, and none of the Company or any of its Subsidiaries is in breach of or default under such lease, sublease or license, and no event has occurred which, 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 do to conduct their respective businesses as currently conducted, except as has not own any Real Property in fee simple.
(b) Except as had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: Effect on the Company; (id) each material lease of all buildings, structures, fixtures and improvements included within the Owned Real Property, together with all amendments Property and modifications thereto Leased Real Property (each, a the “LeaseImprovements”) is in full force and effect in accordance with its terms; (ii) 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 are in good repair and operating condition, subject only to ordinary wear and tear, and are adequate and suitable for the routine process of payment on the date hereof purposes for which they are presently being used or are 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 held for use, and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary or, to the knowledge of Sellerthe Company, any other party thereto, has violated there are no facts or conditions affecting any of the terms Improvements that, in the aggregate, would substantially interfere with the current use, occupancy or conditions under operation thereof; and (e) the Company has not received written notice with respect to the Owned Real Property or the Leased Real Property from any Governmental Entity pertaining to any violation of any law, ordinance, rule or regulation, which would have or would reasonably be expected to have a Material Adverse Effect on the Company. Section 4.18 of the Company Disclosure Schedule contains a true and complete list of all Owned Real Property or Leased Real Property. The applicable Tenant with respect to any Leased Real Property enjoys peaceful and undisturbed possession of such LeaseLeased Real Property, except for any such violations which would not havefailure to do so that, individually or in the aggregate, would not have or reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Labarge Inc), Merger Agreement (Ducommun Inc /De/)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the The Company or any Subsidiary as one of its Subsidiaries has good and valid title to, or in the date hereof (case of leased property and leased tangible assets, a valid leasehold interest in, all of its real properties and tangible assets that are necessary for the “Real Property”). The Company and its Subsidiaries to conduct their respective businesses as currently conducted, free and clear of all Liens other than (i) 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, (ii) 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 own any Real Property not, individually or in fee simple.
(b) the aggregate, 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 and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real PropertyEffect on the Company, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are tangible personal property currently used in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business of the Company and its Subsidiaries is in the ordinary course good working order (reasonable wear and consistent in all material respects with past practice and with the business plans tear excepted).
(b) Each of the Company and its Subsidiaries as has complied with the terms of all leases to which it is a party, and all such leases are in effect on the date hereoffull force and effect, except for the any such noncompliance or failure of the Company or its Subsidiaries to have such rights as would not constitutebe in full force and effect that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Except as would not haveEach 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, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by .
(c) Neither the Company and nor any of its Subsidiaries owns or has ever owned any real property. Section 3.18(c) of the Company Disclosure Letter sets forth a true and complete list of all real property leased for the purposes for which it is currently used or proposed to be used as benefit of the date hereofCompany or any of 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) Section 3.15 Each of the Disclosure Schedule correctly lists Borrower and each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof 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 (the “Real Property”). The Company including any Mortgaged Properties) and has good and marketable title to its Subsidiaries personal property and assets, in each case, except for defects in title that do not own any Real Property in fee simple.
(b) Except materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes and except where the failure to have such title would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: . All such properties and assets are free and clear of Liens, other than Liens permitted by Section 6.02.
(ib) Each of the Borrower and each material lease of Real Property, together the Subsidiaries has complied with all amendments and modifications thereto (eachobligations under all leases to which it is a party, except where the failure to comply would not reasonably be expected to have, individually or in the aggregate, a “Lease”) is 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 in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation Each of the business Borrower and each of the Company Subsidiaries enjoys peaceful and its Subsidiaries undisturbed possession under all such leases, other than leases in the ordinary course and consistent in all material respects with past practice and with the business plans respect of the Company and its Subsidiaries as in effect on the date hereof, except for which the failure of the Company or its Subsidiaries to have such rights as enjoy peaceful and undisturbed possession would not constitute, individually or in the aggregate, a Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) Each of the Borrower and the Subsidiaries owns or possesses, no condemnation proceeding or other litigation is pending orlicensed to use, all patents, trademarks, service marks, trade names and copyrights and all licenses and rights with respect to the knowledge of Sellerforegoing, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries necessary for the purposes for which it is currently used 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 proposed hold pursuant to a license or such conflicts and restrictions would not reasonably be used as of expected to have, individually or in the date hereofaggregate, a Material Adverse Effect.
Appears in 2 contracts
Sources: Abl Credit Agreement (Petco Holdings Inc), Term Loan Credit Agreement (Petco Holdings Inc)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists Qwest and each parcel of real property leased Qwest Subsidiary has good and valid title to, or subleased by the Company or any Subsidiary as of the date hereof good and valid leasehold interests in, all their respective properties and assets (the “Real PropertyQwest Properties”). The Company and its Subsidiaries do not own any Real Property ) except in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Qwest Material Adverse Effect: (i) each material lease . The Qwest Properties are, in all respects, adequate and sufficient, and in satisfactory condition, to support the operations of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 Qwest and the like may still be owed for prior years if such amounts have not been billed by landlords or are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeaseQwest Subsidiaries as presently conducted, except for any such violations which would not havein respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Qwest Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation All of the business Qwest Properties are free and clear 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 hereofLiens, except for the failure of the Company or its Subsidiaries to have such rights as would not constituteLiens on material Qwest Properties that, individually or in the aggregate, a Material Adverse Effect. Except as do not materially impair and would not havereasonably 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, no condemnation proceeding or other litigation is pending orwhich 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 knowledge of Seller, threatened which would preclude or impair the use of any such Real Property 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 Company aggregate, has not had and its Subsidiaries for would not reasonably be expected to have a Qwest Material Adverse Effect. Qwest and each Qwest Subsidiary is in exclusive possession of the purposes for which it is currently used properties or proposed assets purported to be used 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 date hereofaggregate, have not had and would not reasonably be expected to have a Qwest Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Centurytel Inc), Merger Agreement (Qwest Communications International Inc)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists Pine and each parcel of real property leased Pine Subsidiary has good and valid title to, or subleased by the Company or any Subsidiary as of the date hereof good and valid leasehold interests in, all their respective properties and assets (the “Real PropertyPine Properties”). The Company and its Subsidiaries do not own any Real Property ) except in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Pine Material Adverse Effect: (i) each material lease . The Pine Properties are, in all respects, adequate and sufficient, and in satisfactory condition, to support the operations of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 Pine and the like may still be owed for prior years if such amounts have not been billed by landlords or are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeasePine Subsidiaries as presently conducted, except for any such violations which would not havein respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Pine Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation All of the business Pine Properties are free and clear 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 hereofLiens, except for the failure of the Company or its Subsidiaries to have such rights as would not constituteLiens on material Pine Properties that, individually or in the aggregate, a Material Adverse Effect. Except as do not materially impair and would not havereasonably 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, no condemnation proceeding or other litigation is pending orwhich 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 knowledge of Seller, threatened which would preclude or impair the use of any such Real Property 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 Company aggregate, has not had and its Subsidiaries for would not reasonably be expected to have a Pine Material Adverse Effect. Pine and each Pine Subsidiary is in exclusive possession of the purposes for which it is currently used properties or proposed assets purported to be used 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 date hereofaggregate, have not had and would not reasonably be expected to have a Pine Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Embarq CORP), Merger Agreement (Centurytel Inc)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists Cedar and each parcel of real property leased Cedar Subsidiary has good and valid title to, or subleased by the Company or any Subsidiary as of the date hereof good and valid leasehold interests in, all their respective properties and assets (the “Real PropertyCedar Properties”). The Company and its Subsidiaries do not own any Real Property ) except in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Cedar Material Adverse Effect: (i) each material lease . The Cedar Properties are, in all respects, adequate and sufficient, and in satisfactory condition, to support the operations of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 Cedar and the like may still be owed for prior years if such amounts have not been billed by landlords or are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeaseCedar Subsidiaries as presently conducted, except for any such violations which would not havein respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Cedar Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation All of the business Cedar Properties are free and clear 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 hereofLiens, except for the failure of the Company or its Subsidiaries to have such rights as would not constituteLiens on material Cedar Properties that, individually or in the aggregate, a Material Adverse Effect. Except as do not materially impair and would not havereasonably be expected to materially impair, the continued use and operation of such material Cedar Properties to which they relate in the conduct of Cedar and the Cedar Subsidiaries as presently conducted and Liens on other Cedar Properties that, individually or in the aggregate, have not had and would not reasonably be expected to have a Cedar Material Adverse Effect. This Section 3.15 does not relate to Intellectual Property Rights matters, no condemnation proceeding or other litigation is pending orwhich are the subject of Section 3.16.
(b) Cedar and each of the Cedar Subsidiaries has complied with the terms of all leases, subleases and licenses entitling it to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property real property owned by third parties (“Cedar Leases”), and all Cedar Leases are valid and in full force and effect, except as, individually or in the Company aggregate, has not had and its Subsidiaries for would not reasonably be expected to have a Cedar Material Adverse Effect. Cedar and each Cedar Subsidiary is in exclusive possession of the purposes for which it is currently used properties or proposed assets purported to be used leased under all the Cedar 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 properties and assets to which they relate in the conduct of Cedar and Cedar Subsidiaries as presently conducted and failures to have such possession of immaterial properties or assets as, individually or in the date hereofaggregate, have not had and would not reasonably be expected to have a Cedar Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Embarq CORP), Merger Agreement (Centurytel Inc)
Properties. (a) Section 3.15 4.16(a) (Part I) of the Company Disclosure Schedule correctly lists Letter sets forth a list of the address of each parcel of 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 any a Company Subsidiary as of after the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simpleof this Agreement.
(b) Except The Company or a Company Subsidiary owns good and marketable fee simple title or leasehold title (as applicable) to each of the Company Properties, in each case, free and clear of Liens, except for Company Permitted Liens that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The For the purposes of this Agreement, “Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect Permitted Liens” shall mean any (i) Liens relating to all Real Property for operation of the business of the Company and its Subsidiaries any Indebtedness incurred in the ordinary course and of business consistent in all material respects with past practice practice, (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 with for which there are adequate reserves on the business plans financial statements of the Company (if such reserves are required pursuant to GAAP), (iii) Liens imposed or promulgated by Law or any Governmental Authority, including zoning regulations, permits and its Subsidiaries as in effect licenses, (iv) Liens that are disclosed on the date hereof, except for the failure existing Company Title Insurance Policies made available by or on behalf of the Company or its Subsidiaries any Company Subsidiary to have such rights as would not constituteParent prior to the date hereof and, individually with respect to leasehold interests, Liens on the underlying fee or leasehold interest of the applicable ground lessor, lessor or sublessor, (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 aggregateordinary course of business consistent with past practice that are not yet subject to penalty or the validity of which is being contested in good faith by appropriate proceedings, a Material Adverse Effect. Except as would and (vi) any other Liens that do not have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or materially impair the value of the applicable Company Property or the continued use and operation of any such Real the applicable Company Property by the Company and its Subsidiaries for the purposes for which it is as currently used or proposed to be used as of the date hereofand operated.
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Trust III, Inc.), Merger Agreement (American Realty Capital Properties, Inc.)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the The Company or any Subsidiary as one of its Subsidiaries has good and valid title to, or in the date hereof (case of leased property and leased tangible assets, a valid leasehold interest in, all of its real properties and tangible assets that are necessary for the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) to conduct their respective businesses as currently conducted, free and clear of all Liens other than Permitted Liens of the Company and its Subsidiaries. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are tangible personal property currently used in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business of the Company and its Subsidiaries is in the ordinary course good working order (reasonable wear and consistent in all material respects with past practice and with the business plans tear excepted).
(b) Each of the Company and its Subsidiaries as has complied with the terms of all real property leases to which it is a party, and all such leases are in effect on the date hereoffull force and effect, except for the any such noncompliance or failure of the Company or its Subsidiaries to have such rights as would not constitutebe 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 would not haveNeither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any other party to the lease, is in breach or default under such lease, and no event has occurred or circumstance exists which would, with or without notice, lapse of time, or both, constitute a breach or default under such lease. 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 Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has assigned, no condemnation proceeding pledged, mortgaged, hypothecated, or otherwise transferred any lease or any interest therein nor has the Company or any of its Subsidiaries subleased, licensed, or otherwise granted any Person (other litigation is pending or, than another wholly owned Subsidiary of the Company) a right to use or occupy such leased real estate or any portion thereof.
(c) Section 4.19(c) of the knowledge Company Disclosure Letter sets forth a true and complete list of Seller, threatened which would preclude or impair the use of any such Real Property (i) all real property owned by the Company and or any of its Subsidiaries and (ii) all real property leased for the purposes for which it is currently used or proposed to be used as benefit of the date hereofCompany or 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) Section 3.15 As of the Disclosure date of this Agreementthe First Amendment Effective Date, Schedule correctly lists 3.05 sets forth the address of each parcel of real property that is owned by or leased to any Loan Party. Each of such leases and subleases is valid and enforceable in accordance with its terms and is in full force and effect, and no default by any party to any such lease or subleased sublease exists (after giving effect to any applicable notice requirement or grace period) 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 holding, injunction, decision or judgment has been rendered by any 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 Subsidiary as of the date hereof its Subsidiaries (the “Real Borrower Intellectual Property”)) in any respect that would reasonably be expected to have a Material Adverse Effect. The To the Loan Parties’ knowledge, no pending claim has been asserted or threatened in writing by any Person challenging the use by the Company and or any of its Subsidiaries do not own of any Real Borrower Intellectual Property or the validity of any Borrower Intellectual Property, except in fee simple.
(b) Except each case as would not reasonably be expected to have, individually or in the aggregate, result inhave a Material Adverse Effect: (i) each material lease . To the Loan Parties’ knowledge, the use of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with any Borrower Intellectual Property by the Company or its terms; (ii) 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 Subsidiaries does not been billed by landlords or are in the routine process of payment infringe on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement rights of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Person in a manner that would not have, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, free of all Liens other than those permitted by Section 6.02. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to taken all Real Property for operation of the business of the Company and its Subsidiaries commercially reasonable actions that in the ordinary course and consistent exercise of their reasonable business judgment should be taken to protect the Borrower Intellectual Property, including Borrower Intellectual Property that is confidential in all material respects with past practice and with the business plans of the Company and its Subsidiaries as in effect on the date hereofnature, except for where the failure of the Company or its Subsidiaries to do so would not reasonably be expected to have such rights as would not constitute, individually or in the aggregate, a Material Adverse Effect. Except .
(b) Each Loan Party and each Subsidiary owns, or is validly licensed to use, all Material Intellectual Property used in, or necessary to conduct, its business as would not havecurrently conducted, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending orand, to the knowledge of Sellereach Loan Party, threatened which would preclude or impair and 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, misappropriate or otherwise violate, and has not infringed, misappropriated or otherwise violated, the Intellectual Property rights of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofother Person.
Appears in 2 contracts
Sources: Credit Agreement (Bed Bath & Beyond Inc), Credit Agreement (Bed Bath & Beyond Inc)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) 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 the Parent Subsidiaries 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 real properties identified as owned by Parent in the Parent SEC Reports (collectively, the “Parent Properties”). In each case, such Parent Properties are owned or leased, as the case may be, free and clear of Encumbrances, except for (i) each material lease liens for taxes or other governmental charges, assessments or levies that are not yet due and payable or the validity of Real Propertywhich 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), together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) all material amounts statutory landlord’s, mechanic’s, carrier’s, workmen’s, repairmen’s or other similar liens arising or incurred in the ordinary course of business consistent with past practice that are not yet due and payable as rent due under each such Lease have been paid or the validity of which is being contested in full good faith by appropriate proceedings and for which there are adequate reserves on the financial statements of the Company (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 reserves are required by GAAP), or that are not been billed by landlords or are in the routine process of payment on the date hereof or are being disputed); otherwise material, (iii) Encumbrances disclosed in each case the lessee public records or an affiliate has been in peaceable possession since existing title policies, the commencement existence of which does not, and would not reasonably be expected to, materially impair the original term marketability, value or use and enjoyment of such Lease and no material waiverreal property, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledgeother Encumbrances that do not, there exists no material default and would not reasonably be expected to, materially impair or eventinterfere with the marketability, occurrence, condition value or act whichuse and enjoyment of any such real property (as such property is currently being used or, with the giving of notice or the lapse of time or bothrespect to any development properties, would become a default under such Lease allowing the landlord intended 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 be used).
(b) Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, lightneither Parent, telephone and water utilities 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 all Real Property for operation any of Parent Properties, that would interfere in any material manner with the current use of the business of the Company and Parent Properties (assuming its Subsidiaries continued use in the ordinary course 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 consistent remains in all material respects with past practice and with the business plans violation) for any Parent Property (other than violations of the Company and its Subsidiaries as 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 effect on the date hereofgood faith or which violations would individually, except for the failure of the Company or its Subsidiaries to have such rights as would not constitute, individually or in the aggregate, have, or reasonably be expected to have, a Parent Material Adverse Effect. .
(c) Except as would not have, or would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no condemnation proceeding and except for any statutory rights or other litigation is pending oroptions to occupy or purchase any Parent Property in favor of a Governmental Authority, or mineral or subsurface rights granted to or retained by another, 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 knowledge purchase of Sellera 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 the Parent’s Knowledge, threatened which 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) Except as would preclude not have, or impair would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) there are no boundary disputes relating to any Parent Properties and no encroachments materially and adversely affecting the use of any such Real Property by Parent Properties and (ii) with respect to each Parent Property, all material buildings, structures, fixtures and improvements are in all respects adequate and sufficient and in satisfactory condition to support the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as operations of the date hereofParent and each Parent Subsidiary as presently conducted to the extent related to such Parent Property.
Appears in 2 contracts
Sources: Merger Agreement (CatchMark Timber Trust, Inc.), Merger Agreement (Potlatchdeltic Corp)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: , the Company and its Subsidiaries have good title to, or valid leasehold interests in, all property (including the Real Property) and assets necessary to operate its business, free and clear of all Liens other than 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) As of the date hereof, Section 4.14(b) of the Company Disclosure Schedule sets forth a true and complete list of (i) each material lease all real property owned by the Company or any of its Subsidiaries (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, together with 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 thereto thereof, with respect to the Leased Real Property (each, a “Real Property Lease”).
(c) is in full force and effect in accordance with its terms; (ii) all material amounts due and payable Except 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The , (i) each Real Property Lease is valid and in full force and effect, (ii) neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company any other party to a Real Property 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 material default under the provisions of such Real Property Lease, and neither the Company nor any of its Subsidiaries has received notice that it has breached, violated or defaulted under any Real Property Lease, (iii) the Company and its Subsidiaries have adequate not (A) subleased, licensed or otherwise granted any Person the right to use or occupy any Leased Real Property, or (B) 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, rights of ingress first offer or rights of first refusal to purchase any Owned Real Property or any portion thereof or interest therein. Neither the Company nor any Subsidiary is a party to any agreement or option to purchase any real property or interest therein.
(d) Except as has not had and egress 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 adequate electricto the Knowledge of the Company, lightthere is no such governmental order threatened against all or any portion of the Real Property.
(e) Except for any Permitted Liens and as set forth in Section 4.14(e) of the Company Disclosure Schedule and except as has not had and would not reasonably be expected to have, telephone and water utilities with respect to all individually or in the aggregate, a Company Material Adverse Effect, (i) there are no contractual or legal restrictions that prevent the Company or any of its Subsidiaries from using any Real Property for its current use and (ii) all structures and other buildings on the Real Property are in good operating condition and sufficient for the operation of the business of the Company and its Subsidiaries as currently conducted and none of such structures or 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 ordinary course and consistent in all material respects with past practice and with real property used or intended to be used in, or otherwise related to, 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofconducted.
Appears in 2 contracts
Sources: Merger Agreement (Chase Corp), Merger Agreement (Chase Corp)
Properties. (a) Section 3.15 As of the Disclosure date of the First Amendment Effective Date, Schedule correctly lists 3.05 sets forth the address of each parcel of real property that is owned by or leased to any Loan Party. Each of such leases and subleases is valid and enforceable in accordance with its terms and is in full force and effect, and no default by any party to any such lease or subleased sublease exists (after giving effect to any applicable notice requirement or grace period) 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 holding, injunction, decision or judgment has been rendered by any 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 Subsidiary as of the date hereof its Subsidiaries (the “Real Borrower Intellectual Property”)) in any respect that would reasonably be expected to have a Material Adverse Effect. The To the Loan Parties’ knowledge, no pending claim has been asserted or threatened in writing by any Person challenging the use by the Company and or any of its Subsidiaries do not own of any Real Borrower Intellectual Property or the validity of any Borrower Intellectual Property, except in fee simple.
(b) Except each case as would not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect: (i) each material lease . To the Loan Parties’ knowledge, the use of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with any Borrower Intellectual Property by the Company or its terms; (ii) 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 Subsidiaries does not been billed by landlords or are in the routine process of payment infringe on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement rights of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Person in a manner that would not have, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to taken all Real Property for operation of the business of the Company and its Subsidiaries commercially reasonable actions that in the ordinary course and consistent exercise of their reasonable business judgment should be taken to protect the Borrower Intellectual Property, including Borrower Intellectual Property that is confidential in all material respects with past practice and with the business plans of the Company and its Subsidiaries as in effect on the date hereofnature, except for where the failure of the Company or its Subsidiaries to do so would not reasonably be expected to have such rights as would not constitute, individually or in the aggregate, a Material Adverse Effect. Except .
(b) Each Loan Party and each Subsidiary owns, or is validly licensed to use, all Material Intellectual Property used in, or necessary to conduct, its business as would not have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending orcurrently conducted, to the knowledge of Sellereach Loan Party, threatened which would preclude and the conduct of each Loan Party and each Subsidiary of its business does not infringe, misappropriate or impair otherwise violate, and has not infringed, misappropriated or otherwise violated, the use Intellectual Property rights of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofother Person.
Appears in 2 contracts
Sources: Credit Agreement (Bed Bath & Beyond Inc), Credit Agreement (Bed Bath & Beyond Inc)
Properties. (a) Section 3.15 Except as disclosed in title insurance policies and reports (and the documents or surveys referenced in such policies and reports): (i) SST IV or a SST IV Subsidiary owns fee simple title to each of the Disclosure Schedule correctly lists each parcel SST IV Properties, free and clear of real property leased or subleased by the Company or any Subsidiary Liens, except for Permitted Liens; (ii) except as of the date hereof (the “Real Property”). The Company has not had and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a SST IV Material Adverse Effect: , neither SST IV nor any SST IV Subsidiary has received written notice of any uncured violation of any Law (iincluding zoning, building or similar Laws) each material lease affecting any portion of Real Property, together with all amendments any of the SST IV Properties issued by any Governmental Authority; and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are being disputed); (iii) except as would not, individually or 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 material waiveraggregate, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledgehave a SST IV Material Adverse Effect, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company neither SST IV nor any SST IV Subsidiary has received written notice to the effect that there are condemnation or rezoning proceedings that are currently pending or, to the knowledge Knowledge of SellerSST IV, any other party thereto, has violated threatened with respect to any of the terms SST IV Properties.
(b) Except as disclosed in property condition assessments and similar structural engineering reports relating to the SST IV Properties, SST IV has not received written notice of, nor does SST IV have any Knowledge of, any latent defects or adverse physical conditions under affecting any such Leaseof the SST IV Properties or the improvements thereon that have not been corrected or cured prior to the date of this Agreement, except for any such violations which as has not had and would not reasonably be expected to have, individually or in the aggregate, a SST IV Material Adverse Effect. The Company .
(c) SST IV and its the SST IV Subsidiaries have adequate rights of ingress good title to, or a valid and egress and adequate electricenforceable leasehold interest in, light, telephone and 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 personal property assets owned, used or held for use by them. Neither SST IV’s, nor the business plans of the Company and its Subsidiaries as in effect on the date hereofSST IV Subsidiaries’, 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use ownership of any such Real Property by the Company and its Subsidiaries for the purposes for which it personal property is currently used or proposed subject to be used as of the date hereofany Liens, other than Permitted Liens.
Appears in 2 contracts
Sources: Merger Agreement (SmartStop Self Storage REIT, Inc.), Merger Agreement (Strategic Storage Trust IV, Inc.)
Properties. (a) Section 3.15 The Company has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its real properties and tangible assets that are necessary for the Company to conduct its business as currently conducted, free and clear of all Liens other than (i) Liens for Taxes and assessments not yet delinquent or the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business of the Disclosure Schedule correctly lists each parcel Company consistent with past practice and (iii) any such matters of real property leased record, Liens and other imperfections of title that do not, individually or subleased by in the aggregate, materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company or any Subsidiary as of the date hereof currently conducted (the “Real PropertyPermitted Liens”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) 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 (ireasonable wear and tear excepted).
(b) each material lease The Company is in compliance with the terms of Real Propertyall leases to which it is a party, together with and all amendments such leases are in full force and modifications thereto (eacheffect, a “Lease”) is except for any such noncompliance or failure to be in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 havethat, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company enjoys peaceful and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to undisturbed possession under 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 hereofsuch leases, except for the any such failure of the Company or its Subsidiaries to have such rights as would not constitutedo so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Except as would not have, individually or in .
(c) Section 4.18(c) of the aggregate, Company Disclosure Letter sets forth a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge true and complete list of Seller, threatened which would preclude or impair the use of any such Real Property (i) all real property owned by the Company and its Subsidiaries (ii) all real property leased for the purposes for which it is currently used or proposed to be used as benefit of the date hereofCompany.
(d) This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 2 contracts
Sources: Merger Agreement (20/20 Biolabs, Inc.), Merger Agreement (Longevity Health Holdings, Inc.)
Properties. (ai) Section 3.15 Each of the Disclosure Schedule correctly lists each parcel Company and its Subsidiaries has good and marketable title to, or in the 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 leased or subleased to which the Company of any of its Subsidiaries are a party (the “Company Real Property Leases”) and the parcels of real estate owned by the Company or any Subsidiary and its Subsidiaries as of the date hereof (the “Company Owned Properties”, together with the parcels of real estate covered by the Company Real PropertyProperty Leases, the “Company Real Properties”). The , free and clear of all Liens, except for Permitted Liens.
(ii) 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 do not own any Real Property in fee simpleoperate their businesses taken as a whole.
(biv) Except as would not reasonably be expected to havenot, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect: , (iX) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business of the Company and its Subsidiaries is in the ordinary course and consistent compliance in all material respects with past practice and with the business plans terms of all of the Company Real Property Leases to which it is a party and its Subsidiaries as under which it is in effect on the date hereofoccupancy, except for the failure and (Y) each such lease is a legal, valid and binding agreement of the Company or its Subsidiaries to have such rights Subsidiary, as would not constitutethe case may be, 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 other litigation is pending orand, to the knowledge of Sellerthe Company, threatened which would preclude or impair the use of any such Real Property by each other party thereto, enforceable against the Company and its Subsidiaries for or such Subsidiary, as the purposes for which it is currently used or proposed case may be, and, to be used as the knowledge of the date hereofCompany, against the other party or parties thereto, in each case, in accordance with its terms.
Appears in 2 contracts
Sources: Merger Agreement (Caterpillar Inc), Merger Agreement (Bucyrus International Inc)
Properties. (a) Section 3.15 Schedule 5.10(a) of the AGH Disclosure Schedule correctly lists each parcel Letter sets forth a complete and accurate list and the address of all real property owned or leased or subleased by the Company AGH or any Subsidiary as of its Subsidiaries (collectively, and together with the land at each address referenced in Schedule 5.10(a) of the date hereof AGH Disclosure Letter and all buildings, structures and other improvements and fixtures located on or under such land and all easements, rights and other appurtenances to such land, the "AGH PROPERTIES"). AGH or the AGH Subsidiaries, owns or own, as the case may be, good and insurable fee simple title (or, if so indicated in Schedule 5.10(a) of the AGH Disclosure Letter, leasehold title) to each of the AGH Properties, in each case free and clear of Encumbrances, except for such mortgages set forth on Schedule 5.15(b) of the AGH Disclosure Letter and such Encumbrances as individually, and in the aggregate, could not reasonably be expected to have a AGH Material Adverse Effect. Except for such of the following as individually or in aggregate could not reasonably be expected to have a AGH Material Adverse Effect, policies of title insurance (or marked title insurance commitments having the same force and effect as title insurance policies) have been issued by national title insurance companies insuring the fee simple or leasehold, as applicable, title of AGH or its Subsidiaries, as applicable, to each of the AGH Properties in amounts at least equal to the portion of the purchase price thereof allocated to real estate (the “Real Property”"AGH TITLE POLICIES"). The Company , and, to AGH's knowledge, the AGH Title Policies are valid and its Subsidiaries do not own in full force and effect and no claim has been made under any Real Property in fee simplesuch policy.
(b) Except as set forth in Schedule 5.10(b) of the AGH Disclosure Letter, and except for matters which would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a AGH Material Adverse Effect or to materially and adversely affect the use or occupancy (or, if applicable, any proposed developments) of the AGH Properties, which would reasonably be expected to have a AGH Material Adverse Effect: , AGH has no knowledge that any currently required certificate, permit or license (iincluding building permits and certificates of occupancy) each from any Governmental Entity having jurisdiction over any AGH Property or any agreement, easement or other right which is necessary to permit the lawful use, occupancy or operation of the existing buildings, structures or other improvements which constitute a part of any of the AGH Properties has not been obtained or is not in full force and effect, or of any pending modification or cancellation of any of the same.
(c) Schedule 5.10(c) of the AGH Disclosure Letter sets forth a complete and accurate list of all definitive agreements made or entered into by AGH or any of its Subsidiaries as of the date hereof, (x) to sell, mortgage, pledge or hypothecate any AGH Property, which, individually or in the aggregate, are material, or to otherwise enter into a material transaction in respect of the ownership or financing of any AGH Property, and (y) to purchase real property to which AGH or any Subsidiary is a party.
(d) Except as set forth in Schedule 5.10(d) of the AGH Disclosure Letter, none of the AGH Properties is subject to any outstanding purchase options, rights of first refusal, rights of first offer or similar rights other than such rights, which would not reasonably be expected to have a AGH Material Adverse Effect nor has AGH or any of its Subsidiaries entered into any outstanding contracts with others for the sale, mortgage, pledge, hypothecation, assignment, sublease or lease of Real any material portion of the AGH Property or other transfer of all or any part of any AGH Property, together and no person has any right or option to acquire, or right of first refusal or right of first refusal with all amendments respect to, AGH's or any of its Subsidiaries' interest in any AGH Property or any part thereof.
(e) Schedule 5.10(e) of the AGH Disclosure Letter sets forth AGH's or any Subsidiaries' capital expenditure budget and modifications thereto schedule for each CapStar Property, which describes the capital expenditures which the AGH or any Subsidiary has budgeted for such AGH Property for the period running through December 31, 1998 (eachthe "AGH BUDGET AND SCHEDULE").
(f) The ground leases underlying the leased AGH Properties referenced in Schedule 5.10(a) of the AGH Disclosure Letter (collectively, a “Lease”the "AGH GROUND LEASES") are accurately described in Schedule 5.10(f) of the AGH Disclosure Letter. Each of the AGH Ground Leases is valid, binding and in full force and effect in accordance with as against AGH or its terms; (ii) all material amounts due Subsidiaries and, to AGH's knowledge, as against the other party thereto, except to the extent the failure to be binding and payable as rent due under each such Lease have been paid in full (force and effect would not reasonably be expected to have a AGH Material Adverse Effect. There does not exist under any of the AGH Ground Leases any default, and, to AGH's knowledge, no event has occurred which, with notice or lapse of time or both, would constitute such a default, except that routine reconciliations of typical lease charges such as taxeswould not, common area maintenance payments, insurance and the like may still be owed for prior years if such amounts have not been billed by landlords individually or are in the routine process of payment on aggregate, be reasonably expected to result in a AGH Material Adverse Effect.
(g) Schedule 5.10(g) to the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement AGH Disclosure Letter sets forth a list of the original term of such Lease and no material waiver, indulgence or postponement hotel franchise agreements (the "AGH FRANCHISE AGREEMENTS") pursuant to which each of the lessee’s obligations thereunder has been granted by AGH Properties is being operated. Each of the lessor; and (iv) AGH Franchise Agreements is in full force effect and, to Seller’s knowledgethe Knowledge of AGH, there exists are no material default or eventdefaults thereunder by either party thereto, occurrence, condition or act which, nor have any events occurred which with the giving of notice or the lapse of passage time or both, both would become constitute a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary or, to the knowledge or event of Seller, any other party thereto, has violated any of the terms or conditions under any such Leasedefault thereunder, except for any such violations those which would not have, individually either singly or in the aggregate, aggregate would not constitute a AGH Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (American General Hospitality Corp), Merger Agreement (Capstar Hotel Co)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(bi) Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect: (i) , Parent or a Subsidiary of Parent owns fee simple title to or has a valid leasehold interest in, each material lease of Real Property, together with all amendments and modifications thereto the real properties reflected as an asset on the most recent balance sheet of Parent included in the Parent SEC Documents (each, a “LeaseParent Property” and collectively, the “Parent Properties”), in each case free and clear of all Liens except for (A) is debt and other matters set forth in full force Section 3.2(m)(i) of the Parent Disclosure Letter or the Parent SEC Documents, (B) inchoate mechanics’, workmen’s, repairmen’s and effect other inchoate Liens imposed for construction work in accordance with its terms; progress or otherwise incurred in the ordinary course of business, (iiC) mechanics’, workmen’s and repairmen’s Liens (other than 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 amounts adverse effect on the use and operation of such Parent Property, (E) real estate Taxes and special assessments not yet due and payable as rent due under each such Lease have been paid or which are being contested 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 are good faith in the routine process ordinary course of payment business and (F) Liens and other encumbrances that would not cause a material adverse effect on the date hereof value or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement use of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Leaseaffected property. 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 Except as would not have, or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. The Company and its Subsidiaries have adequate rights , none of ingress and egress and adequate electricParent nor any Subsidiary of Parent has received written notice to the effect that there are any condemnation proceedings that are pending or, lightto the knowledge of Parent, telephone and water utilities threatened, with respect to all Real Property for operation any material portion of any of the business Parent Properties. Except for the owners of the Company properties in which Parent or any Subsidiary of Parent has a leasehold interest and its except for any Parent Property that is held by a fund, no Person other than Parent or a Subsidiary of Parent has any ownership interest in any of the Parent Properties (other than immaterial easements, licenses or similar rights).
(ii) Parent and the Subsidiaries of 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 Parent included in the 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 consistent in clear of all material respects with past practice Liens, 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 constitutehave, individually or in the aggregate, a Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Spirit Realty Capital, Inc.), Merger Agreement (Realty Income Corp)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property have, free and clear of all 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 encumbrances (collectively, “Liens”) except for Permitted Liens, title to or valid leasehold interests in fee simplethe 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 Each of the Company 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 the Company or any of its Subsidiaries is a party or under which it is in occupancy are in full force and effect. Each of the Company 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 be expected likely to havehave a Company Material Adverse Effect.
(c) Neither the Company nor any of its Subsidiaries has violated the terms of any easement, right-of-way, prescriptive right or way of necessity, whether or not of record (an “Easement”), except any such violations that, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 had and are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 reasonably likely to have such rights as would not constitute, individually or in the aggregate, a Company Material Adverse Effect. Except as would not have, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect, no condemnation proceeding all Easements in favor of the Company or other litigation is pending or, any of its Subsidiaries are valid and enforceable and grant the rights purported to be granted thereby and all rights necessary thereunder for the knowledge operation of Seller, threatened which would preclude or impair the use respective businesses of any such Real Property by the Company and its Subsidiaries for Subsidiaries. There are no spatial gaps in the purposes for which it is currently used or proposed to be used as Easements in favor of the date hereofCompany 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 of its Subsidiaries has received any notice from any person disputing or challenging its ownership of any fee interests or Easement, other than disputes or challenges that have not had or are not reasonably likely to have a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Chesapeake Utilities Corp), Merger Agreement (Florida Public Utilities Co)
Properties. (a) Section 3.15 3.18(a) of the Company Disclosure Schedule correctly lists each parcel Letter sets forth a true and complete list of all material real property leased or subleased owned by the Company or any Subsidiary as of its Subsidiaries (“Current Company Owned Real Property”) and all material property leased for the benefit of the date hereof Company or any of its Subsidiaries (the “Current Company Leased Real Property”). The Company Except as, individually or in the aggregate, has not had, and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: Effect on the Company, each of the Company and its Subsidiaries has (i) each material lease of 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, together with in each case, free and clear of all amendments Liens except for (A) Liens for current taxes and modifications thereto (each, a “Lease”) assessments not yet past due or the amount or validity of which is being contested in full force good faith by appropriate proceedings and effect in accordance with its terms; (ii) all material amounts due and payable as rent due under each such Lease for which adequate reserves have been paid in full established therefor, (except that routine reconciliations of typical lease charges such as taxesB) mechanics’, common area maintenance paymentsworkmen’s, insurance and the like may still be owed for prior years if such amounts have not been billed by landlords repairmen’s, warehousemen’s, landlords’, carriers’ or are similar Liens arising in the routine process ordinary course of payment business of the Company or such Subsidiary consistent with past practice, and (C) any matter that would be disclosed on the date hereof a current title report or are being disputed); (iii) survey and such other matters of record, Liens and other imperfections of title, 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act whichcase, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord respect to terminate such Lease. Neither the Current 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 haveOwned Real Property and Current Company Leased Real Property that do not, individually or in the aggregate, a Material Adverse Effect. The Company materially impair the continued ownership, use and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for 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 ordinary course and consistent in all material respects 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 past practice and with or without payment of compensation therefor, nor, to the business plans 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 as in effect on has complied with the date hereof, except for the failure terms of all leases of the Current Company or its Subsidiaries to have such rights as would not constituteLeased Real Property except as, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse EffectEffect on the Company. Except as 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 not haveconstitute 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 EffectEffect 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 condemnation proceeding contractual or other litigation is pending or, to the knowledge of Seller, threatened which would legal restrictions that preclude or impair restrict the ability to use of any such Current Company Owned Real Property or Current Company Leased Real Property by the Company and or any of its Subsidiaries for the purposes for 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, or in the case of leased tangible assets, a valid leasehold interest in, all of its material tangible assets, free and clear of all Liens other than Permitted Liens. This Section 3.18 does not relate to intellectual property, which it is currently used or proposed to be used as the subject of the date hereofSection 3.19.
Appears in 2 contracts
Sources: Merger Agreement (Aecom Technology Corp), Agreement and Plan of Merger (Urs Corp /New/)
Properties. (a) Section 3.15 The Company or one of its Subsidiaries has (i) a valid leasehold or sublease interest or other comparable contract right in the Disclosure Schedule correctly lists each parcel of real property leased or subleased by that the Company or any Subsidiary as of its Subsidiaries 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 a valid leasehold, sublease interest or other comparable contract right in, the other material tangible assets and properties necessary to the conduct of the date hereof (businesses of the “Real Property”). The Company and its Subsidiaries do as currently conducted, in each case, free and clear of all liens, encumbrances, claims, security interests, mortgages, charges, defects or imperfections of title and other similar encumbrances except for Permitted Encumbrances or those that have not own any Real Property in fee simple.
(b) Except as had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: .
(ib) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) all material amounts due and payable Except 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 havenot, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The , (i) the Company and its Subsidiaries have adequate rights complied in all respects with the terms of ingress all Company Leases and egress all Company Leases are in full force and adequate electriceffect, light(ii) neither the Company nor any of its Subsidiaries has received or delivered any written notice that the Company or any of its Subsidiaries or any other party thereto is in breach or default under any Company Lease, telephone and water utilities with respect to all Real Property for operation (iii) the right of the business of the 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 pledged, mortgaged or otherwise granted a lien on its leasehold interest in the ordinary course any Company Leased Real Property and consistent in all material respects with past practice and with the business plans of (iv) the Company and any of its Subsidiaries as have not exercised or given any notice of exercise of, nor has any lessor or landlord exercised or given any notice of exercise by such party of, any option, right of first offer or right of first refusal contained in effect on the date hereof, except for the failure of any such Company Lease.
(c) Neither the Company or nor any of 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of owns any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofreal property.
Appears in 2 contracts
Sources: Transaction Agreement (Global Blue Group Holding AG), Transaction Agreement (Shift4 Payments, Inc.)
Properties. (a) Section 3.15 Parent or one of its Subsidiaries has good and valid title to, or in the Disclosure Schedule correctly lists each parcel case of leased property and leased tangible assets, a valid leasehold interest in, all of its real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company properties and tangible assets that are necessary for Parent and its Subsidiaries do not own any Real Property in fee simple.
(b) to conduct their respective businesses as currently conducted, free and clear of all Liens other than Permitted Liens of Parent and its Subsidiaries. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, 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 (ireasonable wear and tear excepted).
(b) each material lease Each of Real PropertyParent and its Subsidiaries has complied with the terms of all leases to which it is a party, together with and all amendments such leases are in full force and modifications thereto (eacheffect, a “Lease”) is except for any such noncompliance or failure to be in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 havethat, individually or in the aggregate, a has not had and would not reasonably be expected to have an Parent Material Adverse Effect. The Company Neither Parent nor any of its Subsidiaries nor, to the knowledge of Parent, any other party to the lease, is in breach or default under such lease, and no event has occurred or circumstance exists which would, with or without notice, lapse of time, or both, constitute a breach or default under such lease. Each of Parent and its Subsidiaries have adequate rights of ingress enjoys peaceful and egress and adequate electric, light, telephone and water utilities with respect to undisturbed possession under 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 hereofsuch leases, except for the any such failure of the Company or its Subsidiaries to have such rights as would not constitutedo so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. Except as would not have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge Neither Parent nor any of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for has assigned, pledged, mortgaged, hypothecated, or otherwise transferred any lease or any interest therein nor has Parent or any of its Subsidiaries subleased, licensed, or otherwise granted any Person (other than another wholly owned Subsidiary of Parent) a right to use or occupy such leased real estate or any portion thereof. This Section 5.19 does not relate to Intellectual Property matters, which matters are the purposes for which it is currently used or proposed to be used as subject of the date hereofSection 5.20.
Appears in 2 contracts
Sources: Merger Agreement (Neos Therapeutics, Inc.), Merger Agreement (Aytu Bioscience, Inc)
Properties. (a) Section 3.15 5.10(a) of the REIT II Disclosure Schedule correctly Letter lists each parcel hotel and other parcels of real property leased constituting REIT II Properties, and sets forth REIT II or subleased by the Company applicable REIT II Subsidiary owning such REIT II Properties. Except as disclosed in title insurance policies and reports (and the documents or any surveys referenced in such policies and reports): (A) REIT II or a REIT II Subsidiary as owns fee simple title to each of the date hereof REIT II Properties, free and clear of Liens, except for Permitted Liens; (B) except as has not had and would not, individually or in the “Real Property”). The Company 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 its Subsidiaries do not own (C) except as would not, individually or in the aggregate, have a REIT II Material Adverse Effect, neither REIT II nor any Real Property in fee simpleREIT II Subsidiary has received written notice to the effect that there are condemnation or rezoning proceedings that are currently pending or threatened with respect to any of the REIT II Properties.
(b) Except as disclosed in property condition assessments and similar structural engineering reports relating to the REIT II Properties, REIT II has not received written notice of, nor does REIT II have any Knowledge of, any latent defects or adverse physical conditions affecting any of the REIT II Properties or the improvements thereon that have not been corrected or cured prior to the date of this Agreement, except as would not reasonably be expected to havenot, individually or in the aggregate, have a REIT II Material Adverse Effect: .
(ic) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 REIT II and the like may still be owed REIT II Subsidiaries have good title to, or a valid and enforceable leasehold interest in, all personal property assets owned, used or held for prior years if such amounts have not been billed use by landlords or are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Leasethem. Neither REIT II’s nor 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use REIT II Subsidiaries’ ownership of any such Real Property by the Company and its Subsidiaries for the purposes for which it personal property is currently used or proposed subject to be used as of the date hereofany Liens, other than Permitted Liens.
Appears in 2 contracts
Sources: Merger Agreement (Moody National REIT I, Inc.), Agreement and Plan of Merger (Moody National REIT II, Inc.)
Properties. (a) Subject to the Liens expressly permitted by Section 3.15 of 6.02, the Disclosure Schedule correctly lists Borrower and each parcel of real property leased or subleased by Restricted Subsidiary is the Company or any Subsidiary as of sole owner of, and has good record title to, the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property described in fee simple.
(bSchedule 3.05(e) Except as and is the sole owner of and has good and valid title to, all other real and personal property material to its business, including the real and personal property described in Schedule 3.05(e), in each case except where the failure to have such title or interest does not or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: . The Borrower and each 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 other coal processing facilities, loadouts and other transportation facilities and other tangible personal property now owned or leased by the Borrower and the Restricted Subsidiaries that is necessary to conduct their business as it is now conducted, except where the failure to do so in the aggregate does not or would not reasonably be expected to have a 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.
(ib) The Borrower and each material lease of Real Property, together Restricted Subsidiary has complied with all amendments 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 modifications thereto (eachall such leases are in full force and effect, a “Lease”) is except leases in respect of which the failure to be in full force and effect in accordance with its terms; (ii) all material amounts due and payable as rent due under each such Lease does not or would not reasonably be expected to 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such LeaseMaterial Adverse Effect. Neither the Company nor any Subsidiary or, Subject to the knowledge 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 Seller, any other party thereto, has violated any of which the terms or conditions under any such Lease, except for any such violations which failure to enjoy peaceful and undisturbed possession would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company .
(c) Except as set forth on Schedule 3.05(c), and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 claims that do not and would not constitute, individually or in the aggregate, a Material Adverse Effect. Except as would not have, individually or in the aggregate, reasonably be expected to cause a Material Adverse Effect, no condemnation proceeding or other litigation is pending neither the Borrower nor any of the Restricted Subsidiaries has received written or, to the knowledge of Sellerthe Borrower and the Restricted Subsidiaries, threatened other notice of material claims, which would preclude are still outstanding or impair unresolved, that the Borrower or any Restricted Subsidiary has mined any coal that it did not have the right to mine or mined any coal in such a manner as to give rise to any material claims for loss, waste or trespass, and, to the knowledge of the Borrower and each Restricted Subsidiary, no facts exist upon which such a claim could be based.
(d) The Borrower and each of its Restricted Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property necessary for use in its business, the use thereof by the Borrower and its Restricted Subsidiaries does not infringe upon the rights of any such Real Property by other Person, except for infringements that, in the Company aggregate, do not and its Subsidiaries for the purposes for which it is currently used or proposed would not reasonably be expected to be used as of the date hereofresult in a Material Adverse Effect.
Appears in 2 contracts
Sources: Credit Agreement (Cloud Peak Energy Resources LLC), Credit Agreement (Cloud Peak Energy Resources LLC)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) 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 the Parent Subsidiaries owns fee simple title to or has a leasehold interest in each of the real properties identified as owned or leased by Parent in the 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 the case may be, free and clear of Encumbrances, except for (i) each material lease liens for taxes or other governmental charges, assessments or levies that are not yet due and payable or the validity of Real Propertywhich 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), together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) all material amounts statutory landlord’s, mechanic’s, carrier’s, workmen’s, repairmen’s or other similar liens arising or incurred in the ordinary course of business consistent with past practice that are not yet due and payable as rent due under each such Lease have been paid or the validity of which is being contested in full good faith by appropriate proceedings and for which there are adequate reserves on the financial statements of the Company (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 reserves are required by GAAP), or that are not been billed by landlords or are in the routine process of payment on the date hereof or are being disputed); otherwise material, (iii) Encumbrances disclosed in each case the lessee public records or an affiliate has been in peaceable possession since existing title policies, the commencement existence of which does not, and would not reasonably be expected to, materially impair the original term marketability, value or use and enjoyment of such Lease and no material waiverreal property, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledgeother Encumbrances that do not, there exists no material default and would not reasonably be expected to, materially impair or eventinterfere with the marketability, occurrence, condition value or act whichuse and enjoyment of any such real property (as such property is currently being used or, with the giving of notice or the lapse of time or bothrespect to any development properties, would become a default under such Lease allowing the landlord intended 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 be used).
(b) Except as would not have, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities 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 all Real Property for operation any of Parent Properties, that would interfere in any material manner with the current use of the business of the Company and Parent Properties (assuming its Subsidiaries continued use in the ordinary course 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 consistent remains in all material respects with past practice and with the business plans violation) for any Parent Property (other than violations of the Company and its Subsidiaries as 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 effect on the date hereofgood faith or which violations would individually, except for the failure of the Company or its Subsidiaries to have such rights as would not constitute, 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, no condemnation proceeding and except for any statutory rights or other litigation is pending oroptions 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 knowledge purchase of Seller, threatened which would preclude a Parent Property or impair the use any portion thereof or any other unexpired rights in favor of any such Real Persons to purchase or otherwise acquire a Parent Property by 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 Company Parent Properties has sufficient access to and from publicly dedicated streets for its Subsidiaries for current use and operation, without any constraints that interfere with the purposes for which it is currently used or proposed normal use, occupancy and operation thereof.
(e) With respect to be used any real property which, as of the date hereofof 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 Parent Material Adverse Effect. Parent or the Parent Subsidiaries have obtained any and all material approvals, consents and authorizations to initiate and complete the contemplated development, redevelopment or constructions of the Parent Development Properties as currently contemplated.
Appears in 2 contracts
Sources: Merger Agreement (Prologis, L.P.), Merger Agreement (DUKE REALTY LTD PARTNERSHIP/)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) 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, or in the case of leased tangible assets, a valid leasehold interest in, all of its tangible assets, free and clear of all Liens, other than (i) each material lease Liens for current taxes and assessments not yet past due or the amount or validity of Real Propertywhich is being contested in good faith by appropriate proceedings, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) all material amounts due mechanics’, workmen’s, repairmen’s, warehousemen’s 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 are carriers’ Liens arising in the routine process ordinary course of payment on business of the date hereof Company or are being disputed); 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 each case the lessee or an affiliate has been in peaceable possession since aggregate, materially impair the commencement continued ownership, use and operation of the original term of such Lease and no material waiver, indulgence or postponement assets to which they relate in the business of the lessee’s obligations thereunder has been granted Company and its Subsidiaries as currently conducted (“Permitted Liens”).
(b) Section 3.17(b) of the Company Disclosure Letter sets forth a true and complete list of all real property owned by the lessor; Company or any of its Subsidiaries (the “Owned Real Property”) and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with all property leased for the giving benefit of notice or the lapse of time or both, would 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 or any of its Subsidiaries (the terms or conditions under any “Leased Real Property”), identifying each such Lease, except for any such violations which property that is used by the Company as a distribution center. Except as has not had and would not reasonably be expect to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business each of the Company and its Subsidiaries has (i) good and marketable title in the ordinary course fee simple to all Owned Real Property and consistent (ii) good and marketable leasehold title to all Leased Real Property, in each case, free and clear of all material respects with past practice and with the business plans of the Company and its Subsidiaries as in effect on the date hereof, Liens 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 EffectPermitted Liens. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding parcel of Owned Real Property or other litigation Leased Real Property is pending orsubject 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 Sellerthe Company, threatened which 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 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 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 impair restrict the ability to use of any such Owned Real Property or Leased Real Property by the Company and or any of its Subsidiaries for the purposes current or contemplated use of such real property. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, 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 which it is currently used or proposed to be used as the requirements of the date hereofbusiness of the Company and its Subsidiaries as currently conducted.
(d) This Section 3.17 does not relate to intellectual property, which is the subject of Section 3.18.
Appears in 2 contracts
Sources: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
Properties. (a) Section 3.15 Each of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries has good title to or a valid leasehold interest in all of its properties and assets except for (1) statutory liens not yet delinquent which are being contested in good faith by appropriate proceedings, and liens for taxes not yet due, (2) pledges of assets in the ordinary course of business to secure public deposits, (3) defects and irregularities of title and encumbrances that do not own any Real Property 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 similar liens arising in fee simple.
the ordinary course of business and (b5) Except as properties and assets the loss of which would not reasonably be expected to havenot, individually or in the aggregate, have a Material Adverse Effect: Effect with respect to the Company.
(ib) each material lease Section 3.20 of Real Property, together with all amendments the Company Disclosure Schedule contains a complete and modifications thereto correct list of (each, a “Lease”) is in full force and effect in accordance with its terms; (iiA) 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 real property or are in the routine process of payment premises owned on the date hereof hereof, in whole or are being disputed); 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 (iiiwhether by judicial process or by power of sale) or otherwise in each case the lessee process of acquiring title to, and all indebtedness secured by any encumbrance thereon, and (B) all real property or an affiliate has been premises leased or subleased in peaceable possession since whole or in part by the commencement Company or any of its Subsidiaries and together with a list of all applicable leases and the name of the original term lessor. None of such Lease and no material waiver, indulgence premises or postponement of the lessee’s obligations thereunder has properties have been granted condemned or otherwise taken by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary orpublic authority and, to the knowledge of Sellerthe Company, no condemnation or taking is threatened or contemplated and none thereof is subject to any other party theretoclaim, has violated 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 terms current use of such property by the Company or conditions under any such LeaseSubsidiaries, except for any such violations which as would not havenot, individually or in the aggregate, have a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities Effect with respect to all Real Property for operation the Company.
(c) Each of the business of leases referred to in the Company Disclosure Schedule is in full force and its Subsidiaries effect, and no party thereto is in the ordinary course default and consistent in all material respects with past practice and with the business plans no notice of the Company and its Subsidiaries as in effect on the date hereof, except for the failure a claim of default by any party has been delivered to the Company or its Subsidiaries 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 have such rights as would not constitute, individually or in matters relating to any party other than the aggregate, a Material Adverse Effect. Except as would not have, individually or in Company the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation foregoing representation is pending or, to based on the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofCompany.
Appears in 2 contracts
Sources: Merger Agreement (Foothill Independent Bancorp), Merger Agreement (Foothill Independent Bancorp)
Properties. (a) The real property set forth on Section 3.15 3.13(a) of the Company Disclosure Schedule correctly lists Letter constitutes all Owned Real Property. The Company or one of its Subsidiaries, has good fee simple title to each parcel of real property leased 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 subleased 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 Subsidiary as of the date hereof its Subsidiaries (the “Real PropertyLeases”). The Company has made available to the Parent Entities true and its Subsidiaries do not own any Real Property complete in fee simpleall material respects copies of each Lease.
(bc) 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: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists are no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary pending or, to the knowledge Knowledge of Sellerthe Company, threatened condemnation or eminent domain proceedings that affect any other party theretoOwned Real Property or Leased Real Property.
(e) To the Company’s Knowledge, the Company has violated 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 the terms or conditions under any such Lease, except for any such violations which 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 , the Company and or one of its Subsidiaries have adequate rights of ingress has good title to, or a valid and egress and adequate electricbinding leasehold or other interest in (subject to the General Enforceability Exceptions), light, telephone and water utilities with respect to all Real Property tangible personal property necessary for operation the conduct of the business of the Company and its Subsidiaries in the ordinary course Subsidiaries, taken as a whole, as currently conducted, free and consistent in clear of all material respects with past practice and with the business plans of the Company and its Subsidiaries as in effect on the date hereofEncumbrances, 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofthan Permitted Encumbrances.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement (Black Box Corp)
Properties. (a) Section 3.15 Issuer and its Subsidiaries have good title to, or good and valid leasehold interests in, all property and assets reflected on the Issuer Balance Sheet or acquired after the Issuer Balance Sheet Date, except as have been disposed of since the Disclosure Schedule correctly lists Issuer Balance Sheet Date in the Ordinary Course of Business and in compliance with this Agreement, in each parcel case free and clear of real property leased or subleased by the Company or any Subsidiary as of the date hereof all Liens (the “Real Property”other than Permitted Liens). The Company properties and assets owned or leased by Issuer and its Subsidiaries do not own 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 Real Property of its Subsidiaries owns or has ever owned any interest in fee simplereal property.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real PropertyEach lease, together with all amendments and modifications thereto 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 in accordance with its terms; and (ii) all material amounts due and payable as rent due under each such Lease have been paid in full (except that routine reconciliations neither Issuer nor any of typical lease charges such as taxesits Subsidiaries, common area maintenance paymentsnor to Issuer’s Knowledge any other party to a Lease, insurance and the like may still be owed for prior years if such amounts have not been billed by landlords has violated any provision of, or are in the routine process of payment on the date hereof taken or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) failed to Seller’s knowledge, there exists no material default or event, occurrence, condition or take any act which, with the giving of notice or the without notice, lapse of time time, or both, would become constitute a breach or default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary or, to the knowledge provisions 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 havethose breaches or defaults that, individually or in the aggregate, are not and would not reasonably be expected to 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 Material Adverse Effecttrue, 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 (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. 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 Consent from any party to any such Lease other than Issuer. With respect to any Leased Real Property, Issuer and any of its Subsidiaries have adequate rights of ingress enjoys peaceful and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation undisturbed possession 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Leased Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofProperty.
Appears in 2 contracts
Sources: Stock Purchase Agreement (ONCOSEC MEDICAL Inc), Stock Purchase Agreement (ONCOSEC MEDICAL Inc)
Properties. (a1) Section 3.15 The Company or one of its Subsidiaries has (i) good and marketable fee title to the Disclosure Schedule correctly lists each parcel of real property leased or subleased owned in fee by the Company or any Subsidiary 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 options to purchase or lease (in the case of the date hereof Owned Properties), leases, subleases, rights of first offer, conditions of limitation, easements, Liens, covenants, rights-of-way and other restrictions (the “Real Property”collectively, "Title Matters"). The Company , except for such Liens and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to haveTitle Matters, which individually or in the aggregate, do not have a Material Adverse Effect: Effect or which do not materially and adversely affect the current use or value of any Company Properties significant to the Company and its Subsidiaries taken as a whole.
(i2) each material lease Each agreement under which real property is leased, subleased or licensed to the Company or one of Real Propertyits Subsidiaries (collectively, together with all amendments and modifications thereto (each, a “Lease”the "Company Leases") is in full force and effect in accordance with its terms; (ii) 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 respective terms and the like may still be owed for prior years if such amounts have not been billed by landlords Company or are in one of its Subsidiaries is the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement holder of the lessee’s obligations 's or tenant's interest thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default under any of the Company Leases by the Company or event, occurrence, condition or act any of its Subsidiaries and no circumstance exists which, with the giving of notice or notice, the lapse passage of time or both, would become both could result in such 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 Leasedefault, except for any such violations which would not havematters or other circumstances which, individually or in the aggregate, do not have a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business Except as set forth in Section 3.14(b) of the Company and its Subsidiaries in Disclosure Schedule, the ordinary course and consistent in all material respects with past practice and with consummation of the business plans Merger or other transactions contemplated hereby does not violate the terms of any of the Company and its Subsidiaries Leases, other than violations, which individually or in the aggregate do not have a Material Adverse Effect. Except as set forth in effect on Section 3.14(b) of the date hereofCompany 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 the failure any of the Company or its Subsidiaries to have such rights as would not constituteforegoing matters which, individually or in the aggregate, do not have a Material Adverse Effect.
(3) Each of the Company and its Subsidiaries has all permits necessary to own or operate its Owned Real Property and Leased Real Property as currently owned, and, to the knowledge of the Company, no such permits will be required, solely as a result of the Merger or the other transactions contemplated hereby, to be issued after the Closing in 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 would 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 have, individually or been remedied in the aggregate, all respects which has a Material Adverse Effect, . There is no condemnation proceeding or other litigation is pending or, to the knowledge of Sellerthe Company, threatened condemnation or other governmental taking of any of the Owned Real Property or Leased Real Property, which would preclude have a Material Adverse Effect. All material buildings, structures, improvements and fixtures located on, under, over or impair within the use Company Properties, taken as a whole, (A) are in good operating condition and repair and are structurally sound and free of any such Real Property by the Company material defects; and its Subsidiaries (B) are suitable, sufficient and appropriate in all respects for the purposes for which it is currently used or proposed to be used as of the date hereoftheir current and contemplated uses.
Appears in 2 contracts
Sources: Merger Agreement (Xtra Corp /De/), Merger Agreement (Wheels Mergerco LLC)
Properties. (a) Section 3.15 4.16(a) (Part I) of the Company Disclosure Schedule correctly lists Letter sets forth a list of the common name of each parcel of 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 any a Company Subsidiary after the date of this Agreement. Except as set forth in Section 4.16(a) (Part II) of the date hereof (Company Disclosure Letter, there are no real properties that the “Real Property”). The Company and its Subsidiaries do not own or any Real Property in fee simpleCompany Subsidiary is obligated to buy, lease or sublease at some future date.
(b) Except The Company or a Company Subsidiary owns good and valid fee simple title or leasehold title (as applicable) to each of the Company Properties, in each case, free and clear of Liens, except for Company Permitted Liens that have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The For the purposes of this Agreement, “Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect Permitted Liens” shall mean any (i) Liens relating to all Real Property for operation of the business of the Company and its Subsidiaries any Indebtedness incurred in the ordinary course and of business consistent in all material respects with past practice practice, (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 with for which there are adequate reserves on the business plans financial statements of the Company (if such reserves are required pursuant to GAAP), (iii) any Company Material Contracts or 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 Company Property, (iv) Liens imposed or promulgated by Law or any Governmental Authority, including zoning regulations, permits and its Subsidiaries as in effect licenses, (v) Liens that are disclosed on the date hereof, except for the failure existing Company Title Insurance Policies made available by or on behalf of the Company or its Subsidiaries any Company Subsidiary to have such rights as would not constituteParent prior to the date hereof and, individually with respect to leasehold interests, Liens on the underlying fee or leasehold interest of the applicable ground lessor, lessor or sublessor, (vi) 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 aggregateordinary course of business consistent with past practice that are not yet subject to penalty or the validity of which is being contested in good faith by appropriate proceedings, a Material Adverse Effect. Except as would and (vii) any other Liens, limitations, restrictions or title defects that do not have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or materially impair the use value of any such Real Property by the Company Property or the continued use and its Subsidiaries for operation of the purposes for which it is Company Property as currently used or proposed to be used as of the date hereofand operated.
Appears in 2 contracts
Sources: Merger Agreement (Realty Income Corp), Merger Agreement (American Realty Capital Trust, Inc.)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) 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 any of its Subsidiaries is the landlord, sublandlord, tenant, subtenant or occupant (i) each material lease of Real Property, together with all amendments and modifications thereto (each, 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 in full force valid and effect in accordance with its terms; (ii) 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 are in the routine process of payment binding on the date hereof Company or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since Subsidiary thereof party thereto, and, to the commencement Knowledge of the original term of such Lease and no material waiverCompany, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Leaseeach other party thereto. Neither the Company nor any Subsidiary 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 Knowledge of Sellerthe Company, by any other party thereto, and no event has violated 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 terms 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 received any written notice of termination or conditions cancelation, and to the Knowledge of the Company, no termination or cancelation is threatened, under any such material Company Real Property Lease.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company or its Subsidiaries have good and valid fee simple title to all of the real property 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 (i) free and clear of all Liens of any nature whatsoever, except for any such violations which Permitted Liens, (ii) in good condition and repair, reasonable wear and tear excepted, and (iii) adequate to carry on the business of the Company and its Subsidiaries, except as would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business .
(c) Section 3.17(c) of the Company Disclosure Schedules sets forth a list of all Company Leased Real Property and its Subsidiaries in the ordinary course 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 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 Owned Real Property.
(d) Except as would not constitutenot, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, no neither the Company nor any of its Subsidiaries has received written notice of any condemnation proceeding or other litigation proposed action or agreement for taking in lieu of condemnation, nor is any such proceeding, action or agreement pending or, to the knowledge Knowledge of Sellerthe Company, threatened which would preclude or impair the use with respect to any portion of any such Company Owned Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofProperty.
Appears in 2 contracts
Sources: Merger Agreement (Gildan Activewear Inc.), Merger Agreement (Hanesbrands Inc.)
Properties. (a) Section 3.15 Except as disclosed or reserved against in the Lanxide Financial Statements, the Lanxide Companies have good, valid and, in the case of real property, marketable title to, or a valid leasehold interest in, free and clear of all material liens, encumbrances, charges, defaults, or equities of whatever character, all of the Disclosure Schedule correctly lists each parcel of real property leased material properties and assets, tangible or subleased intangible, reflected in the Lanxide Financial Statements as being owned by the Company or any Subsidiary Lanxide Companies as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Leasehereof, except for any such violations title or interest the failure of which would not have, individually or in the aggregate, a Material Adverse EffectEffect on Lanxide. The Company To the best knowledge of Lanxide's management, all buildings, and its Subsidiaries have adequate rights of ingress all fixtures, equipment, and egress other property and adequate electric, light, telephone and water utilities with respect to all Real Property for operation assets held under leases or subleases by any of the business Lanxide Companies, are held under valid instruments which are in full force and effect (except 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 Company equitable remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceedings may be brought) and its Subsidiaries in each of the ordinary course and consistent in all material respects with past practice and Lanxide Companies has complied with the business plans terms of the Company all such leases or subleases to which it is a party and its Subsidiaries as under which it is in effect on the date hereofoccupancy, except for the failure of the Company to comply or its Subsidiaries to have such rights as be in full force and effect which would not constitutereasonably be expected to, individually or in the aggregate, have a Material Adverse EffectEffect on Lanxide. Except as would not haveTo the best knowledge of Lanxide's management, individually or in the aggregatepolicies of fire, a Material Adverse Effecttheft, no condemnation proceeding or liability, and other litigation is pending or, insurance maintained with respect to the knowledge assets or businesses of Sellerthe Lanxide Companies provide adequate coverage against loss, threatened and the fidelity bonds in effect as to which would preclude or impair any of the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it Lanxide Companies is currently used or proposed a named insured are believed to be used as of the date hereofsufficient.
Appears in 2 contracts
Sources: Merger Agreement (Commodore Environmental Services Inc /De/), Merger Agreement (Lanxide Corp)
Properties. (a) Each of Holdings, the Borrower and the Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business (including the Mortgaged Properties), except for Permitted Encumbrances, Liens permitted under Section 3.15 6.02 and 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 extent such interference could not reasonably be expected to result in a Material Adverse Effect.
(b) 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 currently conducted. To the knowledge of Holdings and the Borrower, the operation and conduct of the Disclosure businesses of Holdings, the Borrower and the Subsidiaries (including the use or practice of any Intellectual Property and Software therein) does not infringe, misappropriate or dilute any Intellectual Property owned by any other Person except as could not reasonably be expected to result in a Material Adverse Effect. As of the Effective Date, no other Person has contested in writing any right, title or interest of Holdings, the Borrower 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 Material Adverse Effect. As of the Effective Date, there are no pending (or, to the knowledge of Holdings and the Borrower, threatened) actions, investigations, suits, proceedings or orders with respect to any such infringement, misappropriation or dilution or any other violation, impairment, contest or challenge in writing relating to material Intellectual Property except as could not reasonably be expected to result in a 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) Schedule correctly lists 3.05(c) sets forth the address of each parcel of real property that is owned or leased or subleased by the Company Borrower or any Subsidiary as of the date hereof (Effective Date after giving effect to the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simpleTransactions.
(bd) Except as would not As of the Effective Date, none of Holdings, the Borrower or any Subsidiary has received notice of, or has knowledge of, any pending or contemplated condemnation proceeding affecting any Mortgaged Property or any sale or disposition thereof in lieu of condemnation that could reasonably be expected likely to have, individually or result in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (RedPrairie Holding, Inc.), Credit Agreement (RedPrairie Holding, Inc.)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i) each material lease , the Company or one of Real Propertyits Subsidiaries has good and valid title to, together with all amendments or in the case of leased property and modifications thereto (eachleased tangible assets, a “Lease”) is in full force valid leasehold interest in, all of its material real properties and effect in accordance with its terms; (ii) all material amounts due and payable as rent due under each such Lease have been paid in full tangible assets (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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Company’s or conditions under any such Leaseof its Subsidiaries’ Oil and Gas Properties, except for any such violations which are subject to Section 3.25), free and clear of all Liens other than 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 the Company and each of its Subsidiaries as presently conducted. 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 and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for the tangible personal property currently used in the operation of the business of the Company and its Subsidiaries is in the ordinary course good working order (reasonable wear and consistent in all material respects with past practice and with the business plans tear excepted).
(b) Each of the Company and its Subsidiaries as has complied with the terms of all leases to which it is a party, and all such leases are in effect on the date hereoffull force and effect, except for the any such noncompliance or failure of the Company or its Subsidiaries to have such rights as would not constitutebe 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 would not have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge .
(c) Section 3.18(c) of Seller, threatened which would preclude or impair the use of any such Real Property by the Company Disclosure Letter sets forth a true and complete list of (i) all material real property owned by Company or any of its Subsidiaries (other than Oil and Gas Properties) and (ii) all material real property leased for the purposes for which it is currently used or proposed to be used as benefit of the date hereofCompany or any of its Subsidiaries (other than Oil and Gas Properties). This Section 3.18 does not relate to intellectual property, which is the subject of Section 3.19.
Appears in 2 contracts
Sources: Merger Agreement (Civitas Resources, Inc.), Merger Agreement (SM Energy Co)
Properties. (a) Section 3.15 Neither the Company nor its Subsidiary owns, or has ever owned, any 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, reasonably be expected to have a Company Material Adverse Effect, (i) each Real Property Lease is valid and binding on the Company and, to the Knowledge of the Disclosure Schedule correctly lists Company, each other party thereto, and is in full force and effect, subject to the Enforceability Exceptions, (ii) all rent and other sums and charges payable by the Company or 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 Subsidiary or, to the Knowledge of the Company, the landlord thereunder, exists under any Real Property Lease, (iv) the Company and its Subsidiary has a good and valid leasehold interest in each parcel of real property leased or subleased by it free and clear of all Liens, except Permitted Liens and (v) neither the Company or nor its Subsidiary has received written notice of any Subsidiary as pending, and to the Knowledge of the date hereof (Company, there is no threatened, condemnation with respect to any property leased pursuant to any of the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simpleLeases.
(bc) Except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect: (i) , each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business of the Company and its Subsidiaries Subsidiary has title to, or a valid leasehold interest in, as applicable, all personal property used in the ordinary course their respective businesses free and consistent in all material respects with past practice and with the business plans clear of the Company and its Subsidiaries as in effect on the date hereofany Liens, except for the failure of the Company or its Subsidiaries Permitted Liens. Such personal property and leased real property (taken as a whole) is in good operating condition and repair, ordinary wear and tear and deferred maintenance excepted, and except for such failures to be in good operating condition and repair which would not reasonably be expected to have such rights as would not constitute, individually or in the aggregate, a Company Material Adverse Effect. Except as would not have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (scPharmaceuticals Inc.), Merger Agreement (Mannkind Corp)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists The Borrower and each parcel of real Restricted Subsidiary has good title to, or valid leasehold interests in, or easements, licenses or other limited property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and interests sufficient for its Subsidiaries use thereof in, all its property material to its business, except for minor defects in title that do not own any Real Property in fee simple.
(b) Except interfere with its ability to conduct its business as would not reasonably be expected currently conducted or to haveutilize such properties for their intended purposes and except where the failure to have such title, leasehold interest, easement, license or other limited property interest, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect: .
(ib) The Borrower and each material lease Restricted Subsidiary owns or has the right to use, all Intellectual Property that is necessary for the conduct of Real its business as currently conducted, except to the extent any such failure to own or have the right to use such Intellectual Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 havecase, 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). The Company To the knowledge of the Borrower and the Restricted Subsidiaries, no Intellectual Property used by the Borrower or any Restricted Subsidiary in the operation of its Subsidiaries have adequate business infringes upon the rights of ingress and egress and adequate electric, light, telephone and 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 hereofany other Person, except for the failure of the Company or its Subsidiaries to have any such rights as would not constituteinfringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Except as would not have, individually No claim or in litigation regarding any Intellectual Property owned or used by the aggregate, a Material Adverse Effect, no condemnation proceeding Borrower or other litigation any Restricted Subsidiary is pending or, to the knowledge of Sellerthe Borrower or any Restricted Subsidiary, threatened which would preclude against the Borrower or impair any Restricted Subsidiary that, individually or in the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed aggregate, could reasonably be expected to be used as result in a Material Adverse Effect. As of the date hereofEffective Date, any Intellectual Property that, individually or in the aggregate, is material to the business of the Borrower and the Restricted Subsidiaries (or to the business of the Borrower and the Domestic Subsidiaries) is owned by or licensed to the Borrower or another Loan Party.
Appears in 2 contracts
Sources: First Amendment (Costar Group, Inc.), Credit Agreement (Costar Group, Inc.)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 one of its Subsidiaries has good fee simple title to have such rights as would not constituteall Owned Real Property and valid leasehold estates in all Leased Real Property free and clear of all Encumbrances, individually or in the aggregate, a Material Adverse Effectexcept Permitted Encumbrances. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding the Company or one of its Subsidiaries 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 licensees pursuant to 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, neither the Company nor any of its Subsidiaries is a lessor or grantor under any material lease or other litigation instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any material Owned Real Property or material portion thereof.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) each lease for the Leased Real Property is in full force and 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 default under any lease for the Leased Real Property either by the Company or its Subsidiaries 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 constitute a default by the Company or its Subsidiaries thereunder.
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (i) there are no pending or, to the knowledge Knowledge of Sellerthe Company, threatened which would preclude condemnation or impair eminent domain proceedings that affect any Owned Real Property or Leased Real Property, and (ii) the use Company has not received any written notice of the intention of any such Governmental Entity or other Person to take any Owned Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofLeased Real Property.
Appears in 2 contracts
Sources: Merger Agreement (United Technologies Corp /De/), Merger Agreement (Goodrich Corp)
Properties. (a) Section 3.15 Except as has not been or would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, the Company and its Subsidiaries have good title to, or good and valid leasehold interests in, all property and assets reflected on the Balance Sheet or 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 Liens (other than Permitted Liens).
(b) Neither the Company nor any of its Subsidiaries owns, nor has ever owned, fee title to any real property. Neither the Company nor any of its Subsidiaries is party to an option or other agreement for the purchase or sale of fee title to real property. Except as has not been or would not reasonably be expected to 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 or any of its Subsidiaries leases, subleases or licenses any real property (whether as landlord or tenant), and to the Knowledge of the Company, the prime lease for any Lease that is a sublease (“Prime Lease”), 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 of its Subsidiaries, nor to the Knowledge of the Company any other party to a Lease or Prime 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 breach or default under the provisions of such Lease or any Prime Lease, except for those breaches or defaults that have not been and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any of its Subsidiaries has received or given written notice that it, or any other party to any Lease or the Prime Lease, has breached, violated or defaulted under, any Lease or Prime Lease. Neither the Company nor any of its Subsidiaries has assigned, pledged, mortgaged, hypothecated or otherwise transferred any Lease or any interest therein. Schedule 3.15(b) of the Company Disclosure Schedule correctly lists Letter sets forth a true and complete list of all Leases to which the Company or any of its Subsidiaries is a party, in each parcel 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 or subleased by the Company or any Subsidiary as of its Subsidiaries under any Lease, together with all rights, title and interest of the date hereof (the “Real Property”)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 and or any of its Subsidiaries do not own any Real Property in fee simple.
(b) the operation of their respective businesses. To the Knowledge of the Company, the Company or its applicable Subsidiary obtained all necessary consents for each Lease. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: , (i) each material lease all personal property owned or leased by the Company or any of its Subsidiaries and all buildings, structures, fixtures and other improvements included in the Leased Real PropertyProperty are usable for their intended purposes in the ordinary course of, together with all amendments and modifications thereto (eachare sufficient for the operation of, a “Lease”) is in full force the business of the Company and effect in accordance with its terms; Subsidiaries, (ii) all material amounts due the Leased Real Property is in good condition and payable as rent due under each such Lease have been paid in full repair (except that routine reconciliations of typical lease charges such as taxessubject to normal wear and tear), 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case none of the lessee or an affiliate Leased Real Property has been in peaceable possession since the commencement of the original term of such Lease and no material waiver, indulgence damaged or postponement of the lessee’s obligations thereunder destroyed by fire or other casualty that has not been granted by the lessor; restored and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all 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 Subsidiaries. No Person leases, subleases, licenses or otherwise has the right to use or occupy, and no Person is in the ordinary course and consistent in all material respects with past practice and with the business plans possession of, any of the Company and its Subsidiaries as in effect on the date hereof, except for the failure of Leased Real Property other than the Company or its Subsidiaries to have such rights as would not constituteany Subsidiary of the Company. To the Knowledge of the Company, 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Leased Real Property by constitutes all the Company and its Subsidiaries real property necessary for the purposes for which it is currently used or proposed to be used as conduct of the date hereofCompany’s business as currently conducted.
Appears in 2 contracts
Sources: Merger Agreement (Astria Therapeutics, Inc.), Merger Agreement (Biocryst Pharmaceuticals Inc)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by Neither the Company nor any Company Subsidiary owns, or has ever owned, any Subsidiary as of the date hereof (the “Real Property”)real property. The Company and its Subsidiaries do not own any Real Property each Company Subsidiary has a valid leasehold interest in fee simple.
(b) Except as would not reasonably be expected to havethe Company Properties, except as, individually or in the aggregate, 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 material lease such failures to have such possession of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 properties or are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 haveassets 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 and its Subsidiaries have adequate rights has not received any written notice of ingress and egress and adequate electric, light, telephone and water utilities with respect a default from a landlord under any lease pursuant to all Real Property for operation of the business of which it occupies the Company Property (the “Company Leases”), which has not been cured or waived and its Subsidiaries in the ordinary course and consistent in all material respects with past practice and with the business plans of the Company Leases are valid and its Subsidiaries as in effect on the date hereoffull force and effect, except for the failure of the Company or its Subsidiaries to have such rights as would not constituteexcept, in each case, as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. .
(c) Except as would not have, individually or in the aggregate, have a Company Material Adverse Effect, no condemnation proceeding (i) the Company or one of the Company Subsidiaries has valid and subsisting ownership interests in all of the material tangible personal property necessary to conduct their business as now conducted, free and clear of all Liens, other litigation is pending or, to than Permitted Liens and (ii) the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property tangible personal property owned by the Company and the Company Subsidiaries is in good operating condition and repair for its Subsidiaries for the purposes for which continued use as it is currently used or proposed has been used, subject to be used as of the date hereofreasonable wear and tear.
Appears in 2 contracts
Sources: Merger Agreement (Jacobs Engineering Group Inc /De/), Merger Agreement (Keyw Holding Corp)
Properties. (a) Section 3.15 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 Disclosure Schedule correctly lists each parcel material real properties (except for any of real property leased or subleased by the Company Parent’s or any Subsidiary its Subsidiaries’ Oil and Gas Properties, which are subject to Section 4.25 and shall not constitute a Parent Property for the purposes of this Agreement) reflected as an asset on the most recent balance sheet of Parent included in the date hereof Parent SEC Documents (the each, a “Real Parent Property”). The Company , 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 do as presently conducted. Except for matters that, individually or in the aggregate, have not own had and would not reasonably be expected to have a Parent Material Adverse Effect, neither Parent nor any Real Property in fee simpleof its Subsidiaries has received notice to the effect that there are any condemnation, expropriation or other proceedings that are pending or, to the knowledge of Parent, threatened with respect to any material portion of any of the Parent Properties.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect: , (i) neither Parent nor any of its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy any the Parent Property or any portion thereof, (ii) there are no outstanding options, rights of first offer or rights of first refusal to purchase 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 use of any Parent Property and (iv) with respect to each material lease of Real Parent Property, together with all amendments material buildings, structures, fixtures and modifications thereto 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.
(eachc) Each lease pursuant to which Parent or one of its Subsidiaries has a leasehold interest in the Parent Properties, a “Lease”) to the knowledge of Parent, is in full force and effect and is valid and enforceable against the parties thereto in accordance with its terms; (ii) all material amounts due and payable , subject, 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary orenforceability, to the knowledge of Seller, any other party thereto, has violated any of the terms or conditions under any such LeaseCreditors’ Rights, except for any such violations which would not havefailure 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 Parent Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Pioneer Natural Resources Co), Merger Agreement (Parsley Energy, Inc.)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property Except in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Potlatch Material Adverse Effect: (i) , Potlatch or a Potlatch Subsidiary has good and valid title to, and marketable and insurable fee simple interest in or a valid leasehold interest in, each material lease of Real Property, together with all amendments and modifications thereto the real properties reflected as an asset on the most recent balance sheet of Potlatch included in the Potlatch Reporting Documents (each, a “LeasePotlatch Property”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement free and clear of the original term all conditions, encroachments, easements, rights of such Lease way, restrictions and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeaseLiens, except for any such violations conditions, encroachments, easements, rights of way, restrictions or Liens which would not havedo not, individually or in the aggregate, a Material Adverse Effect. The Company materially impair and its Subsidiaries have adequate rights of ingress would not reasonably be expected to materially impair the continued use and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business of the Company and its Subsidiaries real properties to which they relate in the ordinary course conduct of Potlatch and consistent in all material respects with past practice and with the business plans of the Company and its Subsidiaries each Potlatch Subsidiary as in effect on the date hereof, except presently conducted. Except for the failure of the Company or its Subsidiaries to have such rights as would not constitutematters that, individually or in the aggregate, have not had and would not reasonably be expected to have a 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 as would not havefor 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 condemnation proceeding 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.
(b) Except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Potlatch Material Adverse Effect, (i) neither Potlatch nor any Potlatch Subsidiary has leased or otherwise granted to any Person the right to use or occupy any Potlatch Property or any portion thereof, (ii) there are no outstanding options, rights of first offer or rights of first refusal to purchase any Potlatch Property owned by Potlatch or any Potlatch Subsidiary (“Owned 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 Potlatch Property and (iv) 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 operations of Potlatch and each Potlatch Subsidiary as presently conducted to the extent related to such Owned Potlatch Property.
(c) Except in respects that, individually or 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 issued, insuring Potlatch’s or the applicable Potlatch Subsidiary’s fee simple title to each of the Owned Potlatch Properties that is a manufacturing or similar facility, 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 not been any claim made against any such policy that has not been resolved and (iii) there is no suit, action or other litigation is proceeding pending or, to the knowledge Knowledge of SellerPotlatch, threatened against or affecting Potlatch or any Potlatch Subsidiary challenging Potlatch’s or the applicable Potlatch Subsidiary’s fee simple title to each of the Owned 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 Potlatch Properties, and all such 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 Potlatch Material Adverse Effect.
(e) Except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Potlatch Material Adverse Effect, neither Potlatch nor any Potlatch Subsidiary has taken any action which would preclude or impair the use disqualify portions of any such Real Potlatch Property by now assessed for ad valorem Taxes on the Company and its Subsidiaries basis of farm, forest or open space for the purposes for which it is currently used continued assessment as farm, forest or proposed to be used as of the date hereofopen space lands.
Appears in 2 contracts
Sources: Merger Agreement (Deltic Timber Corp), Merger Agreement (Potlatch Corp)
Properties. (a) Section 3.15 Neither the Company nor any of its Subsidiaries own any real property.
(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Prohibited Effect, each of the Disclosure Schedule correctly lists Company and its Subsidiaries has good and marketable title to all the properties and assets owned by the Company or any of its Subsidiaries or, in the case of property held under Lease or other Contract, each parcel of the Company 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 option agreements and any subordination, nondisturbance and attornment agreements (the "Leases"), with respect to all real property leased or subleased by the Company or any Subsidiary as of its Subsidiaries are in full force and effect. Neither the Company or any of its Subsidiaries nor, to the Company's Knowledge, any other party thereto is in default under any of the date hereof Leases (the “Real Property”and no event has occurred which, with due notice or lapse of time or both, would constitute such a default). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, except for such defaults which, individually or in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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, reasonably be expected to have a Material Adverse 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.
(d) The assets of the Company and its Subsidiaries have in the aggregate are adequate rights to conduct the operations of ingress the Company and egress its Subsidiaries in substantially the manner currently conducted.
(e) The tangible personal property of the Company and its Subsidiaries is in good condition and repair (ordinary wear and tear excepted) and is adequate electric, light, telephone for the uses to which it is being put and water utilities with respect to all Real Property for operation the conduct of the business of the Company and its Subsidiaries in as currently conducted.
(f) For purposes of this Agreement, the ordinary course and consistent in all material respects term "Lien" means any charge, claim, community property interest, condition, equitable interest, lien, option, pledge, security interest, right of first refusal, or restriction of any kind, 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 past practice and 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 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 respect to have such rights as would not constituteasset which, individually or in the aggregate, a Material Adverse Effect. Except as would does not havematerially detract from the value of, individually 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 aggregatedate of the Balance Sheet, a Material Adverse Effectfor which adequate reserves in accordance with GAAP are reflected on the Balance Sheet, no condemnation proceeding or other litigation is pending or, arose subsequent to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as date of the date hereofof 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. (a) Section 3.15 Either Parent or a Parent Subsidiary owns fee simple title (with respect to jurisdictions that recognize such form of title or substantially similar title with respect to all other jurisdictions) or leasehold title (as applicable) or air rights to each of the Disclosure Schedule correctly lists Parent Properties, in each parcel case, free and clear of real property leased or subleased by the Company or any Subsidiary as Liens, except for Parent Permitted Liens none of the date hereof (the “Real Property”). The Company which Parent Permitted Liens have had and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect: .
(b) Since January 1, 2021, neither Parent nor any of Parent Subsidiaries has received (i) each material lease written notice that any certificate, permit or license from any Governmental Authority having jurisdiction over any of Real Propertythe Parent Properties or any agreement, together with 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 Parent Properties or that is necessary to permit the lawful use and operation of all amendments utilities, parking areas, retention ponds, driveways, roads and modifications thereto (each, a “Lease”) other means of egress and ingress to and from any of the Parent Properties is not in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof of this Agreement (or are being disputed); (iii) in each case the lessee of any pending written threat of modification or an affiliate has been in peaceable possession since the commencement cancellation of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Leasesame), except for any such violations which would not havefailures to be in full force and effect that, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect. The Company and its Subsidiaries have adequate rights , or (ii) written notice of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation any uncured violation of any Laws affecting any 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 constituteParent Properties which, individually or in the aggregate, has had or would reasonably be expected to have a Parent Material Adverse Effect.
(c) Parent and any Parent Subsidiaries have valid and enforceable title to, or a valid and enforceable leasehold interest in, or other right to 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 used or held in connection with the applicable tenancy), except as individually or in the aggregate has not had and would not reasonably be expected to have a Parent Material Adverse Effect. Except as None of Parent’s or any Parent Subsidiaries’ ownership of or leasehold interest in any such personal property is subject to any Liens, except for Parent Permitted Liens and Liens that have not and would not have, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Kimco Realty Corp), Merger Agreement (RPT Realty)
Properties. (a) Section 3.15 3.10(a) of the Company Disclosure Schedule correctly lists each parcel sets forth a correct and complete list and location of (i) all operating real property owned or leased by the Company and its subsidiaries (including its headquarters and leases of office space) as of the date of this Agreement (the “Operating Properties”), (ii) all real property currently under development, expansion, renovation or subleased rehabilitation owned or leased by the Company and its subsidiaries as of the date of this Agreement (the “Development Properties”), and (iii) all parcels of undeveloped non-income producing land owned or leased by the Company and its subsidiaries (the “Land”) (collectively, the Operating Properties, the Development Properties and the Land, 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 referred to herein as the “Company Properties”). Each Company Property is owned or leased by the Company or any Subsidiary as a subsidiary of the date hereof (Company as indicated in Section 3.10(a) of the “Real Property”)Company Disclosure Schedule. The Company and its Subsidiaries subsidiaries own fee simple title to or, if so indicated in Section 3.10(a) of the Company Disclosure Schedule, lease each of the Company Properties, in each case free and clear of any Liens, title defects, contractual restrictions, covenants or reservations of interests in title (collectively, “Property Restrictions”), except for (i) Permitted Liens, (ii) Property Restrictions imposed or promulgated by Law or by any Governmental Entity which are customary and typical for similar properties or (iii) Property Restrictions which do not own any Real Property not, individually or in fee simple.
the aggregate, interfere materially with the current use of such property. None of the matters described in clauses (bi), (ii) Except as and (iii) above would not have or would reasonably be expected likely to have, individually or in the aggregate, a Material Adverse Effect: Effect on the Company. For purposes of this Agreement, “Permitted Liens” means (i) each material lease Liens for Taxes not yet due or delinquent or as to which there is a good faith dispute and for which there are adequate reserves on the financial statements of Real Propertythe Company (if such reserves are required pursuant to GAAP), together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) all with respect to real property, any Lien, encumbrance or other title defect disclosed on the Company Title Insurance Policies (as hereinafter defined) or on any existing lender’s title insurance policy made available to Purchaser (whether material amounts or immaterial), Liens and obligations arising under the Company Material Contracts, the Company Space Leases (as hereinafter defined) and any other Lien which does not, individually or in the aggregate, interfere materially with the current use of such property (assuming its continued use in the manner in which it is currently used) and (iii) inchoate materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s liens arising in the usual, regular and ordinary course and not past due and payable as rent due under each such Lease have been paid or the payment of which is being contested in full good faith by appropriate proceedings and for which there are adequate reserves on the financial statements of the Company (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 reserves are required pursuant to GAAP).
(b) The Company and each of its subsidiaries have not been billed good and sufficient title to all the material personal and non-real properties and assets reflected in their books and records as being owned by landlords or are them (including those reflected in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement consolidated balance sheet of the original term Company and its subsidiaries as of such Lease June 30, 2006, except as since sold or otherwise disposed of in the usual, regular and no material waiverordinary course of business), indulgence or postponement free and clear of all Liens, except for Permitted Liens.
(c) Except as provided for in Section 3.10(c) of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledgeCompany Disclosure Schedule, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither neither the Company nor any Subsidiary orof its subsidiaries has received any written notice to the effect that any condemnation or rezoning proceedings are pending or threatened with respect to any of the Operating Properties, in any case which would have a material adverse effect on such Operating Property or Development Properties.
(d) Except as set forth in Section 3.10(d) of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries, on the one hand, nor, to the knowledge Knowledge of Sellerthe Company, any other party theretoparty, has violated any of on the terms or conditions other hand, is in monetary default under any such Company Space Lease, except for any such violations which defaults that would not have or would not reasonably be likely to have, individually or in the aggregate, a Material Adverse EffectEffect on the Company. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business Except as set forth in Section 3.10(d) 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 hereofDisclosure Schedule, except for the failure of no defaults by the Company or its Subsidiaries have been alleged in writing by the lessees thereunder that have not been cured in all material respects and, to have such rights as the Company’s Knowledge, neither the Company nor any of its subsidiaries is in default under any Company Space Lease except for defaults that would not constitute, individually have or in the aggregate, a Material Adverse Effect. Except as would not reasonably be likely to have, individually or in the aggregate, a Material Adverse EffectEffect on the Company.
(e) Except as provided for in Section 3.10(e) of the Company Disclosure Schedule, no condemnation proceeding all work required to be performed, payments required to be made and actions required to be taken prior to the date hereof pursuant to any agreement entered into with a Governmental Entity in connection with a site approval, zoning reclassification or other litigation is pending orsimilar action relating to any Operating Properties (e.g., local improvement district, road improvement district) have been performed, paid or taken, as the case may be, other than those where the failure would not have or would not reasonably be likely to have, individually or in the knowledge aggregate, a Material Adverse Effect on the Company.
(f) Except as listed in Section 3.10(f) of Seller, threatened the Company Disclosure Schedule or which would preclude not have, or impair would not reasonably be likely to have, individually or in the use of any such Real Property by aggregate, a Material Adverse Effect on the Company, (i) the Company and all of its Subsidiaries for the purposes for which it is currently used or proposed subsidiaries have performed all obligations required to be used performed by it to date under each ground lease pursuant to which the Company or any of its subsidiaries is a lessee (individually, “Ground Lease” and collectively, “Ground Leases”) and (ii) neither the Company nor any of its subsidiaries, nor to the Knowledge of the Company, any other party, is in default under any Ground Lease (and to the Company’s Knowledge, no event has occurred which, with due notice or lapse of time or both, would constitute such a default).
(g) Except as set forth in Section 3.10(g) of the Company Disclosure Schedule, as of the date hereof, neither the Company nor any of its subsidiaries has delivered written notice to any tenant under any Company Space Lease, alleging that such tenant is in default thereunder, other than with respect to defaults that have been cured or waived or which would not, individually or in the aggregate, reasonably be likely to have a Material Adverse Effect on the Company.
(h) Except for those contracts or agreements set forth in Section 3.10(h) of the Company Disclosure Schedule, neither the Company nor any of its subsidiaries has entered into any contract or agreement (collectively, the “Participation Agreements”) with any third party or any employee, consultant, Affiliate (as hereinafter defined) or other person (the “Participation Party”) which provides for a right of such Participation Party to participate, invest, join, partner, have any interest in whatsoever (whether characterized as a contingent fee, profits interest, equity interest or otherwise) or have the right to any of the foregoing in any proposed or anticipated investment opportunity, joint venture, partnership or any other current or future transaction or property in which the Company or any subsidiary has or will have an interest, including but not limited to those transactions or properties identified, sourced, produced or developed by such Participation Party (a “Participation Interest”). Section 3.10(h) of the Company Disclosure Schedule sets forth the only transactions or Company Properties for which any Participation Party currently has a Participation Interest pursuant to such Participation Agreements.
(i) There are no agreements, written or oral, between the Company or any of its subsidiaries and any other Person relating to the use or occupancy of any Company Property by a Person other than the Company or any of its subsidiaries, other than the Company Space Leases and reciprocal easement agreements.
(j) Except as would not, individually or in the aggregate, reasonably be likely to have a Material Adverse Effect on the Company, all properties currently under development or construction by the Company or any subsidiary and all properties currently proposed for acquisition, development or commencement of construction prior to the Effective Time by the Company or any subsidiary are reflected in the Company’s capital budget (“2006 Budget”), delivered to Parent prior to the date hereof.
Appears in 1 contract
Sources: Merger Agreement (Inland Retail Real Estate Trust Inc)
Properties. Except as set forth in Section 3.25 of the Company Disclosure Schedule:
(a) Section 3.15 (i) each of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own has good, valid and marketable title to all material real property owned by Company or any Real Property of its Subsidiaries (collectively, the "OWNED REAL PROPERTY") free of all Liens, in fee simple.
(b) Except as would not reasonably be expected to haveeach case except, individually or in the aggregate, as could not reasonably be expected to have a Material Adverse Effect: Effect on Company and (iii) each material lease there are no outstanding contracts for the sale of any Owned Real Property, together except those contracts relating to property the value in respect of which does not exceed $500,000 individually or $1,000,000 in the aggregate.
(b) Pursuant to the leases and subleases (the "REAL PROPERTY LEASES") of Company and its Subsidiaries with respect to all amendments material real property which is leased or subleased by Company or its Subsidiaries (the "LEASED REAL PROPERTY"), Company and modifications thereto (eachits Subsidiaries hold good and valid leasehold title to the Leased Real Property, a “Lease”) is in full force and effect each case in accordance with its terms; (ii) the provisions of the applicable Real Property Lease and free of 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 taxesLiens, 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 haveexcept, individually or in the aggregate, as could not reasonably be expected to have a Material Adverse EffectEffect on Company. The Company and its Subsidiaries have adequate rights Each of ingress and egress and adequate electric, light, telephone and water utilities with respect to all the 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 Leases is enforceable against Company or its Subsidiaries Subsidiary, as the case may be, and, to have the knowledge of Company, against the other party thereto, in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and general equitable principles (whether considered in a proceeding in equity or at law) and except for such rights failures to be enforceable as would not constitutecould not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as would not have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofEffect on Company.
Appears in 1 contract
Properties. (a) Section 3.15 Each of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property has good and marketable title to, or a valid leasehold interest in, all material properties owned or leased by them, including all property reflected in fee simple.
the balance sheets referred to in Section 4.5(a) and in the Pro Forma Balance Sheet (bexcept as sold or otherwise disposed of since the respective dates of such balance sheets in the ordinary course of business or as otherwise permitted by this Agreement), free and clear of all Liens, other than (i) Except in the case of Collateral, Permitted Collateral Liens, (ii) in the case of all other material property, Permitted Encumbrances, and (iii) as referred to in the balance sheets or in the notes thereto. The property of the Company and its Subsidiaries, taken as a whole, (i) is in good operating order, condition and repair (ordinary wear and tear excepted), except to the extent that the failure to be in such condition would not reasonably be expected to haveresult in a Material Adverse Effect, and (ii) constitutes all the property which is required for the business and operations of the Company and its Subsidiaries (taken as a whole) as presently conducted.
(b) Schedule 4.11(b) contains a true and complete list of each interest in Real Property (i) owned by the Company and its Subsidiaries as of the date hereof and describes the type of interest therein held by the Company and its Subsidiaries and (ii) leased, subleased or otherwise occupied or utilized by the Company or its Subsidiaries, as lessee, sublessee, franchisee or licensee, as of the date hereof and describes the type of interest therein held by the Company and its Subsidiaries and whether such lease, sublease or other instrument requires the consent of the landlord thereunder or other parties thereto to the Transactions.
(c) Neither the Company nor any Subsidiary of the Company has received any notice of, nor has actual knowledge of, the occurrence or pendency or contemplation of any Casualty Event affecting all or any portion of its property. No Mortgage encumbers improved Real Property that is located in an area that has been identified by the U.S. Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the National Flood Insurance Act of 1968 unless flood insurance available under such Act has been obtained in accordance with Section 5.4(d).
(d) The Company and its Subsidiaries own or have rights to use all of the Collateral and all rights with respect to any of the foregoing used in, necessary for or material to the Company's and its Subsidiaries' businesses as currently conducted. The use by the Company and its Subsidiaries of such Collateral and all such rights with respect to the foregoing do not infringe on the rights of any person other than such infringement which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate . No claim has been in peaceable possession since made and remains outstanding that the commencement Company's or its Subsidiaries' use of any Collateral does or may violate the original term rights of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 third party thereto, has violated any of the terms or conditions under any such Lease, except for any such violations which would not havethat would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business .
(e) Each of the Company and its Subsidiaries shall cause the Equipment to be maintained and preserved in good repair, working order and condition, reasonable wear and tear and damage by casualty excepted, and shall as quickly as commercially practicable make or cause to be made all repairs, replacements and other improvements which are necessary or appropriate in the ordinary course and consistent in all material respects with past practice and with the business plans conduct of the Company Company's 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofSubsidiaries' respective businesses.
Appears in 1 contract
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property Except in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Weyerhaeuser Material Adverse Effect: (i) , Weyerhaeuser or a Weyerhaeuser Subsidiary has good and valid title to, and marketable and insurable fee simple interest in or a valid leasehold interest in, each material lease of Real Property, together with all amendments and modifications thereto the real properties reflected as an asset on the most recent balance sheet of Weyerhaeuser included in the Weyerhaeuser Reporting Documents (each, a “LeaseWeyerhaeuser Property”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement free and clear of the original term all conditions, encroachments, easements, rights of such Lease way, restrictions and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeaseLiens, except for any such violations conditions, encroachments, easements, rights of way, restrictions or Liens which would not havedo not, individually or in the aggregate, a Material Adverse Effect. The Company materially impair and its Subsidiaries have adequate rights of ingress would not reasonably be expected to materially impair the continued use and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business of the Company and its Subsidiaries real properties to which they relate in the ordinary course conduct of Weyerhaeuser and consistent in all material respects with past practice and with the business plans of the Company and its Subsidiaries each Weyerhaeuser Subsidiary as in effect on the date hereof, except presently conducted. Except for the failure of the Company or its Subsidiaries to have such rights as would not constitutematters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Weyerhaeuser Material Adverse Effect, neither Weyerhaeuser nor any Weyerhaeuser Subsidiary has received notice to the effect that there are any condemnation, expropriation or other proceedings that are pending or, to the Knowledge of Weyerhaeuser, threatened with respect to any material portion of any of the Weyerhaeuser Properties. Except as would not havefor the owners of the properties in which Weyerhaeuser or a Weyerhaeuser 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 Weyerhaeuser Material Adverse Effect, no condemnation proceeding Person other than Weyerhaeuser or a Weyerhaeuser Subsidiary has any ownership interest in any of the Weyerhaeuser Properties, except to the extent that such interest would not be reasonably expected to adversely impact Weyerhaeuser’s or the Weyerhaeuser Subsidiary’s continued use of the applicable Weyerhaeuser Property consistent with its operation as of the date of this Agreement.
(b) Except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Weyerhaeuser Material Adverse Effect, (i) neither Weyerhaeuser nor any Weyerhaeuser Subsidiary has leased or otherwise granted to any Person the right to use or occupy any Weyerhaeuser Property or any portion thereof, (ii) there are no outstanding options, rights of first offer or rights of first refusal to purchase any Weyerhaeuser Property or any portion thereof or interest therein, (iii) there are no boundary disputes relating to any Weyerhaeuser Property and no encroachments materially and adversely affecting the use of any Weyerhaeuser Property and (iv) with respect to each Weyerhaeuser Property, all material buildings, structures, fixtures and improvements are in all respects adequate and sufficient and in satisfactory condition to support the operations of Weyerhaeuser and each Weyerhaeuser Subsidiary as presently conducted.
(c) Except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Weyerhaeuser Material Adverse Effect, (i) policies of title insurance or updates or endorsements have been issued, insuring Weyerhaeuser’s or the applicable Weyerhaeuser Subsidiary’s fee simple title to each of the Weyerhaeuser Properties that is a manufacturing or similar facility owned by Weyerhaeuser or a Weyerhaeuser Subsidiary, in amounts at least equal to the purchase price paid for ownership of such Weyerhaeuser Property or such entity that owned such Weyerhaeuser Property at the time of the issuance of each such policy, (ii) there has not been any claim made against any such policy that has not been resolved and (iii) there is no suit, action or other litigation is proceeding pending or, to the knowledge Knowledge of SellerWeyerhaeuser, threatened against or affecting Weyerhaeuser or any Weyerhaeuser Subsidiary challenging Weyerhaeuser’s or the applicable Weyerhaeuser Subsidiary’s fee simple title to each of the Weyerhaeuser Properties owned by Weyerhaeuser or a Weyerhaeuser Subsidiary.
(d) Each of Weyerhaeuser and each Weyerhaeuser Subsidiary has complied with the terms of all leases pursuant to which Weyerhaeuser or a Weyerhaeuser Subsidiary has a leasehold interest in the Weyerhaeuser Properties, and all such 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 Weyerhaeuser Material Adverse Effect.
(e) Except in respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Weyerhaeuser Material Adverse Effect, neither Weyerhaeuser nor any Weyerhaeuser Subsidiary has taken any action which would preclude or impair the use disqualify portions of any such Real Weyerhaeuser Property by now assessed for ad valorem Taxes on the Company and its Subsidiaries basis of farm, forest or open space for the purposes for which it is currently used continued assessment as farm, forest or proposed to be used as of the date hereofopen space lands.
Appears in 1 contract
Sources: Merger Agreement (Weyerhaeuser Co)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries have good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of their respective real properties and tangible assets that are necessary for the Company and its Subsidiaries to conduct their respective businesses as currently conducted, free and clear of all Liens other than (i) 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, (ii) mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the Ordinary Course of Business of the Company and its Subsidiaries and (iii) any such matters of record, Liens and other imperfections of title that do not own any Real Property not, individually or in fee simple.
the aggregate, 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 (b) “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 (ireasonable wear and tear excepted).
(b) each material lease Each of Real Propertythe Company and its Subsidiaries has complied with the terms of all leases to which it is a party, together with and all amendments such leases are in full force and modifications thereto (eacheffect, a “Lease”) is except for any such noncompliance or failure to be in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 havethat, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress enjoy peaceful and egress and adequate electric, light, telephone and water utilities with respect to undisturbed possession under 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 hereofsuch leases, except for the any such failure of the Company or its Subsidiaries to have such rights as would not constitutedo so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Except as would not have, individually or in .
(c) Section 4.18(c) of the aggregate, Company Disclosure Letter sets forth a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge true and complete list of Seller, threatened which would preclude or impair the use of any such Real Property (i) all real property owned by the Company and its Subsidiaries and (ii) all real property leased for the purposes for which it is currently used or proposed to be used as benefit of the date hereofCompany or any of its Subsidiaries.
(d) This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Sources: Merger Agreement (CohBar, Inc.)
Properties. (a) Section 3.15 Either Parent or a Parent Subsidiary has good and valid fee simple title or leasehold title (as applicable) to each of the Disclosure Schedule correctly lists Parent Properties, in each parcel case, free and clear of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simpleLiens, except for Parent Permitted Liens.
(b) Except Parent and each Parent Subsidiary has in effect all Property Permits or agreements, easements or other rights that are necessary to permit the current use and operation of each of the Parent Properties and the buildings and improvements on any of the Parent Properties, except for such failures to have in effect that, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect. Neither Parent nor any of the Parent Subsidiaries has received (i) written notice that any Property Permit or any agreement, easement or other right that is necessary to permit the current use and operation of the Parent Properties and the buildings and improvements on any of the Parent Properties is not in full force and effect as of the date of this Agreement, except for such failures to be in full force and effect that, individually, or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect, or (ii) written notice of any uncured violation of any Laws affecting any of the Parent Properties that, individually or in the aggregate, would reasonably be expected to have a Parent Material Adverse Effect.
(c) Parent and the Parent Subsidiaries have good and valid title to, or a valid and enforceable leasehold interest in, or other right to 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 or residents and used or held in connection with the applicable tenancy), except as, individually or in the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect. To Parent’s Knowledge, none of Parent’s or any of the Parent Subsidiaries’ ownership of or leasehold interest in any such personal property is subject to any Liens, except for Parent Permitted Liens and Liens that would not reasonably be expected to have a Parent Material Adverse Effect.
(d) Neither Parent nor any Parent Subsidiary has received written notice that Parent or any Parent Subsidiary is in violation or default under any material reciprocal easement agreement, declaration of covenants, conditions, and restrictions, deed restriction or other similar agreements to which Parent or any Parent Subsidiary is a party (or to which owned Parent Property is subject), except for violations or defaults that have been cured or that have not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company Parent nor any Parent Subsidiary or, has delivered a written default notice to the knowledge of Seller, any other a party thereto, has violated any of the terms or conditions under any such Leasereciprocal easement agreement, declaration of covenants, conditions, and restrictions, deed restriction, or other similar agreements to which a member of Parent or any Parent Subsidiary is a party (or to which owned Parent Property is subject), except for any such violations which defaults that have been cured or that have not had or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 1 contract
Properties. (a) Section 3.15 The Company has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its real properties and tangible assets that are necessary for the Company to conduct its business as it is currently conducted, free and clear of all Liens other than (i) Liens for current Taxes and assessments not yet past due, (ii) mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the Ordinary Course of Business of the Disclosure Schedule correctly lists each parcel Company consistent with past practice and (iii) any such matters of real property leased record, Liens and other imperfections of title that do not, individually or subleased by in the aggregate, materially impair the continued ownership, use and operation of the assets to which they relate in the business of the Company or any Subsidiary as of the date hereof currently conducted (the “Real PropertyPermitted Liens”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) 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 satisfactory operating condition (iordinary wear and tear excepted).
(b) each material lease The Company has complied with the terms of Real Propertyall leases to which it is a party, together with if any, and all amendments such leases are in full force and modifications thereto (eacheffect, a “Lease”) is except for any such noncompliance or failure to be in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 havethat, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company enjoys peaceful and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to undisturbed possession under 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 hereofsuch leases, except for the any such failure of the Company or its Subsidiaries to have such rights as would not constitutedo so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Except as would not have, individually or in .
(c) Section 4.18(c) of the aggregate, Company Disclosure Letter sets forth a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge true and complete list of Seller, threatened which would preclude or impair the use of any such Real Property (i) all real property owned by the Company and its Subsidiaries (ii) all real property leased for the purposes for which it is currently used or proposed to be used as benefit of the date hereofCompany.
Appears in 1 contract
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: , the Company and its Subsidiaries 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 material real 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 and in compliance with this Agreement, in each case, free and clear of all Liens other than Permitted Liens.
(ib) each material lease of Real PropertyThe Company and its Subsidiaries have such easements and rights-of-way (collectively, together with all amendments and modifications thereto (each, a “Leaserights-of-way”) is as are sufficient to conduct their businesses in full force and effect in accordance with its terms; (ii) all material amounts due and payable respects 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Leasecurrently conducted, except for any such violations rights-of-way the absence of which would not have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 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 EffectCompany. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Company and each of its Subsidiaries has fulfilled and performed all its material obligations with respect to such rights-of-way which are required to be fulfilled or performed (subject to all applicable waivers, modifications, grace periods and extensions) and (ii) no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or would result in any material impairment of the rights of the holder of any such rights-of-way.
(c) Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each lease, sublease or license (each, a “Lease”) under which the Company or any of its Subsidiaries leases, subleases or licenses any real property is valid and in full force and effect and (ii) neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company 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 breach or default under the provisions of such Lease or permit termination, modification or acceleration by any third party thereunder, and to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under any Lease, in each case, other than such items, if any, that have been cured.
(d) Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) to the Knowledge of the Company, none of the Company or any of its Subsidiaries has received any written notice of any pending or threatened condemnation proceeding Action with respect to any of the real property it owns, leases, licenses or otherwise occupies and (ii) to the Knowledge of the Company, no Person leases, subleases, licenses or otherwise has the right to use or occupy any of the real property referred to in Section 5.16(a) or Section 5.16(c) other litigation is than the Company or any Subsidiary of the Company.
(e) Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, as of the date of this Agreement, there does not exist any pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as Knowledge of the date hereofCompany, threatened, condemnation or eminent domain Actions that affect any of the real property (including the Company’s Oil and Gas Properties or rights-of-ways).
Appears in 1 contract
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists The Company and each parcel of Company Subsidiary has good and valid title to, and with respect to real property leased or subleased owned by the Company or any Subsidiary as of the date hereof Company Subsidiary, marketable and insurable fee simple interest in, or valid license or leasehold interests in, all their respective properties and assets (the “Real PropertyCompany Properties”). The Company and its Subsidiaries do not own any Real Property ) except in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect: (i) each material lease . The Company Properties are, in all respects, adequate and sufficient, and in satisfactory condition, to support the operations of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 the Company and the like may still be owed for prior years if such amounts have not been billed by landlords or are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeaseSubsidiaries as presently conducted, except for any such violations which would not havein respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. All of the Company Properties owned by the Company or any Company Subsidiary are owned 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(a) does not relate to Intellectual Property Rights matters, which are the subject of Section 4.16.
(b) The Company and each of the Company Subsidiaries has complied with the terms of all leases, subleases and licenses entitling it to the use of real property owned by third parties (the “Company Leases”), and all the Company Leases are valid and in full force and effect, except, in each case, 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 its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation each Company Subsidiary is in exclusive possession of the business of properties or assets purported to be leased under all 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 hereofLeases, except for the failure of the Company or its Subsidiaries such failures to have such rights as would not constitutepossession of material properties or assets as, individually or in the aggregate, a Material Adverse Effect. Except as do not materially impair and would not havereasonably be expected to materially impair, the continued use and operation of such material assets to which they relate in the conduct of the Company’s and the Company Subsidiaries’ business 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 Company Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 1 contract
Properties. (a) Section 3.15 Each of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company Borrower and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, subject to no Liens except those in favor of the Administrative Agent and other Permitted Liens, and except for minor defects in title that do not own any Real Property in fee simpleinterfere 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 of the Effective Date (copies of each of which have been provided to the Administrative Agent), each of which to the knowledge of the Borrower and the Subsidiary that is a party thereto, (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 and there is no default thereunder and (iii) has not been amended or modified, nor any provisions thereof waived, except, in each case, for matters affecting the enforceability, effectiveness, breaches or amendments and modifications which in the aggregate are not reasonably be expected likely to haveresult in a Material Adverse Effect.
(c) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other intellectual property material to its business, and the use thereof by the 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, could not reasonably be expected to result in a Material Adverse Effect: .
(id) each material lease The place of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 business or are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement chief executive office of the original term of Borrower and each Subsidiary is at the location shown on Schedule 3.5(d) or at such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary or, --------------- other locations as disclosed 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 Administrative Agent in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 writing after the date hereof, except . The federal employee identification number for the failure Borrower and each of the Company or its Subsidiaries to have such rights as would not constitute, individually or in the aggregate, a Material Adverse Effectis set forth on Schedule 3.5(d). Except as would not have, individually or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.---------------
Appears in 1 contract
Sources: Credit Agreement (Us Concrete Inc)
Properties. (a) Section 3.15 The Company or one of its Subsidiaries has good and valid title to, or in the Disclosure Schedule correctly lists each parcel case of leased property and leased tangible assets, a valid leasehold interest in, all of its real property leased properties and tangible assets that are necessary for the Company and/or its Subsidiaries to conduct their respective businesses as currently conducted, free and clear of all Liens other than (i) Liens for Taxes and assessments not yet past due or subleased the amount or validity of which is being contested in good faith by appropriate proceedings, (ii) mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the Ordinary Course of Business of the Company or any such Subsidiary as that are either not the responsibility and liability of the date hereof Company or such Subsidiary or are being bonded over, paid for and/or removed in full prior to the Closing consistent with past practice, (the “Real Property”). The Company iii) any such matters of record, such as Liens and its Subsidiaries other imperfections of title to tangible or real property that do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to havenot, individually or in the aggregate, 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 Material Adverse Effect: (i) each material lease of Real Propertyparty, together with and all amendments such leases are in full force and modifications thereto (eacheffect, a “Lease”) is except for any such noncompliance or failure to be in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 havethat, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business Each of the Company and its Subsidiaries in the ordinary course enjoys peaceful and consistent in undisturbed possession under all material respects with past practice and with the business plans of the Company and its Subsidiaries as in effect on the date hereofsuch leases, except for the any such failure of the Company or its Subsidiaries to have such rights as would not constitutedo so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Except as would not have, individually or in .
(c) Section 4.18(c) of the aggregate, Company Disclosure Letter sets forth a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge true and complete list of Seller, threatened which would preclude or impair the use of any such Real Property (i) all real property owned by the Company and or any of its Subsidiaries and (ii) all real property leased for the purposes for which it is currently used or proposed to be used as benefit of the date hereof.Company or any of its Subsidiaries. This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19. Section 4.19
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Properties. (a) Section 3.15 of Except where the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries failure to do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to haveso, individually or in the aggregate, has not had and 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 (iexcept 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) each material lease of Real Propertythe Company owns or leases, together with all amendments and modifications thereto as applicable (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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"Company Property"), 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 are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement free and clear of the original term all conditions, encroachments, easements, rights of such Lease way, restrictions and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeaseLiens, except for any such violations Permitted Liens and conditions, encroachments, easements, rights of way, restrictions or Liens which would not havedo not, individually or in the aggregate, a Material Adverse Effect. The Company materially impair and its Subsidiaries have adequate rights would not reasonably be expected to materially impair the continued use and operation of ingress and egress and adequate electric, light, telephone and water utilities with respect the real properties to all Real Property for operation which they relate in the conduct 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 each Company and its Subsidiaries Subsidiary as in effect on the date hereof, except presently conducted. Except for the failure of the Company or its Subsidiaries to have such rights as would not constitutematters 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 has received 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 material portion of any of the Company Properties. Except as would not havefor the owners of the properties in which the Company or 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 leased, subleased or otherwise granted to any Person the right to use or occupy any Company Property or any portion thereof, (ii) there are no condemnation proceeding outstanding options, rights of first offer or rights of first refusal to purchase 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 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 Company Subsidiary as presently conducted.
(c) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) policies of title insurance or 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 amounts at least equal to the purchase price paid for ownership of such Company Property, (ii) there has not been any Claim made against any such policy that has not been resolved and (iii) there is no suit, action or other litigation is Proceeding pending or, to the knowledge Knowledge of Sellerthe Company, threatened which would preclude against or impair affecting the use Company or any Company Subsidiary challenging the Company's or the applicable Company Subsidiary's fee simple title to each of any such Real Property the Company Properties owned by the Company or a Company Subsidiary.
(d) Each of the Company and its Subsidiaries 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 the purposes for which it is currently used such noncompliance or proposed failure to be used as 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 date hereofCompany, 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. (a) Section 3.15 As of the Disclosure Schedule correctly lists date of this Agreement, the Perfection Certificate sets forth the address of each parcel of real property (or each set of parcels that collectively comprise one operating property) that is owned or leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simpleeach Loan Party.
(b) Except Each of the 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 Real Estate Assets (including any Mortgaged Properties) and has good and marketable title to 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 for their intended purposes and except where the failure to have such title would not reasonably be expected to have a 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: .
(if) each material lease Each of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 the Borrower and the like may still be owed Subsidiaries owns or possesses, or 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 prior years if such amounts have not been billed by landlords or are in the routine process present conduct of payment its business, without any conflict with the rights of others, and free from any burdensome restrictions on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement present conduct of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Leaseits business, except for any where such violations which failure to own, possess or hold pursuant to a license or such conflicts and restrictions would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 1 contract
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists Ticketmaster and each parcel of Ticketmaster Subsidiary has good and valid fee simple title to, or good and valid leasehold interests in, all their respective real property leased or subleased by the Company or any Subsidiary as of the date hereof properties and assets (the “Ticketmaster Real PropertyProperties”). The Company and its Subsidiaries do not own any Real Property ) except in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Ticketmaster Material Adverse Effect: (i) each material lease . The Ticketmaster Real Properties are, in all respects, adequate and sufficient, and in satisfactory condition, to support the operations of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 Ticketmaster and the like may still be owed for prior years if such amounts have not been billed by landlords or are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 LeaseTicketmaster Subsidiaries as presently conducted, except for any such violations which would not havein respects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Ticketmaster Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation All of the business Ticketmaster Real Properties are free and clear 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 hereofLiens, except for the failure of the Company or its Subsidiaries to have such rights as would not constitutePermitted Liens and Liens on material Ticketmaster Real Properties that, individually or in the aggregate, a Material Adverse Effect. Except as do not materially impair and would not havereasonably be expected to materially impair, the continued use and operation of such material Ticketmaster Real Properties to which they relate in the conduct of Ticketmaster and the Ticketmaster Subsidiaries as presently conducted and Liens on other Ticketmaster Real Properties that, individually or in the aggregate, have not had and would not reasonably be expected to have a Ticketmaster Material Adverse Effect, no condemnation proceeding or other litigation is pending or, .
(b) Ticketmaster and each of the Ticketmaster Subsidiaries has complied with the terms of all leases and subleases entitling it to the knowledge of Seller, threatened which would preclude or impair the use of any such the leased Ticketmaster Real Property by Properties (“Ticketmaster Leases”), and all Ticketmaster Leases are valid and in full force and effect, except as, individually or in the Company aggregate, has not had and its Subsidiaries for would not reasonably be expected to have a Ticketmaster Material Adverse Effect. Ticketmaster and each Ticketmaster Subsidiary is in exclusive possession of the purposes for which it is currently used or proposed premises purported to be used leased under all the Ticketmaster Leases, except for such failures to have such possession of such properties as, individually or in the aggregate, have not had and would not reasonably be expected to have a Ticketmaster Material Adverse Effect.
(c) Ticketmaster and each Ticketmaster Subsidiary has good and valid title to, or good and valid leasehold interests in, all of their respective property and assets (other than the Ticketmaster Real Properties), and such property and assets are, in all respects, adequate and sufficient, and in satisfactory condition, to support the operations of Ticketmaster and the Ticketmaster 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 Ticketmaster Material Adverse Effect. This Section 4.15 does not relate to Intellectual Property Rights matters, which are the subject of the date hereofSection 4.16.
Appears in 1 contract
Sources: Merger Agreement (Live Nation, Inc.)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect: , the Company or a Subsidiary of the Company owns and has either good and valid fee title or a valid leasehold interest, Right of Way or other rights to the land, mineral and 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 Liens (i) each material lease 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, all leases, Rights of Real PropertyWay or other agreements under which the Company or any of its Subsidiaries lease, together with all amendments access or use any real property are valid, binding and modifications thereto (each, a “Lease”) is 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 its their respective terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither neither the Company nor any Subsidiary or, to the knowledge of Seller, any other party thereto, has violated its Subsidiaries are in default under any of the terms such leases, Rights of Way or conditions under any such Lease, except for any such violations which would not have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business other agreements.
(b) Each of the Company and its Subsidiaries in has such consents, easements, rights of way, permits and licenses (collectively, “Rights of Way”) from each person as are sufficient to conduct its business as currently conducted, except for such Rights of Way the ordinary course absence of which do not have and consistent in all material respects with past practice and with the business plans would not reasonably be expected to have a Company Material Adverse Effect. Each of the Company and its Subsidiaries as has fulfilled and performed all its material obligations with respect to such Rights of Way and conducts their business in effect on a manner that does not violate any of the date hereofRights of Way, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or would result in any impairment of the rights of the holder of any such Rights of Way, except for the failure of the Company or its Subsidiaries such revocations, terminations and impairments that have not and would not reasonably be expected to have such rights as would not constitute, individually or in the aggregate, a Company Material Adverse Effect. Except as would not have, individually All pipelines owned or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property operated by the Company and its Subsidiaries for are subject to Rights of Way, there are no encroachments or other encumbrances on the purposes for which it is currently used Rights of Way that materially affect the use thereof and there are no gaps (including any gap arising as a result of any breach by the Company or proposed to be used as any of its Subsidiaries of the date hereofterms 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 Material Adverse Effect.
Appears in 1 contract
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(bi) Except as 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 good and indefeasible fee simple title to each of the material real properties (iexcept for any of the Company’s or any Company Subsidiaries’ Oil and Gas Properties, which are subject to Section 3.1(p) each material lease and shall not constitute a Company Property for the purposes of this Agreement) the Company owns (the “Owned Real Property”), together with in each case free and clear of all amendments conditions, encroachments, easements, rights of way, restrictions and modifications thereto (eachLiens, a “Lease”) is in full force and effect in accordance with its terms; except for Permitted Liens.
(ii) all material amounts due Except where the failure to do so has not had 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The , 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 its Subsidiaries have adequate 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 ingress way, restrictions and egress and adequate electric, light, telephone and 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 hereofLiens, except for the failure of the Company or its Subsidiaries to Permitted Liens. Except for matters that have such rights as not had and would not constitute, individually or in the aggregate, a Material Adverse Effect. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, no condemnation proceeding neither the Company nor any Company Subsidiary has received notice to the effect that there are any condemnation, expropriation or other litigation is Proceedings that are pending or, to the knowledge Knowledge of Sellerthe Company, threatened which with respect to any material portion of any of the Company Properties. Except for the owners of any Leased Real Property, 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 would preclude not reasonably be expected to have, individually or impair in the aggregate, a Company Material Adverse Effect, (A) neither the Company nor any Company Subsidiary has leased, subleased or otherwise granted to any Person the right to use or occupy any Company Property or any portion thereof, (B) there are no outstanding options, rights of first offer or rights of first refusal to purchase 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 use of any such Real Company Property by and (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 its Subsidiaries each Company Subsidiary as presently conducted.
(iv) 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 Leased Real Property, and all such leases are in full force and effect, except for the purposes for which it is currently used such noncompliance or proposed failure to be used as of in full force and effect that would not reasonably be expected to have, individually or in the date hereofaggregate, a Company Material Adverse Effect.
Appears in 1 contract
Properties. (a) Section 3.15 SIR has made available to STAR a list of the Disclosure Schedule correctly lists each parcel of real property currently owned or ground leased or subleased by the Company SIR or any SIR Subsidiary, together with the applicable SIR Subsidiary owning or leasing such property. Except as disclosed in title insurance policies and reports (and the documents or surveys referenced in such policies and reports): (A) SIR or a SIR Subsidiary owns fee simple title to each of the date hereof SIR Properties, free and clear of Liens, except for Permitted Liens; (the “Real Property”). The Company B) except as has not had and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to havenot, individually or in the aggregate, have a SIR Material Adverse Effect: (i) each material lease , neither SIR nor any SIR Subsidiary has received written notice of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) all material amounts due and payable as rent due under each such Lease have been paid in full (except that routine reconciliations any violation 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 are in the routine process any Law affecting any portion of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement any of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted SIR Properties issued by the lessorany Governmental Authority; and (ivC) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, except as would 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 havenot, individually or in the aggregate, have a SIR Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities neither SIR nor any SIR Subsidiary has received notice to the effect that there are (1) condemnation or rezoning proceedings that are pending or threatened with respect to all Real Property for operation any of the business SIR Properties or (2) zoning, building or similar Laws, codes, ordinances, orders or regulations that are or will be violated by the continued maintenance, operation or use of any buildings or other improvements on any of the Company and its Subsidiaries in SIR Properties or by the ordinary course and consistent in all material respects with past practice and with the business plans continued maintenance, operation or use of the Company and its Subsidiaries as in effect on parking areas.
(b) SIR has not received written notice of, nor does SIR have any Knowledge of, any material latent defects or adverse physical conditions affecting any of the date hereofSIR Properties or the improvements thereon, except for the failure of the Company or its Subsidiaries to have such rights as would not constitutenot, individually or in the aggregate, have a SIR Material Adverse Effect.
(c) SIR and the SIR Subsidiaries have good title to, or a valid and enforceable leasehold interest in, all personal assets owned, used or held for use by them. Except as would not have, individually or in Neither SIR’s nor the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use SIR Subsidiaries’ ownership of any such Real personal property is subject to any Liens, other than Permitted Liens.
(d) A policy of title insurance has been issued for each SIR Property insuring, as of the effective date of such insurance policy, (i)(A) fee simple title interest held by SIR or the Company applicable SIR Subsidiary with respect to SIR Properties that are not subject to ground leases and its Subsidiaries for (B) a valid leasehold estate held by SIR or the purposes for which it is currently used or proposed applicable SIR Subsidiary that are subject to be used ground leases and (ii) to the Knowledge of SIR, such insurance policies are in full force and effect, and no material claim has been made against any such policy that remains outstanding as of the date of hereof.
Appears in 1 contract
Properties. (a) Section 3.15 Each of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by Company, the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company 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 own any Real 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 in fee simpleof the Consolidated Businesses is held by the Borrower and its Subsidiaries and is not held directly by the Company.
(b) Except as would There 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 collectively with other Projects could reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect: , (iB) each material lease condemnation or relocation of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 any roadways abutting any Unencumbered Eligible Project or any other Project if such amounts action with respect to such Project either individually or collectively with other Projects could reasonably be expected to have not been billed by landlords or are in the routine process of payment on the date hereof or are 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 material waivera Material Adverse Effect, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (ivC) denial of access to Seller’s knowledge, there exists no material default any Unencumbered Eligible Project from any point of access to such Unencumbered Eligible Project or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Project if such Lease, except for any action with respect to such violations which would not have, Project either individually or in the aggregate, collectively with other Projects could reasonably be expected to have a Material Adverse Effect. The Company Each Unencumbered Eligible Project, and its Subsidiaries have adequate rights of ingress and egress and adequate electriceach other Project, light, telephone and water utilities if such failure with respect to all Real Property for operation 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 business 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 Company and its Subsidiaries in the ordinary course and consistent foregoing comply in all material respects with past practice all applicable laws, rules and with regulations of Governmental Authorities.
(c) Neither the business plans existence of any Improvements upon a Project or the present use or condition of any Project violates in any material respect any applicable laws, rules and regulations of Governmental Authorities. Each Project may be operated in its current fashion and the Consolidated Businesses have received no notices from any Governmental Authority alleging any material violation by any Project of any applicable laws, rules or regulations. Certificates of occupancy have been issued for all of the Company and its Subsidiaries as in effect Improvements located on the date hereofUnencumbered Eligible Projects, 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair 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 Real Property by Unencumbered Eligible Projects that are material to the Company and its Subsidiaries for 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 purposes for which it is currently used extent that the same have been restored to their condition prior thereto. No written notices of material violation of any federal, state, or proposed local law or ordinance or order or requirement have been received with respect to be used as of the date hereofany Projects.
Appears in 1 contract
Properties. (a) Except as set forth on Section 3.15 4.09 of the Seller Disclosure Schedule correctly lists each parcel Letter, (i) no Transferred Real Property is subject to any Lien, including without limitation, any right to the use or occupancy of real property leased any Transferred Real Property, other than Permitted Liens, and (ii) neither Seller or subleased by the Company applicable Divesting Entity has (x) subleased, licensed or otherwise granted any Person the right to use or occupy any Transferred Real Property or any Subsidiary as of the date hereof portion thereof, or (the “Real Property”)y) collaterally assigned or granted any other security interest in any Transferred Lease or any interest therein. The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) , each material lease of Transferred Lease constitutes the entire agreement between the parties thereto with respect to the Transferred Real PropertyProperty leased thereunder, together and is, with all amendments and modifications thereto (eachrespect to Seller or the applicable Divesting Entity, a “Lease”) is valid and subsisting agreement in full force and effect in accordance with its terms; effect, pursuant to which Seller or the applicable Divesting Entity has a valid and enforceable leasehold estate in, and enjoys peaceful and undisturbed possession of (ii) 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 subject to the like may still be owed for prior years if such amounts have not been billed by landlords or are in the routine process of payment on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement terms of the original term Transferred Lease), the Transferred Real Property, subject to the Bankruptcy and Equity Exception. Neither Seller nor any Divesting Entity has received any notice of such termination or cancellation of or of a breach or default under any Transferred Lease and no material waiverthat remains uncured nor, indulgence or postponement to the Knowledge of the lessee’s obligations thereunder Seller, has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act any event occurred which, with the giving of notice or the lapse of time or both, would become constitute a breach or 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 Transferred Lease, except for or permit the termination or cancellation of any such violations which Transferred Lease, in each case, except as would not havenot, individually or in the aggregate, 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 Material Adverse Effecttrue and complete list as of the date hereof of all agreements relating to the Transferred Real Property (each a “Transferred Lease”). The Company Seller has heretofore made available to Purchaser true, correct and its Subsidiaries have adequate rights complete copies of ingress the Transferred Leases together with all material amendments and egress and adequate electric, light, telephone and water utilities modifications with respect to all 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 for and that would, individually or in the aggregate materially reduce the value, use and operation of the business Transferred Real Property and the Business. Neither Seller nor any Divesting Entity has received written notice of the Company 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 its Subsidiaries 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 and consistent in all material respects with past practice and with course.
(d) To the business plans Knowledge of Seller, there are no conditions or defects, latent or otherwise, to 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 constituteTransferred Real Property that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as Effect on the 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 case, to the extent the same would not have, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to Effect on the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Adaptimmune Therapeutics PLC)
Properties. The Company and its Subsidiaries own all of their material assets reflected as owned by them on the Latest Company Report (aexcept for assets consumed, sold or otherwise disposed of in the usual, regular and ordinary course of business), subject, in each case, to no Encum brance, except as set forth in the Latest Company Report, excepting any Encumbrance the existence or enforcement of which could not reasonably be expected to have a Material Adverse Effect on the Company. Except as disclosed in the Company Disclosure Letter, the Company and its Subsidiaries own all of their material Proprietary Rights relating to the Microtel, Hawthorn and Best brands (the "Brands") Section 3.15 subject to no Encumbrance arising by express consent or agreement of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”)its Affiliates. The Company and its Subsidiaries do not own all other material Proprietary Rights they purport to own, subject in each case to no Encumbrance excepting any Real Property in fee simple.
(b) Except as would Encumbrance that could not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment Effect on the date hereof Company. The material Proprietary Rights owned by the Company or are being disputed); (iii) in each case its Subsidiaries include all Proprietary Rights the lessee or an affiliate has been in peaceable possession since use of which is reasonably necessary for the commencement continued conduct of the original term of such Lease and no material waiver, indulgence or postponement business of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights as now conducted. To the knowledge of ingress the Company and egress its Subsidiaries, the use by the Company and adequate electric, light, telephone and water utilities with respect to its Subsidiaries of all Real Property for Proprietary Rights in the 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 does not cause any infringement of the Company Proprietary Rights of others, and its Subsidiaries as in effect on the date hereof, except for the failure of there are no claims against the Company or its Subsidiaries for such infringement except as disclosed in the Company Reports or the Company Disclosure Letter or except where such infringement could not reasonably be expected to have such rights as would not constitute, individually or in the aggregate, a Material Adverse EffectEffect on the Company. Except as Neither the Company nor any of its Affiliates is in breach or default of any agreement relating to the acquisition or license by the Company or its Affiliates of any material Proprietary Rights, nor has any event occurred nor does any condition exist that, but for the giving of notice or passage of time, or both, would constitute a breach or default thereunder except for any breach or default that could not have, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to Effect on the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofCompany.
Appears in 1 contract
Sources: Recapitalization Agreement (Us Franchise Systems Inc/)
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists The Company and each parcel of Company Subsidiary has good and valid fee simple interest in all real property leased owned, and valid license or subleased leasehold interests in all real property leased, by the Company or any Company Subsidiary as of the date hereof (collectively, the “Real PropertyCompany Properties”). The Company ) except (i) for Liens permitted by the last sentence of this Section 4.16(a) and its Subsidiaries do not own any Real Property (ii) in fee simple.
(b) Except as would not reasonably be expected to haverespects that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect: . All of the Company Properties owned by the Company or any Company Subsidiary are owned free and clear of all Liens, except for (i) each material lease Liens affecting the interest of Real Propertythe grantor of any easements benefiting owned real property and Liens of record attaching to real property, together with all amendments and modifications thereto (eachfixtures or leasehold improvements, a “Lease”) is which would not reasonably be expected to materially impair the use of the real property in full force and effect in accordance with its terms; the operation of the business thereon, (ii) all Liens on 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 haveProperties 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 business of the Company and the Company Subsidiaries as presently conducted, (iii) Permitted Liens and (iv) Liens that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.
(b) All leases with respect to leased Company Properties (the “Company Leases”) are valid and in full force and effect, except, in each case, 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 its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation each Company Subsidiary is in possession of the business of properties or assets purported to be leased under all 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 hereofLeases, except for the failure of the Company or its Subsidiaries (i) such failures to have such rights as would not constitutepossession of material properties or assets thereunder as, individually or in the aggregate, a Material Adverse Effect. Except as do not materially impair and would not havereasonably be expected to materially impair, the continued use and operation of such material properties and assets to which they relate in the conduct of the Company’s and the Company Subsidiaries’ business as presently conducted and (ii) failures to have such possession of such material properties or assets as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 1 contract
Properties. (a) Except as otherwise provided in Section 3.15 of 4.15 with respect to Oil and Gas Interests, the Disclosure Schedule correctly lists Borrower and each parcel of Restricted Subsidiary has good title to, or valid leasehold interests in, all such real and personal property leased material to its business, except for (i) minor defects in title that do not, in the aggregate, interfere with its ability to conduct its business as currently conducted or subleased by the Company or any Subsidiary as of the date hereof to utilize such properties for their intended purposes and (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simpleii) Liens permitted under Section 7.02.
(b) Except as All material leases and agreements necessary for the conduct of the business of the Borrower and the Restricted Subsidiaries are valid and subsisting, in full force and effect, and there exists no default, or event or circumstance which with the giving of notice or the passage of time or both would give rise to a default, under any such lease or agreement which could reasonably be expected to have a Material Adverse Effect.
(c) The rights and Properties presently owned, leased or licensed by the Borrower and the Restricted Subsidiaries including all easements and rights of way, include all rights and Properties necessary to permit the Borrower and the Restricted Subsidiaries to conduct their business, in all material respects.
(d) All of the Properties of the Borrower and the Restricted Subsidiaries (other than the Oil and Gas Interests, which are addressed in Section 4.18) which are reasonably necessary for the operation of their businesses are in good working condition and are maintained in accordance with prudent business standards, except for any such Properties the failure of which to be in good working condition or so maintained could not reasonably be expected to havehave a Material Adverse Effect.
(e) The Borrower and each Restricted Subsidiary owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and such Restricted Subsidiaries, as the case may be, does not infringe 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: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 1 contract
Sources: Credit Agreement (PDC Energy, Inc.)
Properties. (a) Section 3.15 Each of the Disclosure Schedule correctly lists each parcel of 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 its real and personal property leased or subleased by material to its business (including all Mortgaged Properties), except for defects in the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries foregoing that do not own any Real Property in fee simple.
(b) Except 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 failure to have such title or other ownership rights would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: . All such material properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 6.02.
(ib) each material lease Each of Real Property, together the Borrower and the Restricted Subsidiaries has complied with all amendments and modifications thereto (each, obligations under all leases to which it is a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Leaseparty, except for any such violations which where the failure to comply would not have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect reasonably be expected 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 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 a 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) As of the Restatement Effective Date, neither the Borrower nor any of the Restricted Subsidiaries has received any written notice of, nor has any knowledge of, any pending or contemplated condemnation proceeding for any material portion of the Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.
(d) As of the Restatement Effective Date, neither the Borrower nor any of the Restricted Subsidiaries is obligated under any right of first refusal, option or other litigation contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein.
(e) Each of the Borrower and the Restricted Subsidiaries owns, or is pending orlicensed or otherwise has the right to 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 which would not reasonably be expected to result in a Material Adverse Effect, and the use thereof by the Borrower and the Restricted Subsidiaries does not, to the knowledge of Sellerany Responsible Officer of the Borrower, threatened which would preclude or impair infringe upon the use rights of any other Person, except for any such Real Property by infringements that, individually or in the Company aggregate, would not reasonably be expected to result in a Material Adverse Effect.
(f) Schedule 3.05(f) lists completely and its Subsidiaries for the purposes for which it is currently used or proposed to be used correctly as of the date hereofRestatement Effective Date all real property owned in fee by the Borrower or the Restricted Subsidiaries (and the addresses thereof) that are material to their business.
(g) Schedule 3.05(g) lists completely and correctly as of the Restatement Effective Date all real property leased by the Borrower or the Restricted Subsidiaries (and the addresses thereof) that are material to their business.
Appears in 1 contract
Sources: Credit Agreement (Huntington Ingalls Industries, Inc.)
Properties. (a) Section 3.15 Each of the Disclosure Schedule correctly lists each parcel of 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 its real and personal property leased or subleased by material to its business (including all Mortgaged Properties), except for defects in the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries foregoing that do not own any Real Property in fee simple.
(b) Except 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 failure to have such title or other ownership rights would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: . All such material properties and assets are free and clear of Liens, other than Liens expressly permitted by Section 6.02.
(ib) each material lease Each of Real Property, together the Borrower and the Restricted Subsidiaries has complied with all amendments and modifications thereto (each, obligations under all leases to which it is a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Leaseparty, except for any such violations which where the failure to comply would not have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect reasonably be expected 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 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 a 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) As of the Second Restatement Effective Date, neither the Borrower nor any of the Restricted Subsidiaries has received any written notice of, nor has any knowledge of, any pending or contemplated condemnation proceeding for any material portion of the Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.
(d) As of the Second Restatement Effective Date, neither the Borrower nor any of the Restricted Subsidiaries is obligated under any right of first refusal, option or other litigation contractual right to sell, assign or otherwise dispose of any Mortgaged Property or any interest therein.
(e) Each of the Borrower and the Restricted Subsidiaries owns, or is pending orlicensed or otherwise has the right to 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 which would not reasonably be expected to result in a Material Adverse Effect, and the use thereof by the Borrower and the Restricted Subsidiaries does not, to the knowledge of Sellerany Responsible Officer of the Borrower, threatened which would preclude or impair infringe upon the use rights of any other Person, except for any such Real Property by infringements that, individually or in the Company aggregate, would not reasonably be expected to result in a Material Adverse Effect.
(f) Schedule 3.05(f) lists completely and its Subsidiaries for the purposes for which it is currently used or proposed to be used correctly as of the date hereofSecond Restatement Effective Date all real property owned in fee by the Borrower or the Restricted Subsidiaries (and the addresses thereof) that are material to their business.
Appears in 1 contract
Sources: Credit Agreement (Huntington Ingalls Industries, Inc.)
Properties. (a) Section 3.15 Except as set forth on Schedule 4.08(a), the Company and each of its Subsidiaries own good title to, or hold pursuant to valid and enforceable leases, all of the Disclosure Schedule correctly lists each parcel of real tangible personal property (including without limitation all Frac Fluid tanks, trucks, trailers and vehicles and vehicles owned or leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(bSubsidiaries) Except as would not reasonably shown to be expected to have, individually owned or in the aggregate, a Material Adverse Effect: (i) each material lease of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its terms; (ii) 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 leased by landlords or are in the routine process of payment them on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement Latest Balance Sheet, free and clear of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Leaseall Liens, except for any such violations which would not havePermitted Liens, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights except for assets disposed of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Real Property for operation of the business of by the Company and its Subsidiaries in the ordinary course of business consistent with past practices since the date of the Latest Balance Sheet. Such assets, in their current state, comprise all material tangible personal assets used in and necessary to permit the Company to continue to conduct its business as presently conducted in the ordinary course of business. To the Company’s Knowledge, all Frac Fluid tanks, trucks, trailers and vehicles owned or leased by the Company are road-worthy, to the extent applicable and have been maintained in accordance with normal industry practice, applicable Federal Motor Carrier Safety Administration (“FMCSA”) regulations and any contractual requirements related to such tangible assets except to the extent any violation or noncompliance would not cause any Material Adverse Effect. To the Company’s Knowledge, all Frac Fluid tanks, trucks, trailers, vehicles, highway tractors and highway trailers owned or leased by the Company: (i) are structurally adequate for operation in the ordinary course of business consistent with past practices; (ii) have been maintained in accordance with normal industry practice with the regulations of the FMCSA or the Federal Railroad Administration as the case may be, and with any contractual requirements related to such equipment; and (iii) are in good operating condition and repair (subject to normal wear and tear not caused by neglect), in all material respects with past practice and with cases, except to the business plans extent any such failure to be structurally adequate for operation or in good operating condition or adequately maintained would not have a Material Adverse Effect. All tangible personal property assets of the Company and its Subsidiaries as are of an insurable character (including all Frac Fluid tanks, trucks, trailers and other vehicles), are insured by insurers of recognized responsibility against loss or damage to the extent and in effect the manner customary for companies engaged in the same or similar business and similarly situated.
(b) The real property listed on Schedule 4.08(b) (the date hereof“Leased Real Property”) constitutes a complete and correct list of all of the real property leased, subleased, licensed, or otherwise used in any material respect, pursuant to other similar agreements or arrangements, by the Company and its Subsidiaries and that significantly relate to the business and operations of the Company and its Subsidiaries other than the Owned Real Property. Schedule 4.08(b) also sets forth a complete and correct list of all leases, subleases, licenses or other rental arrangements pursuant to which the Company or its Subsidiaries holds any Leased Real Property (individually, a “Lease” and collectively, the “Leases”). To the extent in the Company’s possession, the Company has delivered or made available to Buyer accurate and complete copies of each of the Leases or, to the Company’s Knowledge, has provided on Schedule 4.08(b), an accurate and complete description of the material terms of all unwritten Leases and any other Leases that Company has not delivered or made available to Buyer. None of the Leases referenced in the preceding sentence have been modified, assigned, changed, supplemented, amended, or mortgaged in any material respect, except for to the failure extent that such modifications or other changes are disclosed on Schedule 4.08(b) or disclosed by the copies of the Leases delivered or made available to Buyer. With respect to each Lease, and except as otherwise specified on Schedule 4.08(b):
(i) to the Company’s Knowledge, such Lease is valid and is in full force and effect, subject to the application of any bankruptcy or creditors’ rights Laws and, if applicable, proper authorization and execution of such Lease by the other party thereto;
(ii) none of the Leased Real Property has been subleased, licensed, assigned or otherwise transferred or conveyed by the Company or its Subsidiaries, and to the Company’s Knowledge, there are no Liens that affect the Leased Real Property as a result of the acts or omissions 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 other litigation is pending or, than Permitted Liens;
(iii) to the knowledge of SellerCompany’s Knowledge, threatened which would preclude or impair neither the use Company nor its Subsidiaries has received any written notice from any Government Body that the use, occupancy, and operations of any such Leased Real Property by the Company or any applicable Subsidiary is not in compliance with all applicable Laws and Permits; or
(iv) to the Company’s Knowledge, neither the Company nor its Subsidiaries has received from any counterparty thereto or sent to any counterparty thereto written notice of any material default or alleged default in the performance of any obligation to be performed or paid under any Lease.
(c) The real property listed on Schedule 4.08(c) (the “Owned Real Property”) constitutes all of the real property (including, without limitation, the Company ▇▇▇▇▇) owned by the Company and its Subsidiaries for Subsidiaries. With respect to each parcel of Owned Real Property, and except as otherwise specified on Schedule 4.08(c):
(i) the purposes for which it is currently used or proposed identified owner of the Owned Real Property listed on Schedule 4.08(c) owns fee simple title to be used the parcel of real property, free and clear of any matters affecting title to such real property as of the date hereofClosing Date, except for Permitted Liens, and, to the Company’s Knowledge, there are no outstanding options, rights of first offer or rights of first refusal to purchase the Owned Real Property or any portion thereof or interest therein;
(ii) to the Company’s Knowledge, each Owned Real Property currently has and at Closing will have all utilities necessary or required for the Company or its Subsidiaries current and ordinary use, occupancy and operations at such Owned Real Property and means of ingress and egress to and from public highways, either direct or by permanent and irrevocable rights over and across private roads;
(iii) to the Company’s Knowledge, neither the Company nor its Subsidiaries has received written notice from any Governmental Body that the Owned Real Property or the use and operation thereof, is in violation of any applicable Laws or Permits (including, but not limited to, those relating to building and zoning, or disabled or partially disabled Persons). To the Company’s Knowledge, there are presently and validly in effect all Permits for the use, occupancy and operation of the Owned Real Property as it is presently being operated; and
(iv) except for Permitted Liens, none of the Owned Real Property is subject to any other leases, subleases, licenses, or other rental arrangements, and the Company or its Subsidiaries have not received written notice of any pending or proposed condemnation or eminent domain proceedings affecting the Owned Real Property.
(d) For any salt water disposal ▇▇▇▇▇ (together, the “Company ▇▇▇▇▇”) owned by the Company and its Subsidiaries, no Person other than the Company or its Subsidiaries has the right to possession of the Company ▇▇▇▇▇ and of any saltwater or Frac Fluids contained therein. To the Company’s Knowledge, the Company ▇▇▇▇▇ were constructed in accordance with applicable Laws and standards of workmanship customary in the industry and, to the Company’s Knowledge, are free from any known or latent material defects except for ordinary wear and tear and as disclosed in Schedule 4.08(d).
(e) To the Company’s Knowledge, the land use rights related to the Company ▇▇▇▇▇ are valid, existing and in full force and effect, and provide the Company with sufficient right to conduct its business as currently conducted and to own and operate the Company ▇▇▇▇▇ as currently conducted. To the Company’s Knowledge, there are no eminent domain or condemnation proceedings pending or threatened affecting any portion of such land use rights related to the Company ▇▇▇▇▇. Except as set forth on Schedule 4.08(e), to the Company’s Knowledge, neither the Company nor its Subsidiaries has received written notice of any default or event (with or without notice, lapse of time or both) that would result in the termination, material impairment or limitation of any such land use right related to the Company ▇▇▇▇▇. To the Company’s Knowledge, except as indicated on Schedule 4.08(e), no consent from the grantors of any land use rights related to the Company ▇▇▇▇▇ is required in connection with the transactions contemplated herein by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Heckmann Corp)
Properties. (a) Section 3.15 Parent or one of its Subsidiaries has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its real properties and tangible assets that are necessary for Parent and its Subsidiaries to conduct their respective businesses as currently conducted, free and clear of all Liens other than (i) 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, (ii) mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business 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, materially impair the continued ownership, use and operation of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by assets to which they relate in the Company or any Subsidiary as business of the date hereof Parent as currently conducted (the “Real PropertyPermitted Liens”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, 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 (ireasonable wear and tear excepted).
(b) each material lease Each of Real PropertyParent and its Subsidiaries has complied with the terms of all leases to which it is a party, together with and all amendments such leases are in full force and modifications thereto (eacheffect, a “Lease”) is except for any such noncompliance or failure to be in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 havethat, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. The Company Each of Parent and its Subsidiaries have adequate rights of ingress enjoys peaceful and egress and adequate electric, light, telephone and water utilities with respect to undisturbed possession under 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 hereofsuch leases, except for the any such failure of the Company or its Subsidiaries to have such rights as would not constitutedo so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect. Except as would not have, individually .
(c) Section 4.18(c) of the Parent Disclosure Letter sets forth a true and complete list of (i) all real property owned by Parent or in the aggregate, a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge any of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries and (ii) all real property leased for the purposes for benefit of Parent or any of its Subsidiaries.
(d) This Section 4.18 does not relate to Intellectual Property, which it is currently used or proposed to be used as the subject of the date hereofSection 4.19.
Appears in 1 contract
Sources: Business Combination Agreement (Catalyst Biosciences, Inc.)
Properties. (a) Section 3.15 The Company has good and valid title to, or in the case of leased property and leased tangible assets, a valid leasehold interest in, all of its real properties and tangible assets that are necessary for the Company to conduct its business as currently conducted, free and clear of all Liens other than (i) 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, (ii) mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ Liens arising in the ordinary course of business 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, materially impair the continued ownership, use and operation of the Disclosure Schedule correctly lists each parcel assets to which they relate in the business of real property leased or subleased by the Company or any Subsidiary as of the date hereof currently conducted (the “Real PropertyPermitted Liens”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: Effect on the Company, the tangible personal property currently used in the operation of the business of the Company is in good working order (ireasonable wear and tear excepted).
(b) each material lease The Company has complied with the terms of Real Propertyall leases to which it is a party, together with and all amendments such leases are in full force and modifications thereto (eacheffect, a “Lease”) is except for any such noncompliance or failure to be in full force and effect in accordance with its terms; (ii) 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 are in the routine process of payment on the date hereof or are 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 material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 havethat, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. The Company enjoys peaceful and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to undisturbed possession under 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 hereofsuch leases, except for the any such failure of the Company or its Subsidiaries to have such rights as would not constitutedo so that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect. Except as would not have, individually or in .
(c) Section 4.18(c) of the aggregate, Company Disclosure Letter sets forth a Material Adverse Effect, no condemnation proceeding or other litigation is pending or, to the knowledge true and complete list of Seller, threatened which would preclude or impair the use of any such Real Property (i) all real property owned by the Company and its Subsidiaries (ii) all real property leased for the purposes for which it is currently used or proposed to be used as benefit of the date hereofCompany.
(d) This Section 4.18 does not relate to intellectual property, which is the subject of Section 4.19.
Appears in 1 contract
Properties. (a) Section 3.15 As of the Disclosure date of the First Amendment Effective Date, Schedule correctly lists 3.05 sets forth the address of each parcel of real property that is owned by or leased to any Loan Party. Each of such leases and subleases is valid and enforceable in accordance with its terms and is in full force and effect, and no default by any party to any such lease or subleased sublease exists (after giving effect to any applicable notice requirement or grace period) 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 holding, injunction, decision or judgment has been rendered by any 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 Subsidiary as of the date hereof its Subsidiaries (the “Real Borrower Intellectual Property”)) in any respect that would reasonably be expected to have a Material Adverse Effect. The To the Loan Parties’ knowledge, no pending claim has been asserted or threatened in writing by any Person challenging the use by the Company and or any of its Subsidiaries do not own of any Real Borrower Intellectual Property or the validity of any Borrower Intellectual Property, except in fee simple.
(b) Except each case as would not reasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect: (i) each material lease . To the Loan Parties’ knowledge, the use of Real Property, together with all amendments and modifications thereto (each, a “Lease”) is in full force and effect in accordance with any Borrower Intellectual Property by the Company or its terms; (ii) 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 Subsidiaries does not been billed by landlords or are in the routine process of payment infringe on the date hereof or are being disputed); (iii) in each case the lessee or an affiliate has been in peaceable possession since the commencement rights of the original term of such Lease and no material waiver, indulgence or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would 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 Person in a manner that would not have, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to taken all Real Property for operation of the business of the Company and its Subsidiaries commercially reasonable actions that in the ordinary course and consistent exercise of their reasonable business judgment should be taken to protect the Borrower Intellectual Property, including Borrower Intellectual Property that is confidential in all material respects with past practice and with the business plans of the Company and its Subsidiaries as in effect on the date hereofnature, except for where the failure of the Company or its Subsidiaries to do so would not reasonably be expected 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 1 contract
Properties. (a) Section 3.15 of the Disclosure Schedule correctly lists each parcel of real property leased or subleased by the Company or any Subsidiary as of the date hereof (the “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simple.
(b) Except as has not been, and would not reasonably be expected to havebe, material to the Company and its Subsidiaries, taken as a whole, the Company and its Subsidiaries have good title to, or valid leasehold or subleasehold interests in, all properties, including Real Property, and assets reflected on the Company Balance Sheet or acquired after the Balance Sheet Date, except as have been disposed of since the Balance Sheet Date in the ordinary course of business.
(b) Neither the Company nor any of its Subsidiaries owns any real property. Section 4.14(b) of the Company Disclosure Schedule sets forth a true, correct and complete (in all material respects) list, as of the date of this Agreement, of all agreements, leases, subleases, licenses, sublicenses, concessions, occupancy agreements and other contracts (including any option to purchase contained therein together with all material amendments, supplements, extensions, exhibits, schedules, renewals, letter agreements, waivers, guaranties and other modifications thereof or thereto) pursuant to which the Company or any of its Subsidiaries leases as lessee, sublessee, license or tenant, or otherwise uses or occupies or has the right to use or occupy, any Real Property (each, a “Real Property Lease”). The Company has made available to Parent a true and complete copy of each such Real Property Lease. With respect to each Real Property Lease, such Real Property Lease is in full force and effect and is a valid and binding agreement enforceable against the Company or any of the Company Subsidiaries party thereto and, to the Company’s Knowledge, any other party thereto in accordance with its terms, except as such enforceability may be limited by the Enforceability Exceptions, and except where the failure of such Real Property Lease to be valid, binding, enforceable or in full force and effect, has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Except as has not had, and would not reasonably be expected to have a Company Material Adverse Effect: (i) each material lease , neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any other party to a Real PropertyProperty Lease, together with all amendments and modifications thereto (each, a “Lease”) is in full force violation of any provision of any Real Property Lease and effect in accordance with there is no default or breach, by the Company or any of its terms; (ii) all material amounts due and payable Subsidiaries, as rent due under each such Lease have been paid in full (except that routine reconciliations of typical lease charges such as taxesapplicable, common area maintenance paymentsor, insurance and to the like may still be owed for prior years if such amounts have not been billed by landlords or are Company’s Knowledge, any other party, in the routine process timely performance of payment on the date hereof any obligation to be performed or are being disputed); (iii) in each case the lessee paid under any Real Property Lease or an affiliate has been in peaceable possession since the commencement of the original term of such Lease any other material provision thereof, and no material waiver, indulgence event or postponement of the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there circumstance exists no material default or event, occurrence, condition or act which, with the giving of notice delivery or notice, the lapse passage of time or both, would become constitute a default breach or default, or permit the termination, modification or acceleration of rent under any such Lease allowing Real Property Lease. No party, other than the landlord Company or any of its Subsidiaries, has any option or right to terminate any Real Property Lease other than as expressly set forth in such Real Property Lease. No option has been exercised under any Real Property Lease, except options whose exercise has been evidenced by a written document, a true, complete and accurate copy of which has been delivered to the Company with the corresponding Real Property Lease. Each Leased Real Property has access to public roads and to all utilities used in the operation of the ordinary course of business. No Leased Real Property is subject to any material defenses, setoffs, or counterclaims, and no material obligations of any landlords, licensors, or sublandlords thereunder are delinquent. All brokerage commissions and other compensation and fees due and payable by the Company or any of its Subsidiaries with respect to the Leased Real Property have been paid in full. Neither the Company nor or any Subsidiary orof its Subsidiaries have assigned, subleased, transferred licensed, or otherwise granted to anyone any interest in the Leased Real Property, or the right to use or occupy the Leased Real Property or any portion thereof. The Company’s or any of its Subsidiaries’ possession and quiet enjoyment of the Leased Real Property have not been disturbed, and there are no disputes ongoing with respect to any Real Property Lease. Since January 1, 2023, neither the Company or any of its Subsidiaries have received any notice of a material violation of any applicable Law, or of any material covenant, condition, easement or restriction affecting the Leased Real Property or relating to its use or occupancy, and, to the knowledge of Seller, any other party thereto, has violated extent the Company or any of the terms its Subsidiaries received or conditions under was made aware of any such notice prior to January 1, 2023, such violation has been remedied and is no longer in effect. Except as set forth on Section 4.14(b) of the Company Disclosure Schedule, there is no ongoing construction work being performed by the Company or any of its Subsidiaries, or the counterparty to any Real Property Lease, except for at any such violations which would not have, individually or in the aggregate, a Material Adverse EffectLeased Real Property. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and water utilities with respect to all Each Leased Real Property is in good condition and repair in all material respects, and the Leased Real Property, in its current condition, is suitable in all material respects for the current operation of the business of the Company and any of 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereofSubsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Diamond Hill Investment Group Inc)
Properties. (a) Section 3.15 of Except in any such case as is not, individually or in the Disclosure Schedule correctly lists each parcel of real property leased or subleased by aggregate, reasonably likely to have a Material Adverse Effect, the Company or any Subsidiary as one of the date hereof 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 “Real Property”). The Company and its Subsidiaries do not own any Real Property in fee simpleordinary 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 and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: , (i) each material lease of Real PropertyLease is valid, together with all amendments binding and modifications thereto (each, a “Lease”) is in full force and effect in accordance with its termseffect; and (ii) all to the knowledge of the Company, no termination event or condition or uncured default of a 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 are in the routine process of payment nature on the date hereof or are being disputed); (iii) part of the Company or, if applicable, any of the Subsidiaries exists under any Lease. The Company and each of the Subsidiaries has a good and valid leasehold interest in each case parcel of real property leased by it free and clear of all Liens, except for Liens which do not interfere with the lessee use or an affiliate has been in peaceable possession since materially affect the commencement value of the original term of such Lease and no material waiver, indulgence or postponement of property subject to the lessee’s obligations thereunder has been granted by the lessor; and (iv) to Seller’s knowledge, there exists no material default or event, occurrence, condition or act which, with the giving of notice or the lapse of time or both, would become a default under such Lease allowing the landlord to terminate such Lease. Neither the Company nor any Subsidiary orof the Subsidiaries has received written notice of any pending, and to the knowledge of Sellerthe Company there is no threatened, condemnation or similar proceeding with respect to any other party thereto, has violated property leased pursuant to any of the terms real property leases.
(c) The Company and the Subsidiaries have good, valid and marketable title to their owned assets and properties, or conditions under any such Leasein the case of assets and properties they lease, except for any such violations which license, or have other rights in, good and valid rights by lease, license or other agreement to use, all material assets and properties (in each case, tangible and intangible) necessary to permit the Company and the Subsidiaries to conduct their respective businesses as currently conducted, except, in all cases, as would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The Company and its Subsidiaries have adequate rights of ingress and egress and adequate electric, light, telephone and 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 other litigation is pending or, to the knowledge of Seller, threatened which would preclude or impair the use of any such Real Property by the Company and its Subsidiaries for the purposes for which it is currently used or proposed to be used as of the date hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (Jacksonville Bancorp Inc /Fl/)