Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances. (b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances. (c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein. (d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder. (e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business. (f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property. (g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Implementation Agreement (Arch Coal Inc), Implementation Agreement (Peabody Energy Corp)
Real Property. (a) Section 4.7(aSchedule 3.08(a) of the Peabody Disclosure Letter sets forth a correct true and complete list list, as of the date hereof hereof, of the address of each parcel of real property owned in fee simple title (ior the equivalent thereof in the respective jurisdiction) all Peabody by the Contributed Companies (collectively, the “Owned Real Property”) and the name of the record owner thereof. To the Knowledge of each Contributor, no Contributed Company or Subsidiary thereof is obligated or bound by any options, obligations or rights of first refusal or contractual rights to sell, lease or acquire any real property. To the Knowledge of each Contributor, there are no material defaults, violations or breaches by such Contributor under any non-monetary Liens recorded against the Owned Real Property and which constitute Permitted Liens under subsection (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(aviii) of such definition. To the Peabody Disclosure Letter also identifies Knowledge of each Contributor, each Owned Real Property has, in all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliatesmaterial respects, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased permanent vehicular access to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesa public road.
(b) Peabody or Schedule 3.08(b) sets forth a controlled Affiliate of Peabodytrue and complete list, as applicableof the date hereof, has of the address of each parcel of real property (ior space thereon) good and indefeasible fee title to all Peabody Owned leased, licensed, subleased or occupied by the Contributed Companies as lessee or occupant (collectively, the “Ground Leased Real Property, (ii”) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case brief description of each ground lease, lease, license, sublease or similar occupancy Contract (collectively, the “Ground Leases”) showing the title of clauses (i)the Ground Lease, (ii) date of the Ground Lease, the parties thereto, and (iii)including a description of any amendments, free supplements and clear separate agreements, that comprise such lease, license, sublease or similar occupancy agreement. To the Knowledge of all Encumbrances (including Royalties)each Contributor, other than Permitted Encumbrances.
(c) There there are no outstanding optionsmaterial defaults, rights violations or breaches by such Contributor under any non-monetary Liens recorded against the Ground Leased Real Property and which constitute Permitted Liens under subsection (viii) of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) such definition. Each of the Peabody Leases Ground Lease is in full force and effect and constitutes effect, is the legal, valid and legally binding obligations obligation of Peabody the applicable Contributed Company or its Affiliates that are parties thereto andSubsidiary thereof and is enforceable against the applicable Contributed Company or Subsidiary thereof. No Ground Lease has been terminated or cancelled, and leasehold interest of the applicable Contributed Company or Subsidiary thereof in each Ground Lease has not been assigned or encumbered, except for Permitted Liens. No Contributed Company nor Subsidiary, and to the Knowledge of Peabodyeach Contributor, no other party to a Ground Lease is in default under such Ground Lease. No notice of default under such Ground Lease has been sent or received by the other parties thereto, enforceable against Peabody Contributed Companies or such Affiliates and, to their Subsidiaries which is not currently resolved. To the Knowledge of Peabodyeach Contributor, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) condition exists which, with but for the giving of notice or lapse the passage of time time, or both, would constitute a breach or default thereunderdefault, by any Contributed Company or Subsidiary thereof or any other party pursuant to any Ground Lease. To the Knowledge of each Contributor, each Ground Leased Real Property has, in all material respects, permanent vehicular access to a public road.
(c) True, complete and correct copies of all Ground Leases have heretofore been delivered by the Contributors, on behalf of the Contributed Companies and Subsidiaries thereof, to PEGC I OP.
(d) Other than as set forth on Schedule 3.08(b), as of the date hereof, no Contributed Company or Subsidiary thereof is a party to any lease, license, sublease or similar occupancy Contract under which any of the Contributed Companies or Subsidiary thereof is lessee, sublessee or licensee of, or holds, uses or operates, any real property owned by any third Person.
(e) Except for To the Peabody PropertiesKnowledge of each Contributor, neither Peabody nor no written notice from any Governmental Entity has been received by any Contributor or Contributed Company or Subsidiary thereof concerning the possible imposition of its Affiliates owns or leases any real property used or held for use primarily material special assessments on the Real Property. To the Knowledge of each Contributor, true and complete copies, in or related primarily to or necessary for the operation or conduct all material respects, of the Peabody Business most recent title commitments, surveys, appraisals and policies of title insurance or has any options to acquire any fee interest the equivalent in the possession or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct control of the Peabody BusinessContributed Companies or Subsidiaries thereof with respect to the Real Property have been made available to PEGC I OP. To the Knowledge of each Contributor, there are no encroachments relating to any Real Property, which are reasonably likely to result in a material adverse impact on the use and operation of any such Real Property.
(f) There are no pending orSchedule 3.08(f) sets forth a true, to correct and complete rent roll as of the Knowledge of Peabodydate hereof reflecting each lease, threatened condemnationsublease, eminent domain license or similar proceedings affecting occupancy Contract with any Person under which a Contributed Company or Subsidiary thereof is a lessor or sublessor of, or makes available for use to any Person (other than a Contributed Company or Subsidiary thereof), any Real Property (collectively, the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property“Tenant Leases”).
(g) All utility easementsWith respect to each Material Lease set forth on Schedule 11.04(b)(I) and to the Knowledge of each Contributor with respect to each other Tenant Lease, rights of access and other easements except as set forth on Schedule 3.08(g):
(i) each Tenant Lease is in full force and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, effect and there are no encroachments upon material defaults thereunder by Contributor, nor to the Peabody Properties and Knowledge of Contributor, by the other party thereto, beyond any applicable notice or cure period;
(ii) no improvements to rent (other than security deposits or first month’s rent) has been paid more than one (1) month in advance of its due date;
(iii) no tenant under any Peabody Properties encroach onto Tenant Lease has any adjacent propertyright or option for additional space in the Improvements, except for any rights or options expressly set forth in such encroachments Tenant Lease;
(iv) no tenant has assigned its Tenant Lease or sublet (in any material respect) all or any portion of the premises demised thereby, except as have not had and would not reasonably may be expected provided in such Tenant Lease or with the consent of the lessor thereunder;
(v) no tenant under any Tenant Lease has a right or option pursuant to have, individually such Tenant Lease or otherwise to purchase all or any part of the leased premises or the building of which the leased premises are a part; except in the aggregatecase of Material Leases as expressly set forth in such Material Lease; and
(vi) true, a material adverse effect complete and correct copies of all Material Leases have heretofore been delivered by the Contributors, on a particular item behalf of real property. The improvements the Contributed Companies and Subsidiaries thereof, to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesPEGC I OP.
Appears in 2 contracts
Sources: Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.), Contribution Agreement (Phillips Edison Grocery Center Reit I, Inc.)
Real Property. (a) Section 4.7(a) Hortonworks and each of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) Subsidiaries have good and valid title to, or a valid leasehold interest in, all the real properties which it purports to own or lease, including all the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included real properties reflected in the Peabody Properties, Hortonworks Balance Sheet. All real properties reflected in the case of each of clauses (i), (ii) and (iii), Hortonworks Balance Sheet are held free and clear of all Encumbrances (including Royalties)Liens, except for Liens reflected on the Hortonworks Balance Sheet and Liens for current Taxes not yet due and for which adequate reserves have been established in accordance with GAAP and other than Permitted Encumbrances.
(c) There are no outstanding optionsLiens that do not materially impair the use of the property subject thereto. All real property leases, rights of first offer subleases, licenses or rights of first refusal other occupancy agreements to purchase any Peabody Property which Hortonworks or any portion of or any interest therein.
its Subsidiaries is a party (dcollectively, the “Hortonworks Real Property Leases”) Each are in full force and effect, except where the failure of the Peabody such Hortonworks Real Property Leases is to be in full force and effect and constitutes would not be reasonably likely to result in a Hortonworks Material Adverse Effect. There is no default by Hortonworks or any of its Subsidiaries under any of the legalHortonworks Real Property Leases, valid and binding obligations of Peabody or its Affiliates that are parties thereto andor, to the Knowledge knowledge of PeabodyHortonworks, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, defaults by any other party thereto, is except such defaults as have been waived in breach of any of its respective obligations thereunder, and no event has occurred (including writing or cured or such defaults that in the failure to obtain any consent) which, with notice or lapse of time or both, aggregate would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may not be reasonably be expected likely to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation a Hortonworks Material Adverse Effect. Section 3.11 of the Peabody Business Hortonworks Disclosure Letter contains a complete and accurate list of all Hortonworks Real Property Leases providing for the payment of annual rent in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregateexcess of $1 million (each, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (“Hortonworks Material Real Property Lease”) and the current uses thereof) do not lists for each such Hortonworks Material Real Property Lease (i) violate set-backthe address of the property to which such Hortonworks Material Real Property Lease pertains, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesannual rent and (iii) the purpose of the facility to which such Hortonworks Material Real Property Lease pertains.
Appears in 2 contracts
Sources: Merger Agreement (Hortonworks, Inc.), Merger Agreement (Cloudera, Inc.)
Real Property. (a) Section 4.7(a4.9(a) of the Peabody Disclosure Letter sets forth a correct and complete list as Schedule lists all of the date hereof real property and interests therein owned by any Acquired Entity or included in the Foreign Assets (with all easements and other rights appurtenant to such property, the “Owned Real Property”) and, relative to each such property or interest, the Acquired Entity that owns it. The applicable Acquired Entity or Retained Subsidiary holds fee simple title to the applicable parcel of (i) all Peabody Owned Real Property, (ii) all Peabody Leases free and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) clear of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliatesany Liens, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than except Permitted EncumbrancesLiens.
(b) Peabody Section 4.9(b) of the Disclosure Schedule lists all of the real property and interests therein leased or a controlled Affiliate subleased by any Acquired Entity or by the Retained Subsidiaries with respect to the Foreign Assets (the “Leased Real Property”). For each item of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Leased Real Property, (iiSection 4.9(b) good and valid title of the Disclosure Schedule lists the lease or sublease, pursuant to which the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included applicable Acquired Entity holds a possessory interest in the Peabody PropertiesLeased Real Property and all material amendments, in the case renewals, or extensions thereto (each, a “Lease”). The leasehold interest of an Acquired Entity with respect to each item of clauses (i), (ii) and (iii), Leased Real Property is held free and clear of all Encumbrances (including Royalties)any Liens, other than except Permitted EncumbrancesLiens. No Acquired Entity is a sublessor of, and has not assigned any Lease covering, any portion of the Leased Real Property.
(c) There are no outstanding optionsThe Owned Real Property and the Leased Real Property (collectively, rights the “Real Property”) constitute all interests in real property currently owned or leased in connection with the Acquired Business. No Acquired Entity has received written notice that the location, construction, occupancy, operation or use of first offer the buildings located on the Real Property violates any restrictive covenant or rights of first refusal to purchase any Peabody deed restriction recorded against such Real Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent propertyLaws, except for such encroachments as have not had and violations which would not reasonably be expected to have, individually or in the aggregate, have a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesMaterial Adverse Effect.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Snap on Inc), Stock and Asset Purchase Agreement (Proquest Co)
Real Property. (a) Section 4.7(a) Neither the Company nor any of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to subsidiaries owns any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody Section 4.10 of the Company Disclosure Schedule sets forth all leases, subleases and other agreements (the “Real Property Leases”) under which the Company or a controlled Affiliate any of Peabodyits subsidiaries uses, as applicableoccupies or sublets or has the right to use, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included occupy or sublet now or in the Peabody Propertiesfuture, any real property. The Company has heretofore delivered or made available to Parent true, correct and complete copies of all Real Property Leases (and all modifications, amendments and supplements thereto and all side letters to which the Company or any of its subsidiaries is a party affecting the obligations of any party thereunder). Each Real Property Lease constitutes the valid and legally binding obligation of the Company or its subsidiaries, enforceable in the case accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of each of clauses (igeneral applicability relating to or affecting creditors’ rights or by general equity principles), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect effect. All rent and constitutes other sums and charges payable by the legalCompany and its subsidiaries as tenants, valid and binding obligations or payable to the Company or any of Peabody its subsidiaries as sublessor, under each Real Property Lease are current, no termination event or its Affiliates that are parties thereto andcondition or uncured default of a material nature on the part of the Company or any such subsidiary of the Company or, to the Knowledge of PeabodyCompany’s knowledge, the other parties thereto, enforceable against Peabody landlord or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties theretosublessee, as the case may be, exists under any Real Property Lease. Each of the Company and its subsidiaries has a good and valid leasehold interest in each parcel of real property leased by it free and clear of all Liens, except (i) nor, to Liens for Taxes and general and special assessments not in default and payable without penalty and material interest; (ii) Liens on the Knowledge of Peabody, any other party thereto, is landlord’s interest in breach of the facility being leased which are not currently interfering with the Company’s or any of its respective obligations thereundersubsidiaries’ use and enjoyment of such real property; and (iii) other liens, mortgages, pledges, encumbrances and no event security interests which do not materially interfere with the Company’s or any of its subsidiaries’ use and enjoyment of such real property or materially detract from or diminish the value thereof.
(c) No party to any Real Property Lease has occurred (including given notice to the failure Company or any of its subsidiaries of or made a claim against the Company or any of its subsidiaries to obtain the Company or any consent) which, of its subsidiaries with notice or lapse of time or both, would constitute a respect to any material breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (thereunder and the current uses thereof) do not (i) violate set-back, building or side lines, or Company has no knowledge of any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiessuch claim.
Appears in 2 contracts
Sources: Merger Agreement (Synopsys Inc), Merger Agreement (Numerical Technologies Inc)
Real Property. (a) Section 4.7(a) Neither of the Peabody Disclosure Letter Sellers owns any real property. Schedule 4.8 sets forth a correct and complete list list, as of the date hereof of (i) all Peabody Owned Real Propertyhereof, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as address of each parcel of real property leased, subleased, licensed or otherwise occupied by either of the date hereof by Sellers, including all buildings and other businesses of Peabody structures or its Affiliates improvements located thereon and describes the nature of such use by such other businesses of Peabody or its Affiliatesall easements, licenses, rights, and such use does not interfere appurtenances of the Sellers in connection therewith (the “Leased Facilities”). The Leased Facilities constitute all of the real property used or required by the Seller in connection with the operation of the Peabody BusinessBusiness as currently conducted. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has The Seller has: (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and a valid title to the leasehold estates interest in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Leased Facilities, free and clear of all Encumbrances Liens except for the Permitted Liens; (ii) made available to the Buyer true and complete copies of each lease, sublease, license or occupancy agreement underlying the Leased Facilities, including Royaltiesall amendments, modifications, renewals and extensions thereto or assignments thereof (each a “Lease” and collectively, the “Leases”), as set forth on Schedule 4.8; (iii) complied in all material respects with the terms of all Leases to which it is a party; (iv) peaceful and undisturbed possession of the Leased Facilities in all material respects; (v) not assigned, subleased, licensed or granted any Person the right to use or occupy any of the Leased Facilities or any portion thereof; and (vi) not collaterally assigned or granted any other security interest in the Leases or any interest thereunder. Other than Permitted Encumbrances.
(c) There the rights of Buyer under this Agreement, there are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property lease the Leased Facilities or any portion thereof. No option, extension or renewal has been exercised under any Leases except options, extensions or renewals whose exercise has been evidenced by a written document, a true and complete copy of or any interest thereinwhich has been made available to Buyer with the corresponding Lease.
(db) Each All Leased Facilities are in reasonably good repair and operating condition (subject to normal wear and tear). To the Seller’s Knowledge, there are no material (i) defects in, (ii) mechanical failures of or (iii) damages to the Leased Facilities. The Seller has not received any notice of, and to the Seller’s Knowledge there are no, condemnation, expropriation, eminent domain or similar proceedings or other adverse claims or actions affecting or threatened against any of the Peabody Leased Facilities. All of the Leases is are in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective termsterms and conditions, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors’ rights, or by general equity principles, including principles of commercial reasonableness, good faith and fair dealing. No Peabody Lease The Seller has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofnot received written notice of, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of PeabodySeller’s Knowledge, any other party thereto, is in breach of any of its respective obligations thereunder, and no event or circumstance has occurred (including the failure to obtain any consent) which, that with notice or lapse of time or both, both would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregateconstitute, a material adverse effect default or breach under any of the Leases. To the Seller’s Knowledge, the Leases are binding on a particular item the lessors thereunder, and such lessors have complied in all material respects with the terms of real propertytheir respective Leases. The improvements to execution, delivery, performance and consummation by the Peabody Properties (and Seller of the current uses thereof) transactions contemplated by this Agreement do not (i) and will not violate set-back, building or side lines, or the terms of any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on Lease in any easements located on the Peabody Propertiesmaterial respect.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Park Ohio Holdings Corp), Asset Purchase Agreement (Lawson Products Inc/New/De/)
Real Property. (a) Section 4.7(a5.7(a) of the Peabody Arch Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Arch Owned Real Property, (ii) all Peabody Arch Leases and (iii) all Mining Rights included in the Peabody Arch Properties. Section 4.7(a5.7(a) of the Peabody Arch Disclosure Letter also identifies all Peabody Arch Properties that also are used as of the date hereof by other businesses of Peabody Arch or its Affiliates and describes the nature of such use by such other businesses of Peabody Arch or its Affiliates, and such use does not interfere with the operation of the Peabody Arch Business. No Peabody Arch Property is leased or subleased to any third party, and Peabody Arch has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody Arch or a controlled Affiliate of PeabodyArch, as applicable, has (i) good and indefeasible fee title to all Peabody Arch Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Arch Leases and (iii) good and valid title to all Mining Rights included in the Peabody Arch Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Arch Property or any portion of or any interest therein.
(d) Each of the Peabody Arch Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody Arch or its Affiliates that are parties thereto and, to the Knowledge of PeabodyArch, the other parties thereto, enforceable against Peabody Arch or such Affiliates and, to the Knowledge of PeabodyArch, the other parties thereto, in accordance with their respective terms. No Peabody Arch Lease has been amended, modified or supplemented. No party to any Peabody Arch Lease has repudiated any provision thereof, and neither Peabody Arch (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of PeabodyArch, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Arch Properties, neither Peabody Arch nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Arch Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Arch Business.
(f) There are no pending or, to the Knowledge of PeabodyArch, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Arch Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Arch Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Arch Properties are legally enforceable to permit the operation of the Peabody Arch Business in substantially the manner in which the Peabody Arch Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Arch Properties and no improvements to any Peabody Arch Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Arch Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Arch Properties.
Appears in 2 contracts
Sources: Implementation Agreement (Arch Coal Inc), Implementation Agreement (Peabody Energy Corp)
Real Property. (a) Section 4.7(a3.10(a) of the Peabody Company Disclosure Letter Schedule sets forth a correct and complete list as of the date hereof addresses of all real property (i) all Peabody owned by the Company (the “Owned Real Property”), or (ii) leased, subleased or licensed by, or for which a right to use or occupy has been granted to, the Company (the “Leased Real Property,” and together with the Owned Real Property, the “Real Property”). Section 3.10(a) of the Company Disclosure Schedule also identifies (i) with respect to each Owned Real Property, all Persons that use or occupy such Owned Real Property, and (ii) all Peabody Leases with respect to each Leased Real Property, each lease, sublease, license or other Contractual Obligation under which such Leased Real Property is occupied or used including the date of and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) legal name of each of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by parties to such lease, sublease, license or other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its AffiliatesContractual Obligation, and such use does not interfere with each amendment, modification or supplement thereto (the operation of the Peabody Business. No Peabody “Real Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted EncumbrancesLeases”).
(b) Peabody or a controlled Affiliate Except as set forth in Section 3.10(b) of Peabodythe Company Disclosure Schedule, as applicable, the Company has (i) good and indefeasible marketable fee simple title in and to all Peabody the Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There Except as set forth on Section 3.10(c) of the Company Disclosure Schedule, there are no outstanding optionswritten or oral leases, rights of first offer subleases, licenses, concessions, occupancy agreements or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party Contractual Obligations granting to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as other Person the case may be) nor, to the Knowledge right of Peabody, any other party thereto, is in breach use or occupancy of any of its respective obligations thereunder, the Owned Real Property and there is no event has occurred (including the failure to obtain any consent) which, with notice or lapse Person in possession of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(gd) All utility easementsThe Company has delivered to the Buyer accurate and complete copies of the Real Property Leases, rights of access in each case as amended or otherwise modified and in effect, together with extension notices and other easements material correspondence, lease summaries, notices or memoranda of lease, estoppel certificates and similar rights serving subordination, non-disturbance and attornment agreements related thereto.
(e) No eminent domain or condemnation Action is pending or, to the Peabody Properties are legally enforceable to permit Company’s Knowledge, threatened, that would preclude or materially impair the use of any Real Property. To the Knowledge of the Company, the Company’s current use of the Real Property does not violate in any material respect any restrictive covenant of record that affects any of the Real Property.
(f) Each Facility is supplied with utilities and other services necessary for the operation of such Facility as the Peabody Business in substantially the manner in which the Peabody Business same is currently operated, all of which utilities and other services are provided via public roads or via permanent, irrevocable appurtenant easements benefiting the parcel of Real Property. Other than Permitted EncumbrancesEach parcel of Real Property abuts on, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregatehas direct vehicular access to, a material adverse effect on public road, or has access to a particular item public road via a permanent, irrevocable appurtenant easement benefiting the parcel of real property. The improvements Real Property, in each case, to the Peabody Properties (and extent necessary for the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on conduct of the Peabody PropertiesDesign & Manufacturing Business as currently conducted.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Mercury Computer Systems Inc)
Real Property. (a) Section 4.7(a3.10(a)(i) of the Peabody Seller Disclosure Letter sets forth a correct and complete list as Schedules identifies all of the date hereof real property underlying the Rolling Mill and associated with the Rolling Mill Business (the “Rolling Mill Real Property”), and Section 3.10(a)(ii) of the Seller Disclosure Schedules identifies all real property underlying the Smelter and the Power Plant and the business and operations thereof (i) all Peabody Owned such real property, the “Smelter and Power Plant Real Property” and together with the Rolling Mill Real Property, (ii) all Peabody Leases collectively, the “Real Property”), in each case owned by the Company or any Affiliate thereof, and (iii) all Mining Rights included each sets forth the and acreage of each parcel of the Real Property. Except as set forth in the Peabody Properties. Section 4.7(a3.10(a)(iii) of the Peabody Seller Disclosure Letter also identifies all Peabody Properties that also are used as of Schedules, the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its AffiliatesCompany has good, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good valid and indefeasible fee title to all Peabody Owned to, the Rolling Mill Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), Property free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
. Except as set forth in Section 3.10(a)(iv) of the Seller Disclosure Schedules, neither the Company nor any Affiliate thereof has (ci) There are no outstanding optionsoffered or agreed to sell or grant a leasehold, rights of first offer license or rights of first refusal to purchase any Peabody Property other interest in all or any portion of the Rolling Mill Real Property to any Person, nor granted to any Person a right or option to purchase, right of first refusal or right of first offer to acquire such Rolling Mill Real Property or such interest therein or (ii) has leased, or granted any other possessory or occupancy interest in, the Rolling Mill Real Property to any Person, and no Persons other than the Company and its Affiliates are in possession of any of the Rolling Mill Real Property. There are no material unrecorded restrictions, covenants or other agreements restricting the development, use or occupancy of any portion of the Rolling Mill Real Property which have not been provided to Buyer on or prior to the date hereof. There are no pending or filed Actions or proceedings regarding real property Tax assessments against the Rolling Mill Real Property, nor has Seller, the Company or any interest therein.
Rolling Mill Affiliate (d) Each in respect of the Peabody Leases is Rolling Mill Business) retained any Person to represent Seller, the Company and/or any Rolling Mill Affiliate (in full force respect of the Rolling Mill Business) in connection with any such Actions or proceedings or the filing thereof. Prior to the date hereof, copies of the most recent deeds, surveys and effect and constitutes title reports pertaining to the legalRolling Mill Real Property in the reasonable possession or control of the Company or the Seller or their respective Affiliates, valid and binding obligations of Peabody or its Affiliates that are parties thereto andhave been made available to Buyer, which copies, to the Knowledge of PeabodySeller, the other parties theretoare true, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, complete and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereundercorrect.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Purchase Agreement (Alcoa Corp), Purchase Agreement (Kaiser Aluminum Corp)
Real Property. (a) Section 4.7(a5.19(a) of the Peabody Vistana Disclosure Letter Schedule sets forth a correct and complete list the common address, as of the date hereof hereof, of all Vistana Owned Real Property. The Vistana Entities have good and marketable fee simple title (ior the applicable local equivalent) to all Peabody Vistana Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Propertiessubject to any Permitted Liens. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as As of the date hereof by other businesses hereof, no Vistana Entity has received written notice of Peabody any pending condemnation, expropriation, eminent domain or its Affiliates and describes the nature of such use by such other businesses of Peabody similar Action affecting all or its Affiliates, and such use does not interfere with the operation any material portion of the Peabody BusinessVistana Owned Real Property. No Peabody Property is leased Vistana Entity has leased, licensed, assigned, transferred, conveyed, mortgaged, deeded in trust or subleased to encumbered any third partyinterest in the Vistana Owned Real Property, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesin the ordinary course of business.
(b) Peabody or a controlled Affiliate Section 5.19(b) of Peabodythe Vistana Disclosure Schedule sets forth the common address, as applicableof the date hereof, has (i) good of all Vistana Leased Real Property. The Vistana Entities have a valid and indefeasible fee title to enforceable leasehold estate in all Peabody Owned Vistana Leased Real Property, (ii) good and valid title subject to the leasehold estates in all Peabody Leases Remedies Exception and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than any Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective termsLiens. No Peabody Lease has been amendedVistana Entity, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge knowledge of PeabodyVistana, as of the date hereof, any other party thereto, is in breach of or default under any Contract pursuant to which the Vistana Entities occupy any Vistana Leased Real Property. No Vistana Entity has, as of its respective obligations thereunderthe date hereof, and no event has occurred received any written notice from any lessor of such Vistana Leased Real Property of any breach of or default under any such Contract pursuant to which the Vistana Entities occupy any Vistana Leased Real Property by any Vistana Entity (including the failure to obtain any consent) whichin each case, with or without notice or lapse of time or both), would constitute a which breach or default thereunder.
(e) Except for the Peabody Propertieshas not been cured. No Vistana Entity has subleased, neither Peabody nor licensed, assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily the tenant’s interest in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Vistana Leased Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Real Property. (a) Section 4.7(aSchedule 3.11(a) of the Peabody Disclosure Letter sets forth a correct Schedules lists the street address of each parcel of real property owned by the SLP Subsidiary or included in the Transferred Assets (the “Owned Real Property”). The Sellers or the SLP Subsidiary have good and complete list as of the date hereof of (i) marketable title in fee simple to all Peabody Owned Real Property, (ii) free and clear of all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its AffiliatesEncumbrances, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances. In addition, with respect to each parcel of Owned Real Property,
(i) the Sellers have made available to the Buyer copies of the deeds and other instruments (as recorded) by which the Sellers or the SLP Subsidiary acquired such Owned Real Property interests;
(ii) the Sellers and the SLP Subsidiary have not leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and
(iii) there are no unrecorded or outstanding options, rights of first offer, rights to purchase or use, or rights of first refusal, or other preferential rights to purchase or use such Owned Real Property or any portion thereof or interest therein, or Contract relating to the right to receive any portion of the income or profits from the sale, operation or development thereof, and the Sellers and the SLP Subsidiary do not hold any option and are not subject to any contractual obligation to purchase or otherwise acquire an interest in any real property.
(b) Peabody Schedule 3.11(b) of the Disclosure Schedules lists the street address of each parcel of leased real property leased by the SLP Subsidiary or a controlled Affiliate included in the Transferred Assets (the “Leased Real Property”), the identity of Peabodythe lessor and lessee of each such parcel of Leased Real Property, each lease agreement with respect to such Leased Real Property and each amendment, extension, renewal, assignment and guaranty relating to each lease. The Sellers or the SLP Subsidiary, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) have a good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in estate under each such lease of the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Leased Real Property, free and clear of all Encumbrances (including Royalties)Encumbrances, other than Permitted Encumbrances.
(c) There are no outstanding options, rights and the Sellers or the SLP Subsidiary, as applicable, have the exclusive right to occupy and enjoy peaceful and undisturbed possession of first offer or rights of first refusal to purchase any Peabody all Leased Real Property or any portion of or any interest therein.
(d) Each for the full term of the Peabody Leases is lease thereof. All leases in respect of the Leased Real Property are in full force and effect and constitutes none of the legalSellers or the SLP Subsidiary have received any written notice of a breach of default thereunder. The Sellers have made available to the Buyer true and correct copies of the leases (and all amendments thereto) by which the Sellers and the SLP Subsidiary have acquired such Leased Real Property interests.
(c) The Real Property, valid and binding obligations the improvements, buildings and structures thereon (the “Improvements”), (i) constitute all of Peabody the Real Property used in the operation of the Business, (ii) may continue to be used for the operation of the Business as currently operated by the Sellers and the SLP Subsidiary after the Closing, and (iii) comply with all federal, state, or its Affiliates that are parties thereto andlocal building, to zoning, health, safety, platting, subdivision or other Laws. To the Knowledge of Peabodythe Sellers, all of the Improvements are structurally sound and adequately supported by the soils and foundations thereunder and are free from material defects, any need for material repairs, deferred maintenance and pest infestation or damage. No Improvement encroaches upon any other parties theretoreal property, enforceable against Peabody and there are no encroachments by other buildings or such Affiliates andimprovements onto the Real Property. None of the Improvements are located in a flood hazard area, to or are prior, nonconforming structures under either the applicable zoning regulations or the applicable building codes.
(d) To the Knowledge of Peabodythe Sellers, there are no pending, threatened, or contemplated condemnation, expropriation or other Action (nor is there any basis for any such Action) affecting the Real Property, or any part thereof, or of any assessments made or threatened with respect to the Real Property or any part thereof, or of any sales or other parties theretodisposition of the Real Property, or any part thereof, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge lieu of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereundercondemnation.
(e) Except for The Sellers, with respect to the Peabody PropertiesBusiness, neither Peabody nor and the SLP Subsidiary do not own or hold, and are not obligated under or a party to, any option, right of its Affiliates owns first refusal or leases any real property used other contractual right to purchase, acquire, sell or held for use primarily in or related primarily to or necessary for the operation or conduct dispose of the Peabody Business Real Property, or has any options to acquire any fee portion thereof or interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Businesstherein.
(f) There are no pending orThe Sellers, with respect to the Knowledge of PeabodyBusiness, threatened condemnationand the SLP Subsidiary do not owe any money to any architect, eminent domain contractor, subcontractor or similar proceedings affecting materialmen for labor or materials performed, rendered or supplied to or in connection with the Peabody Properties. There are Real Property, and there is no existing public improvements which may reasonably be expected construction or other improvement work being done at nor is there any construction or other improvement materials being supplied to result in any special assessment against any Peabody Owned the Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Asset and Share Purchase Agreement, Asset and Share Purchase Agreement (Enpro Industries, Inc)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use The Company Group does not interfere with the operation of the Peabody Business. No Peabody Property is leased own or subleased to have any third party, and Peabody has not granted ownership interest in any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody Section 4.16(b) of the Disclosure Schedule lists all real property that is leased or a controlled Affiliate used or occupied by any member of Peabodythe Company Group (the "Rental Real Estate") and the leases, subleases and agreements by which such Rental Real Estate is leased, used or occupied (the "Leases"), true and complete copies of which have been made available to Parent, except as applicableset forth on Section 4.16(b) of the Disclosure Schedule. Except as set forth on Section 4.16(b) of the Disclosure Schedule, has respect to each of the Leases and the Rental Real Estate:
(i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) The applicable member of the Company Group has good and valid leasehold title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Rental Real Estate, free and clear of all Encumbrances (including Royalties)other than Permitted Encumbrances) and enjoy peaceful and undisturbed possession under all such Leases;
(ii) There are no leases, subleases, concessions or other agreements to which the Company Group is a party granting to any Person (other than any Employee or independent contractor of any member of the Company Group) the right to use or occupancy of any portion of the Rental Real Estate, and no Person (other than the applicable Company Group) occupies any part of the Rental Real Estate;
(iii) The Leases represent the entire agreement between the applicable member of the Company Group and the applicable landlord relating to such applicable Rental Real Estate, and there are no other material agreements, written or oral, between the such applicable Company Group and such applicable landlord relating to the Rental Real Estate or such applicable Company Group's use, possession and occupancy of the Rental Real Estate;
(iv) The Company Group has not collaterally assigned or granted any Encumbrance, other than Permitted Encumbrances, in any of the Leases; and
(v) The applicable member of the Company Group and the applicable landlord are currently in material compliance with the terms of all Leases, and all such Leases are in full force and effect.
(c) There are no outstanding options, rights of first offer The Company Group is not a party to any agreement or rights of first refusal option to purchase any Peabody Property real property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Real Property. (a) Section 4.7(a) Neither the Company nor any of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to Subsidiaries owns any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody Section 4.20(b)(i) of the Company Disclosure Schedule contains a complete and accurate list of all existing material leases, subleases, licenses or a controlled Affiliate other agreements (collectively, the “Leases”) under which the Company or any of Peabodyits Subsidiaries uses or occupies or has the right to use or occupy, as applicablenow or in the future, has any real property (i) good and indefeasible fee title to all Peabody Owned such property, the “Leased Real Property”) including, (ii) good with respect to each Lease, the name of the lessor, master and valid title sublessor, the date of the Lease and each amendment thereto, the approximate square footage of the premises leased thereunder to the extent specified, and the aggregate annual rental payable thereunder. The Company has heretofore made available to Parent true, correct and complete copies of all Leases (including all modifications, amendments, supplements, consents, waivers and side letters thereto and all material agreements in connection therewith, including all work letters, improvement agreements, estoppel certificates, and subordination agreements). The Company and/or its Subsidiaries have and own valid leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Leased Real Property, free and clear of all Encumbrances (including Royalties)Liens. Section 4.20(b)(ii) of the Company Disclosure Schedule contains a complete and accurate list of all of the existing Leases granting to any Person, other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property the Company or any portion of its Subsidiaries, any right to use or occupy, now or in the future, any interest therein.
(d) Each of the Peabody Leased Real Property including, with respect to each such Lease, the name of the master lessor, sublessor and sublessee, the date of the Lease and each amendment thereto, the square footage of the premises leased thereunder, and the aggregate annual rental payable thereunder. The Leases is are each in full force and effect (other than any that have by operation of their terms expired or been terminated since the date hereof) and constitutes neither the legalCompany nor any of its Subsidiaries is in material breach of or default under, valid and binding obligations or has received written notice of Peabody any material breach of or its Affiliates that are parties thereto default under, any Lease, and, to the Knowledge knowledge of Peabodythe Company, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including as of the failure to obtain any consent) which, date hereof that with notice or lapse of time or both, both would constitute a breach or default thereunder by the Company or any of its Subsidiaries or any other party thereto.
(c) The Closing will not affect the enforceability against any Person of any Lease or any rights of the Company or the Surviving Corporation thereunder or otherwise with respect to any Leased Real Property, including the right to the continued use and possession of the Leased Real Property for the conduct of business as presently conducted.
(d) Each Lease constitutes the entire agreement of the landlord and the tenant thereunder, and no term or condition thereof has been modified, amended or waived and the copies of the Leases that have previously been delivered by the Company to Parent. Neither the Company nor any of its Subsidiaries owes brokerage commissions or finders fees with respect to any Leased Real Property, nor would the Company or any of its Subsidiaries owe any such fees if any existing Lease were renewed pursuant to any renewal options contained in such Lease. The Company and its Subsidiaries currently occupy all of the Leased Real Property for the operation of their business. The Company has not transferred or assigned any interest in any Lease, nor has the Company subleased or otherwise granted rights of use or occupancy of any of the premises described therein to any other person or entity.
(e) Except Each Leased Real Property and all of its operating systems are in good operating condition and repair, water-tight and free from material structural, physical, mechanical, electrical, plumbing, roof or other defects, is maintained in a first-class manner consistent with industry standards generally followed with respect to similar property, and is suitable for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct business of the Peabody BusinessCompany and its Subsidiaries as presently conducted.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Merger Agreement (Spectralink Corp), Merger Agreement (Polycom Inc)
Real Property. (a) Section 4.7(a) of Except as would not be material to the Peabody Disclosure Letter sets forth Business, taken as a correct whole, or the Purchased Entity (and complete list its Subsidiaries), taken as of the date hereof of a whole, (i) all Peabody Georgia, a Georgia Entity or the Purchased Entity (or one of its Subsidiaries) has good and valid fee simple or other title to the applicable Business Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties)any Liens, other than Permitted Encumbrances.
Liens, and (cii) There Georgia, a Georgia Entity or the Purchased Entity (or one of its Subsidiaries) has a valid leasehold interest in the Business Leased Real Property as lessee or sublessee, in each case free and clear of all Liens other than Permitted Liens. Except as set forth in Section 3.11(a) of the Georgia Disclosure Schedules, (i) no Georgia Entity, nor the Purchased Entity (or any of its Subsidiaries), has leased or otherwise granted to any Person the right to occupy any Business Owned Real Property or any portion thereof and (ii) there are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Business Owned Real Property or any portion of thereof or interest therein. The Purchased Entity and its Subsidiaries are not party to any agreement or option to purchase any real property or interest therein.
(db) Each Except as would not be material to the Business, taken as a whole, (i) all improvements located on the Business Owned Real Property have received all necessary Approvals of Governmental Entities (including licenses and permits) required in connection with the use thereof being made as of the Peabody Leases date of this Agreement, (ii) there are no judicial or administrative Proceedings pending or, to the Knowledge of Georgia, threatened in writing, under any condemnation, environmental, zoning, eminent domain, land-use or other Law applicable to the Business Owned Real Property which, if adversely decided, would interfere with the present use in the Business of the Business Owned Real Property, and (iii) there are no outstanding unpaid assessment notices against any of the Business Owned Real Property.
(c) Except as would not be material to the Business, taken as a whole, (i) each lease or sublease governing Business Leased Real Property is in full force and effect and constitutes the legal, valid and binding obligations of Peabody on the Georgia Entity or its Affiliates Purchased Entity (or Subsidiary thereof) that are parties is a party thereto and, to the Knowledge of PeabodyGeorgia, the each other parties theretoparty thereto and is in full force and effect, enforceable against Peabody except as enforcement may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or such Affiliates andsimilar Laws affecting creditors’ rights generally or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or law), and (ii) to the Knowledge of PeabodyGeorgia, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified no Georgia Entity or supplemented. No party to any Peabody Lease has repudiated any provision Purchased Entity (or Subsidiary thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunderof, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderunder, any such lease or sublease beyond the applicable cure period.
(ed) Except for the Peabody PropertiesSince January 1, 2022, neither Peabody Georgia nor any of its Affiliates owns Subsidiaries has received any written notice of any pending or leases any real property used threatened condemnation or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings proceeding affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Business Leased Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Transaction Agreement (Fidelity National Information Services, Inc.), Transaction Agreement (Global Payments Inc)
Real Property. (a) Section 4.7(a3.12(a) of the Peabody Cabot Disclosure Letter Schedule sets forth a correct list that is true, complete and complete list accurate in all material respects as of the date hereof of (i) all Peabody the street address of each parcel of Cabot Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a3.12(a) of the Peabody Cabot Disclosure Letter also identifies Schedule sets forth all Peabody Properties that also are used leases, license agreements, subleases and occupancy agreements in effect as of the date hereof by other businesses of Peabody which Cabot Parent or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation any Subsidiary thereof leases any portion of the Peabody Business. No Peabody Cabot Owned Real Property is leased or subleased Cabot Leased Real Property to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein Person (other than Permitted EncumbrancesCabot or a Transferred Subsidiary), in each case, pursuant to the terms of which Cabot Parent or any of its Subsidiaries is entitled to receive payments in excess of $10,000,000 over the 12-month period following the date hereof (each, a “Cabot Demising Lease”). As of the date hereof, neither Cabot Parent nor any of its Subsidiaries has exercised any option or right to terminate, renew or extend the term of any Cabot Demising Lease, except as expressly provided in such Cabot Demising Lease in accordance with its terms. Cabot has made available to Columbus true and complete copies of all Cabot Demising Leases.
(b) Peabody Section 3.12(b) of the Cabot Disclosure Schedule sets forth a list that is true, complete and accurate in all material respects as of the date of this Agreement of the Cabot Leases. As of the date hereof, neither Cabot Parent nor any of its Subsidiaries has exercised any option or a controlled Affiliate right to terminate, renew or extend the term of Peabodyany such Cabot Lease, as applicable, has except to the extent provided in such Cabot Lease. True and complete copies of all such Cabot Leases have been made available to Columbus.
(c) Each of Cabot Parent and each Subsidiary thereof that (i) owns a fee interest in a parcel of Cabot Owned Real Property has good and indefeasible fee marketable title to thereto, free and clear of all Peabody Owned Real Property, Encumbrances other than Permitted Encumbrances or (ii) good leases Cabot Leased Real Property pursuant to a Cabot Lease has a valid leasehold interest therein (subject to expiration of such Cabot Lease in accordance with its terms) free and valid title to the leasehold estates in clear of all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody PropertiesEncumbrances other than Permitted Encumbrances, except, in the case of each of clauses (i), (ii) and (iiiii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, extent that the other parties thereto, enforceable against Peabody failure to have such good and marketable title or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties theretovalid leasehold interest, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute not, individually or in the aggregate, reasonably be expected to have a breach or default thereunderCabot Material Adverse Effect.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(fd) There are no pending or, to the Knowledge of Peabody▇▇▇▇▇’s Knowledge, threatened (i) appropriation, condemnation, eminent domain or similar like proceedings affecting relating to the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Cabot Owned Real Property.
Property or, to Cabot’s Knowledge, the Cabot Leased Real Property or (gii) All utility easementsproceedings to change the zoning classification, rights variance, special use, or other applicable land use law of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation any portion of the Peabody Business in substantially Cabot Owned Real Property or, to ▇▇▇▇▇’s Knowledge, the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent propertyCabot Leased Real Property, except for in the case of each of clauses (i) and (ii), to the extent such encroachments as have not had and proceedings would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to have a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesCabot Material Adverse Effect.
Appears in 2 contracts
Sources: Transaction Agreement (Cco Holdings LLC), Transaction Agreement (Cco Holdings LLC)
Real Property. (a) Section 4.7(aSchedule 4.15(a) of the Peabody Disclosure Letter Schedules sets forth a correct and complete list as the address or legal descriptions of all real property interests held in fee simple absolute (collectively, the date hereof of (i) all Peabody “Owned Real Property, (ii”) all Peabody Leases and (iii) all Mining Rights included vested in the Peabody Propertieseach Company. Section 4.7(aExcept as set forth on Schedule 4.15(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of Schedules, the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) Companies have good and indefeasible marketable fee simple absolute title to all Peabody each parcel of Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances Liens, save and except for Permitted Liens.
(including Royaltiesb) Schedule 4.15(b) sets forth a true and complete list and description of all real property leased, licensed to or otherwise used or occupied (but not owned) by each Company and Omega (collectively, the “Leased Real Property”), including certain material facts related thereto. A true and correct copy (or if oral, then a written description thereof) of the lease, license or occupancy agreement, and any amendments thereto, with respect to the Leased Real Property (collectively, the “Real Property Leases”) has been delivered to Purchaser, and no changes have been made to any Real Property Leases since the date of delivery. All of the Leased Real Property is used or occupied by the Companies pursuant to each respective Real Property Lease. Each Real Property Lease is valid, binding and enforceable in accordance with its terms and is in full force and effect. There are no existing defaults by the Companies or, to the Knowledge of Sellers, the lessor under any of the Real Property Leases, and to the Knowledge of Sellers, no event has occurred which (with notice, lapse of time or both) could reasonably be expected to constitute a breach or default under any of the Real Property Leases by any Person or give any Person the right to terminate, accelerate or modify any Real Property Lease. Except as set forth on Schedule 4.15(b), no consent is required from the lessor under any of the Real Property Leases in connection with the transactions contemplated by this Agreement and the Transaction Documents, which has not been obtained and provided to Purchaser and the Companies have not leased or sublet as lessor or sublessor, and no Person (other than Permitted Encumbrancesthe Companies) is in possession of, any of the Leased Real Property.
(c) To the Knowledge of Sellers, all improvements located on, and the use presently being made of, the Leased Real Property comply with all applicable zoning and building codes, ordinances and regulations and all applicable fire, environmental, occupational safety and health standards and similar standards established by applicable Law, and the same use thereof by Purchaser following Closing, in the same manner as conducted by the Companies prior to Closing, will not result in any violation of any such code, ordinance, regulation or standard. The present use and operation of the Leased Real Property does not constitute a non-conforming use and is not subject to a variance. There are is no outstanding optionsproposed, rights of first offer pending or rights of first refusal to purchase threatened change in any Peabody Property such code, ordinance, regulation or any portion of or any interest thereinstandard which would materially adversely affect the Companies.
(d) Each To the Knowledge of Sellers, there is not currently pending or contemplated reassessment of any parcel included in the Leased Real Property that could result in a change in the rent, additional rent or other sums and charges payable by the Companies under any agreement relating to the Leased Real Property.
(e) To the Knowledge of Sellers, there is no pending condemnation, expropriation, eminent domain or similar proceeding affecting all or any portion of the Peabody Leases is in full force and effect and constitutes Leased Real Property. Neither the legal, valid and binding obligations Companies nor Sellers have received any written notice or oral notice of Peabody or its Affiliates that are parties thereto any such proceeding and, to the Knowledge of PeabodySellers, the other parties thereto, enforceable against Peabody or no such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, proceeding is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Businesscontemplated.
(f) There are no pending or, to To the Knowledge of PeabodySellers, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There there are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned material defects in, mechanical failure of, or damage to, the Leased Real Property. To the Knowledge of Sellers, the mechanical, electrical and HVAC systems serving the Leased Real Property are in good working condition.
(g) All utility easementsutilities (including water, rights of access sewer or septic, gas, electricity, trash removal and other easements telephone service) are available to the Leased Real Property in sufficient quantities and similar rights serving quality to adequately serve the Peabody Properties are legally enforceable to permit Leased Real Property in connection with the operation of the Peabody Business in substantially the manner in which the Peabody Business is conducted therefrom as such operations are currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesconducted thereon.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Vivakor, Inc.), Membership Interest Purchase Agreement (Vivakor, Inc.)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody The Owned Real Property, (ii) Property Schedule includes all Peabody Leases and (iii) all Mining Rights included material real property interests owned in fee by the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody Company or its Affiliates Subsidiaries and describes the nature of such use by such other businesses of Peabody or its Affiliates, identifies those interests which constitute Active Operating Properties and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted EncumbrancesReserves and/or Operating Facilities.
(b) Peabody The Company and its Subsidiaries shall promptly provide the following information with regard to each material parcel or a controlled Affiliate tract of Peabody, as applicable, has owned real property (exclusive of oil and gas properties): (i) good and indefeasible fee title to all Peabody Owned Real Property, an identification of the deed or other instrument of conveyance; (ii) good recording information (if available, and valid title to if not, the leasehold estates in all Peabody Leases state and county where the relevant parcel or tract is located); (iii) good the names of at least one grantor and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) one grantee thereunder; and (iii), free iv) the approximate size of the relevant parcel or tract when acquired. The Company and clear its Subsidiaries shall also promptly provide an accurate listing of all Encumbrances owned real property within the currently existing five (including Royalties), other than Permitted Encumbrances5) year mining plan of the Company and its Subsidiaries.
(c) There are no outstanding options, rights of first offer The Leased Real Property Schedule includes all material real property interests in which the Company has or rights of first refusal to purchase any Peabody Property or any portion of or any its Subsidiaries have a leasehold interest thereinand identifies those leasehold interests which constitute Active Operating Properties and Reserves and/or Operating Facilities.
(d) Each The Company and its Subsidiaries shall promptly provide the following information with regard to each material parcel or tract of leased real property (exclusive of oil and gas properties): (i) an identification of the Peabody Leases is in full force lease or sublease agreement and effect any and constitutes the legalall amendments, valid modifications and binding obligations of Peabody or its Affiliates that are parties thereto andside letters; (ii) recording information (if available), to the Knowledge of Peabodyand if not, the other parties thereto, enforceable against Peabody state and county where the relevant parcel or such Affiliates and, to tract is located; (iii) the Knowledge names of Peabody, at least one lessor and one lessee (or sublessor or sublessee) thereunder; (iv) the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified approximate size of the relevant parcel or supplemented. No party to any Peabody Lease has repudiated any provision tract leased thereunder when acquired; and (v) the term thereof, including any extension options. The Company and neither Peabody its Subsidiaries shall also promptly provide an accurate listing of all leased real property within the currently existing five (nor 5) year mining plan of the Company and its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderSubsidiaries.
(e) Except for as set forth on the Peabody PropertiesReal Property Disclosure Schedule and except Permitted Encumbrances which individually or in the aggregate do not constitute a Material Adverse Effect on the Company, neither Peabody nor any the Company and its Subsidiaries hold (i) good and marketable Mining Title, as hereinafter defined, to the Active Operating Properties and Reserves and to the Operating Facilities and (ii) as to the Other Real Property, an interest of record or a leasehold interest from a person or entity which the Company or its Affiliates owns Subsidiaries reasonably believe has an interest of record. As used in this subparagraph (e), Mining Title means fee simple title to surface and/or coal or leases any real property used an undivided interest in fee simple title thereto or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or a leasehold interest in any real property all or an undivided interest in surface and/or coal together with (i) for use primarily Active Operating Properties and Reserves designated for surface mining no less than those easements, licenses, privileges, rights, and appurtenances as are necessary to mine, remove, and transport coal by surface mining methods; (ii) for Active Operating Properties and Reserves designated for underground mining, no less than those easements, licenses, privileges, rights, and appurtenances as are necessary to mine, remove, and transport coal by underground mining methods; and (iii) for Operating Facilities, no less than those easements, licenses, privileges, rights, and appurtenances as are necessary to operate the Operating Facilities in or related primarily to or necessary for the operation or conduct of the Peabody Businessmanner presently operated.
(f) There Except as disclosed in the Real Property Disclosure Schedule, neither the Company nor its Subsidiaries have received any written notice alleging that the Company or its Subsidiaries are no pending or, to in default under any material lease. Except as disclosed on the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may Real Property Disclosure Schedule and except as could not reasonably be expected to result have a Material Adverse Effect on the Company, neither the Company nor its Subsidiaries are in default under any special assessment against any Peabody Owned lease relating to Active Operating Properties and Reserves, Operating Facilities or Other Real Property.
(g) Except for leases which would not have a Material Adverse Effect on the Company if found to be invalid or unenforceable, each of the leases on the Leased Real Property Schedule is, and will be on and immediately following the Closing Date, valid and enforceable against the lessor or other parties thereto in accordance with its terms. To the Knowledge of the Company there are no unwritten modifications to such leases.
(h) To the Knowledge of the Company, except as set forth on the Real Property Disclosure Schedule, neither the Company nor any of its Subsidiaries have received any notice of claims that the Company or any Subsidiary has mined any coal that did not belong to it, or mined any coal in such reckless or imprudent fashion as to give rise to any material claims for loss, waste or trespass.
(i) All utility easementsexisting maps, rights of access surveys, title insurance policies, title insurance, abstracts and other easements evidence of title have been made available by the Company and similar rights serving its Subsidiaries to the Peabody Properties are legally enforceable to permit Purchaser.
(j) To the operation Knowledge of the Peabody Business in substantially Company, and other than set forth on the manner in which Real Property Disclosure Schedule, no condemnation or eminent domain proceeding against any part of such property is pending or threatened, and the Peabody Business Company and its Subsidiaries have no knowledge that any such proceeding is currently operated. Other than Permitted Encumbrancescontemplated.
(k) To the Knowledge of the Company, except as set forth on the Real Property Disclosure Schedule, there are no encroachments upon the Peabody adverse possession claims regarding those real property interests which constitute Active Operating Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesReserves and/or Operating Facilities.
Appears in 2 contracts
Sources: Merger Agreement (Aei Resources Inc), Merger Agreement (Zeigler Coal Holding Co)
Real Property. (a) Section 4.7(a6.08(a) of the Peabody Oncor Disclosure Letter Schedule sets forth a correct and complete list as of the date hereof of (i) all Peabody real property included in the Oncor T Assets (“Oncor Owned Real Property”), (ii) all Peabody Leases real property currently leased or subleased to an Oncor Entity included in the Oncor T Assets (“Oncor Leasehold Property” and, together with the Oncor Owned Property, the “Oncor Property”), including the lease and any amendments thereto (each, an “Oncor Lease”) under which such Oncor Leasehold Property is held and (iii) all Mining Rights easements, license agreements (including railroad, pipeline and similar crossing rights), rights of way and lease for rights of way, or other rights in or to the use of real property (collectively, “Oncor Easements” and, together with the Oncor Leases, the “Oncor Real Property Agreements”) included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted EncumbrancesOncor T Assets.
(b) Peabody or a controlled Affiliate As of Peabodythe date hereof, as applicableOncor has, has (i) and at the Closing Oncor AssetCo will have, good and indefeasible fee title to all Peabody Oncor Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), Liens other than Permitted Encumbrances. No Oncor Entity has granted to any third party the right to use or access the Oncor Owned Property in any manner that interferes in any material respect with the Oncor Owned Property or the Subject Oncor Operations or otherwise granted to any third party any ownership in any material Oncor Owned Property.
(c) There As of the date hereof, Oncor has, and at the Closing Oncor AssetCo will have, valid and enforceable leasehold interests with respect to the Oncor Leasehold Property, free and clear of all Liens other than Permitted Encumbrances, except that the validity and enforceability of the Oncor Leases under which such Oncor Leasehold Property is held are no outstanding options, rights of first offer or rights of first refusal subject to purchase any Peabody Property or any portion of or any interest thereinthe Enforceability Exceptions.
(d) Each No consent from any counterparty to any Oncor Real Property Agreement is required in connection with the consummation of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to Oncor Merger. To the Knowledge of PeabodyOncor, the other parties thereto, enforceable against Peabody no Oncor Entity is in breach in any material respect or such Affiliates and, in material default under any Oncor Real Property Agreement to which it is a party. To the Knowledge of PeabodyOncor, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party no counterparty to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as of the case may be) nor, to the Knowledge of Peabody, any other party thereto, Oncor Real Property Agreements is in breach material default of any of its respective obligations thereunder, and no event has occurred (including under the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderapplicable Oncor Real Property Agreement.
(e) Except for To the Peabody PropertiesKnowledge of Oncor, neither Peabody nor there are no developments affecting the Oncor Owned Property or any of its Affiliates owns the Oncor Real Property Agreements which are pending or leases threatened, which might materially detract from the value, materially interfere with any real property used present or held for intended use primarily in or related primarily to or necessary for materially and adversely affect the operation or conduct fee title of the Peabody Business Oncor Owned Property or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody BusinessOncor Real Property Agreements.
(f) There are no pending orOncor has not received written notice from any Person within three years prior to the date of this Agreement asserting that Oncor does not have the right, as a result of title defects or title failures, to the Knowledge of Peabody, threatened condemnation, eminent domain use or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in occupy any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation portion of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other Oncor Property, other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and those notices that would not reasonably be expected to haveindividually, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements reasonably be expected to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertieshave an Oncor Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Oncor Electric Delivery Co LLC), Merger Agreement (InfraREIT, Inc.)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Neither VitalStream nor any VitalStream Subsidiary owns any Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property Neither VitalStream nor any VitalStream Subsidiary is leased or subleased a party to any third party, and Peabody has not granted any third party any license, possessory agreement or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal option to purchase any Peabody Real Property or any portion of or any interest therein.
(dii) Each Schedule 4(n)(ii) attached hereto sets forth a true and complete list of (A) the address of each parcel relating to, used in connection with, or necessary or useful in, the operation or conduct of the Peabody Leases business of VitalStream and the VitalStream Subsidiaries (collectively, the "VitalStream Leased Real Property") and (B) the date and the names of the parties to each Real Property Lease in respect of each parcel of VitalStream Leased Real Property (collectively, the "VitalStream Real Property Leases"). VitalStream has delivered to Hosting a true and complete copy of each written VitalStream Real Property Lease, and in the case of any oral VitalStream Real Property Lease, a written summary of the material terms of such VitalStream Real Property Lease. Except as set forth on Schedule 4(n)(ii) attached hereto, with respect to each VitalStream Real Property Lease:
(A) such VitalStream Real Property Lease is legal, valid, binding, enforceable and in full force and effect, except as such enforceability may be limited by (1) applicable insolvency, bankruptcy, reorganization, moratorium or other similar Laws affecting creditors' rights generally and (2) applicable equitable principles (whether considered in a proceeding at law or in equity);
(B) the transactions contemplated by this Agreement and the other Transaction Agreements do not require the consent of any other party to such VitalStream Real Property Lease (except as set forth in Schedule 4(b) attached hereto), will not result in a breach of or default under such VitalStream Real Property Lease, and will not otherwise cause such VitalStream Real Property Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing;
(C) VitalStream's and constitutes the legalVitalStream Subsidiaries' possession and quiet enjoyment of the VitalStream Leased Real Property under such VitalStream Real Property Lease has not been disturbed and there are no disputes with respect to such VitalStream Real Property Lease;
(D) None of VitalStream, valid and binding obligations of Peabody or its Affiliates that are parties thereto andany VitalStream Subsidiary or, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of PeabodyVitalStream, any other party thereto, to such VitalStream Real Property Lease is in breach of any of its respective obligations thereunderor default under such VitalStream Real Property Lease, and no event has occurred (including the failure to obtain any consent) or circumstance exists which, with notice or lapse the delivery of notice, the passage of time or both, would constitute such a breach or default thereunderdefault, or permit the termination, modification or acceleration of rent under such VitalStream Real Property Lease;
(E) Neither VitalStream nor VitalStream Subsidiary owes, or will owe in the future, any brokerage commissions or finder's fees with respect to such VitalStream Real Property Lease;
(F) The other party to such VitalStream Real Property Lease is not an Affiliate of, and otherwise does not have any economic interest in, VitalStream or any VitalStream Subsidiary;
(G) Neither VitalStream nor any VitalStream Subsidiary has subleased, licensed or otherwise granted any Person the right to use or occupy such VitalStream Leased Real Property or any portion thereof;
(H) Neither VitalStream nor any VitalStream Subsidiary has collaterally assigned or granted any other Lien in such VitalStream Real Property Lease or any interest therein; and
(I) Except as may arise by operation of law or under any VitalStream Real Property Lease, there are no Liens on the estate or interest created by such VitalStream Real Property Lease.
(eiii) Except for All Improvements included in the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily VitalStream Leased Real Property are in or related primarily to or necessary good condition and repair and sufficient for the operation of VitalStream's and any VitalStream Subsidiary's business as currently conducted thereon or conduct of the Peabody Business or has any options contemplated to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Propertiesbe conducted thereon. There are no existing public improvements which may reasonably be expected to result in structural deficiencies or latent defects affecting any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, Improvements and there are no encroachments upon facts or conditions affecting any of the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to haveImprovements which would, individually or in the aggregate, a material adverse effect on a particular item interfere in any respect with the use or occupancy of real propertythe Improvements or any portion thereof in the operation of VitalStream's and any VitalStream Subsidiary's business as currently conducted thereon or contemplated to be conducted thereon.
(iv) There is no condemnation, expropriation or other proceeding in eminent domain, pending or threatened, affecting any parcel of VitalStream Leased Real Property or any portion thereof or interest therein. The improvements There is no injunction, decree, order, writ or judgment outstanding, nor any Claims, administrative actions or similar proceedings, pending or threatened, relating to the Peabody Properties ownership, lease, use or occupancy of the VitalStream Leased Real Property or any portion thereof, or the operation of VitalStream's and any VitalStream Subsidiary's business as currently conducted thereon or contemplated to be conducted thereon.
(v) The VitalStream Leased Real Property is in compliance with all applicable Real Property Laws (including any Environmental, Health and Safety Requirements, zoning, planning, subdivision, platting or similar Laws) affecting the VitalStream Leased Real Property, and the current uses thereof) do use and occupancy of the VitalStream Leased Real Property and operation of by VitalStream and the VitalStream Subsidiaries of their business thereon does not (i) violate set-backany Real Property Laws. VitalStream has not received any notice of violation of any Real Property Law and there is no basis for the issuance of any such notice or the taking of any action for such violation. There is no pending or anticipated change in any Real Property Law that will have a VitalStream Material Adverse Effect on the ownership, building lease, use or side lines, occupancy of any VitalStream Leased Real Property or any applicable land use covenants, zoning regulations portion thereof in the continued operation of VitalStream's and any VitalStream Subsidiary's business as currently conducted thereon or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiescontemplate to be conducted thereon.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Vitalstream Holdings Inc), Asset Purchase Agreement (Brekka Richard)
Real Property. (ai) Section 4.7(a3.15(a) of the Peabody Seller Disclosure Letter Schedule sets forth a correct and complete list forth, as of the date hereof of this Agreement, a list of all leases, subleases, licenses and other agreements (ieach a “Real Property Lease”) all Peabody Owned under which the Company or any of the MUI Subsidiaries leases, uses or occupies or has the right to use or occupy any real property (such real property, the “Leased Real Property, (ii”) all Peabody Leases and (iii) all Mining Rights included in pursuant to which the Peabody Properties. Section 4.7(a) of Company or the Peabody Disclosure Letter also identifies all Peabody Properties that also are used MUI Subsidiaries is a tenant or a lessor as of the date hereof by other businesses of Peabody or its Affiliates this Agreement. The Company and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or MUI Subsidiaries have a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to valid leasehold estate in all Peabody Owned Leased Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties)liens, other than Permitted Encumbrances.
(c) There are no outstanding options, rights Liens. True and complete copies of first offer or rights of first refusal to purchase any Peabody each Real Property or any portion of or any interest therein.
(d) Each Lease as in effect as of the Peabody Leases date hereof (together with all amendments thereto as of the date hereof) have been made available to Buyer. Each Real Property Lease is in full force and effect and constitutes the legal, valid and binding obligations obligation of Peabody the Company or its Affiliates that are parties thereto the applicable MUI Subsidiary and, to the Knowledge knowledge of Peabodythe Company, any other party thereto in each case subject to the other parties thereto, enforceable against Peabody Bankruptcy and Equity Exception. There is not under any Real Property Lease (i) any existing material default of the Company or such Affiliates andany MUI Subsidiary or, to the Knowledge knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of PeabodyCompany, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred or (including the failure to obtain any consentii) which, with notice or lapse of time time, or both, would constitute such a breach or default thereundermaterial default.
(eii) Except for Section 3.15(a) of the Peabody PropertiesSeller Disclosure Schedule sets forth, neither Peabody nor as of the date of this Agreement, a list of all real property to which the Company or any of its Affiliates owns the MUI Subsidiaries has legal or leases any real property used or held equitable fee title (the “Owned Real Property” and, together with the Leased Real Property, the “Real Property”), and sets forth for use primarily in or related primarily to or necessary for each such Owned Real Property the operation or conduct name of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct owner of the Peabody Businesssuch property.
(fiii) There The Company or one of the MUI Subsidiaries has good and marketable fee title to the Owned Real Property and good leasehold title to the Leased Real Property, in each case, free and clear of all Liens, except for Permitted Liens or as set forth on Section 3.15(a) of the Seller Disclosure Schedule, or which do not materially detract from the value or current use of the Real Property.
(iv) Except as set forth on Section 3.15(a) of the Seller Disclosure Schedule, there are no written or oral leases, subleases, licenses, concessions, occupancy agreements or other contracts granting to any other Person any material rights of use or occupancy of any of the Real Property that would materially detract from the value or current use of the Real Property and there is no Person (other than the Company and the MUI Subsidiaries) in possession of any of the Real Property.
(v) No eminent domain or condemnation Proceeding is pending or, to the Knowledge Company’s Knowledge, threatened, that would preclude or materially impair the use of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
Real Property. (a) Seller does not currently own any real property, nor has Seller agreed to and Seller does not hold any Contract, agreement, option or other rights to purchase or to acquire any real property, nor has Seller previously owned any real property. Section 4.7(a3.15(a) of the Peabody Disclosure Letter Schedule sets forth a correct and complete list as of the date hereof of (i) a true, complete, and correct list of all Peabody Owned real property leases, subleases, licenses, or occupancy agreements, including all amendments, modifications or supplements thereto (the “Real PropertyProperty Leases”), to which Seller is a party, whether as a (sub)lessor, (sub)lessee, or otherwise, and (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) identity of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of lessee, lessor, sublessee, sublessor, licensee, licensor or other party to each Real Property Lease, the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliateseach Real Property Lease, and the corresponding street address with respect to the real property (any such use does not interfere with real property, the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned “Real Property, (ii”) good and valid title to the leasehold estates in all Peabody leased under each Real Property Lease. The Real Property Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody Seller. Seller has not leased, subleased, assigned, transferred or its Affiliates that are parties thereto andotherwise granted to any Person the right to use or occupy the Real Property or any portion thereof. Seller does not owe any brokerage commissions or finder’s fees with respect to any Real Property Lease, and Seller has not collaterally assigned or granted any other security interest in any Real Property Lease.
(b) The Real Property and the use of the Real Property by Seller for the purposes for which the Real Property is currently being used complies in all material respects with (i) all applicable public and private restrictions, fire, safety, zoning, subdivision and building Laws and ordinances, Laws relating to the disabled, and other applicable Laws and (ii) all Permits, certificates of occupancy, covenants, conditions, restrictions or other contractual obligations applicable to the Real Property, including the requirements of any applicable Lien. To the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted EncumbrancesSeller, there are no encroachments upon pending or threatened eminent domain, expropriation, condemnation, zoning or other Proceedings affecting the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and Real Property that would not reasonably be expected to have, individually or result in the aggregate, a material adverse effect on a particular item taking of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, all or any applicable land part of the Real Property or that would prevent or hinder the continued use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on of the Peabody PropertiesReal Property as currently used in the conduct of the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Heritage Global Inc.), Asset Purchase Agreement (Heritage Global Inc.)
Real Property. (a) Section 4.7(aSCHEDULE 4.15 lists and describes all real property (together with all improvements thereon, the "REAL PROPERTY") now used, operated or occupied by the Acquired Companies and the name of the Peabody Disclosure Letter sets forth a correct and complete list as record owner thereof. For each parcel of Real Property listed on SCHEDULE 4.15, which is owned by the Acquired Companies, each of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) Acquired Companies holds good and indefeasible marketable fee simple title to all Peabody Owned such Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), Property free and clear of all any Encumbrances (including Royalties), other than except for Permitted Encumbrances.
(c) There are no outstanding options. For each parcel of Real Property listed on SCHEDULE 4.15, rights of first offer or rights of first refusal which is not owned by the Acquired Companies, the Company has made available to purchase any Peabody Property or any portion of or any interest therein.
(d) Each Purchaser true and correct copies of the Peabody Leases Real Property lease or sublease (each a "REAL PROPERTY LEASE") with respect to such Real Property. Each Real Property Lease is legal, valid, binding, enforceable, and in full force and effect and constitutes none of the legalAcquired Companies has assigned, valid transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in the leasehold or subleasehold. Each of the Acquired Companies enjoys peaceful and binding obligations undisturbed possession of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofall Real Property, and neither Peabody each of the Acquired Companies has fulfilled in all material respects all the obligations required to be performed by it through the date hereof with respect to each Real Property Lease.
(nor its Affiliates that b) Each of the Acquired Companies has received all required material approvals of Governmental Authorities (including Permits and material certificates of occupancy or other similar certificates permitting lawful occupancy of the Real Property) required in connection with the present use of the Real Property and all the Improvements thereon.
(c) All the Real Property are parties thereto, supplied with utilities and other services necessary for the operation of such facilities as the case may becurrently operated.
(d) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunderAll Improvements, and no event has occurred (including all Fixtures and Equipment and other tangible assets owned, leased, or used by the failure to obtain any consent) whichAcquired Companies on the Real Property are in good condition and repair in all material respects, with notice or lapse of time or both, would constitute a breach or default thereunderand such Improvements and Fixtures are free from structural defects.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct None of the Peabody Business Acquired Companies has received notice of any special assessment relating to any Real Property or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct portion thereof, and none of the Peabody BusinessAcquired Companies has knowledge of any pending or threatened special assessment.
(f) There are no pending oris not now pending, or to the Knowledge knowledge of Peabodythe Company, threatened condemnationthreatened, any eminent domain or similar proceedings condemnation proceeding affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, Property or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesportion thereof.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Usinternetworking Inc), Stock Purchase Agreement (Usinternetworking Inc)
Real Property. (a) Section 4.7(aSchedule 3.18(a) of the Peabody Disclosure Letter sets forth a correct and complete list attached hereto lists, as of the date hereof of this Agreement, the address and description of each Owned Real Property. With respect to each Owned Real Property: (i) all Peabody the applicable Company has good and marketable fee simple title to such Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances Liens, except Permitted Liens and Other Liens; (including Royalties)ii) except as set forth on Schedule 3.18(a) attached hereto, the applicable Company has not leased or otherwise granted to any Person any contractual right to use or occupy such Owned Real Property or any portion thereof; and (iii) other than Permitted Encumbrances.
(c) There the right of Acquiror pursuant to this Agreement, there are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody such Owned Real Property or any portion of thereof or interest therein. No Company is a party to any agreement or option to purchase any real property or interest therein.
(db) Each Schedule 3.18(b) attached hereto sets forth the address of each Leased Real Property, and a true and complete list of all Leases (including all amendments thereto) for each such Leased Real Property (including the date and name of the Peabody Leases is in full force parties to such Lease document). The Companies have delivered to Acquiror a true and effect and constitutes complete copy of each such Lease. Except as set forth on Schedule 3.18(b) attached hereto, with respect to each of the Leases: (i) such Lease represents the legal, valid and binding obligations of Peabody or its Affiliates that are parties and is enforceable against the Company party thereto and, to the Knowledge knowledge of PeabodySellers, represents the other parties theretolegal, valid and binding obligations of and is enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody , subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity; (ii) as of the date hereof, the applicable Company’s possession and quiet enjoyment of the Leased Real Property under such Lease has not been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofdisturbed, and to the knowledge of Sellers, there are no disputes with respect to such Lease; (iii) neither Peabody (nor its Affiliates that are parties thereto, as the case may be) applicable Company nor, to the Knowledge knowledge of Peabodythe Sellers, any other party thereto, to the Lease is in breach or default under such Lease, and, to the knowledge of any of its respective obligations thereunderthe Sellers, and no event has occurred (including the failure to obtain any consent) or circumstance exists which, with notice or lapse the delivery of notice, the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent under such Lease; (iv) to the knowledge of the Sellers, no security deposit or portion thereof deposited with respect such Lease has been applied in respect of a breach or default thereunderunder such Lease which has not been redeposited in full; (v) the other party to such Lease is not a Controlled Affiliate of ▇▇▇▇▇▇▇ Limited; and (vi) the applicable Company has not subleased, licensed or otherwise granted any Person any contractual right to use or occupy such Leased Real Property or any portion thereof.
(ec) Except for The Owned Real Property identified on Schedule 3.18(a) attached hereto and the Peabody PropertiesLeased Real Property identified on Schedule 3.18(b) attached hereto (collectively, neither Peabody nor any the “Real Property”) comprise all of its Affiliates owns or leases any the real property currently used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Real Property. (a) Section 4.7(aThe Company does not own any real property. Schedule 2.5(a) of the Peabody Company Disclosure Letter sets forth Schedule contains a correct and complete list as legal description of each parcel of real property that the date hereof of (i) all Peabody Owned Real PropertyCompany leases, (ii) all Peabody Leases and (iii) all Mining Rights included subleases, licenses, occupies, or uses in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere connection with the operation of the Peabody Businessbusiness of the Company as presently conducted or proposed to be conducted upon completion of the Facility (the “Real Property”). No Peabody The parcels of Real Property is which are leased or subleased by the Company and which leases or subleases will be assigned to Purchaser at the Closing, as identified on Schedule 2.5(a), are referred to herein as “Leased Real Property”, and the parcels of Real Property which are licensed or sublicensed by the Company and which will be assigned to Purchaser, as identified on Schedule 2.5(a), are referred to herein as “Licensed Real Property”. Except as set forth on Schedule 2.5(a) of the Company Disclosure Schedule, no right to use or occupy any portion of the Leased Real Property has been granted to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein Person other than Permitted EncumbrancesCompany nor are there any parties in possession of any portion of the Leased Real Property, whether as tenants, subtenants, trespassers or otherwise, except the Company.
(b) Peabody or The Company has a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned valid leasehold interest in the Leased Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties)Encumbrances, other than Permitted EncumbrancesLiens. To the Knowledge of the Company, the Company has a valid license or sublicense to occupy and use the Licensed Real Property. The Company has paid, discharged or reserved for, all lawful claims that, if unpaid, could become an Encumbrance against the Leased Real Property or any portion thereof.
(c) There are no outstanding optionsWith respect to each parcel of Leased Real Property and the buildings, rights structures, improvements and fixtures thereon:
(i) No condemnation or eminent domain taking of first offer or rights of first refusal to purchase any Peabody Property the Leased Real Property, or any portion of or any interest therein.
(d) Each of the Peabody Leases thereof, has occurred. There is in full force no pending, and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabodythe Company, threatened or contemplated, appropriation, condemnation, eminent domain or like proceeding affecting the Leased Real Property or any part thereof or of any sale or other parties thereto, enforceable against Peabody disposition of the Leased Real Property or such Affiliates and, to the Knowledge any part thereof in lieu of Peabody, the other parties thereto, condemnation.
(ii) Except for assessments occurring on a regular basis in accordance with their respective terms. No Peabody Lease has been amendedapplicable Legal Requirements, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, there is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabodythe Company, threatened condemnationcontemplated reassessment of any parcel included in the Leased Real Property that is reasonably expected to increase the real estate tax assessment for such properties.
(iii) There is no pending, eminent domain or similar proceedings to the Knowledge of the Company, contemplated proceeding to rezone any parcel of the Leased Real Property. To the Knowledge of the Company, the uses for which each parcel of the Leased Real Property are zoned do not restrict, or in any manner impair, the current use of the Leased Real Property or the proposed use by the Purchaser. To the Knowledge of the Company, the Company has not received notice of any violation of any applicable zoning law, regulation or other Legal Requirement, related to or affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Leased Real Property.
(giv) All utility easementsTo the Knowledge of the Company, all buildings, structures and other improvements on the Leased Real Property, including but not limited to driveways, garages, landscaped areas and sewer systems, and all means of access to the Leased Real Property, are located completely within the boundary lines of the Leased Real Property and do not encroach upon or under the property of any other Person or entity. No buildings, structures or improvements constructed on the property of any other Person encroach upon or under the Leased Real Property.
(v) To the Knowledge of the Company, the use of the Leased Real Property, or any portion thereof, does not violate or conflict with (i) any covenants, conditions or restrictions applicable thereto or (ii) the terms and provisions of any contractual obligations relating thereto.
(vi) Except as set forth on Schedule 2.5(c)(vi) of the Company Disclosure Schedule, none of the Leased Real Property is subject to any right of first offer, right of first refusal, option or other agreement for the sale or lease thereof.
(vii) The Company has good and valid rights of ingress and egress to and from all of the Leased Real Property (including between separate parcels included within the Leased Real Property) from and to pipelines (including, but not limited to, pipelines to access the rail loading area) and the public street systems for all usual street, road and utility purposes and other easements and similar rights serving the Peabody Properties are legally enforceable purposes necessary or incidental to permit the operation of the Peabody Business business of the Company conducted or proposed to be conducted upon completion of the Facility.
(viii) Except as set forth on Schedule 2.5(c)(viii) of the Company Disclosure Schedule, to the Knowledge of the Company, all utilities required for or useful in substantially the manner operation of the business of the Company either enter the Leased Real Property through adjoining streets and roads, or if they pass through adjoining private land, they do so in which accordance with valid public easements. All necessary utilities (including without limitation, water, sewer, electricity and telephone facilities) are available to the Peabody Business is Leased Real Property and there exists, to the Knowledge of the Company, no proposed limitation in or reduction of the quality or quantity of utility services to be furnished to the Leased Real Property. Permanent adequate sewage and water systems and connections are available to the Leased Real Property as currently operated. Other than Permitted Encumbrances.
(ix) No Proceeding is pending or, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (Knowledge of the Company, is threatened, to revoke, suspend, modify or limit any of the permits required under applicable Legal Requirements with respect to its leasehold interest in and use and occupancy of, the current uses thereofLeased Real Property. Except as set forth on Schedule 2.8(d) do not (i) violate set-backof the Company Disclosure Schedule, building no Permit will be subject to revocation, suspension, modification or side lines, limitation as a result of this Agreement or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesconsummation of the transactions contemplated hereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Blackhawk Biofuels, LLC), Asset Purchase Agreement (Blackhawk Biofuels, LLC)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth Seller does not own any real property. The Seller Parties have delivered to Buyer a correct and complete list as copy of each lease (or a summary of the date hereof material terms of the lease, if oral), including amendments, waivers, or other changes thereto, relating to the Leased Real Property (each, a “Lease,” and collectively, the “Leases”). The Leased Real Property and the Leases comprise all leased real property interests and Contracts related thereto used in the conduct of the Business. With respect to each Lease: (i) except as set forth on Schedule 5.24, all Peabody Owned Real Property, leased buildings and improvements and all leased fixtures are held under such Lease; (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title subject to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody PropertiesEnforceability Exceptions, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases such Lease is in full force and effect and constitutes the legal, a valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, instrument enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofSeller, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, in each case in accordance with its terms, (iii) all rents, required deposits, additional rent and payments due as of the Closing Date pursuant to such Lease have been paid in full, (iv) there is no existing default by Seller or, to Seller Parties’ Knowledge, by the lessor under such Lease, (v) Seller has not received any notice that it is in breach of default under such Lease, (vi) to Seller Parties’ Knowledge, no party other than Seller and the identified lessor have any of its respective obligations thereunderinterest in the Leased Real Property, and (vii) except as set forth on Schedule 5.3, no event has occurred (including Consent is required to be obtained by Seller pursuant to any Lease in connection with the failure to obtain any consent) which, with notice or lapse consummation of time or both, would constitute a breach or default thereunder.
(e) the Transactions. Except for the Peabody PropertiesLeases and as set forth on Schedule 5.24, neither Peabody nor Seller has not entered into any leases or subleases or granted any rights of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easementsfirst refusal, rights of access reverter, options to purchase or rights of occupancy with respect to the Leased Real Property. To Seller Parties’ Knowledge, the Leased Real Property is validly zoned for its current use and other easements occupancy by Seller under the applicable zoning codes and similar rights serving the Peabody Properties are legally enforceable to permit the operation urban renewal plans and Seller’s current use of the Peabody Business Leased Real Property is in substantially the manner in which the Peabody Business is currently operatedcompliance therewith. Other than Permitted EncumbrancesTo Seller Parties’ Knowledge, there are no encroachments upon pending or threatened condemnations, planned public improvements, annexations, special assessments, zoning or subdivision changes, or other adverse claims affecting the Peabody Properties Leased Real Property. All of the buildings, material fixtures and no other improvements and building systems situated within the Leased Real Property are in operating condition, reasonable wear and tear excepted, and, if required to any Peabody Properties encroach onto any adjacent propertybe maintained by Seller under the applicable lease, except for such encroachments as have not had and would not reasonably be expected to have, individually or been maintained in the aggregate, a material adverse effect on a particular item ordinary course of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesbusiness.
Appears in 2 contracts
Sources: Asset Purchase Agreement (CRAWFORD UNITED Corp), Asset Purchase Agreement (CRAWFORD UNITED Corp)
Real Property. (a) Section 4.7(a4.10(a) of the Peabody Ardagh Disclosure Letter sets Schedule lists each parcel of Owned Real Property (other than warehouses that are not material to the AMP Business). The applicable AMP Entities set forth a correct and complete list as on Section 4.10(a) of the date hereof of (i) all Peabody Ardagh Disclosure Schedule have valid title in fee simple to the Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
), and except for Encumbrances that secure the Ardagh Existing Indebtedness that will be discharged by Ardagh at or prior to the Closing. Prior to the date of this Agreement, Ardagh has made available to GHV true, correct and complete copies of each deed (cor applicable non-U.S. equivalent evidence of title) There for the Owned Real Property and all material title insurance policies and surveys relating to Owned Real Property to the extent in Ardagh’s or any of its Subsidiaries’ possession or control. Neither Ardagh nor any of its Subsidiaries (including any AMP Entity) has leased, licensed or otherwise granted to any Person the right to use or occupy such Owned Real Property or any material portion thereof, and there are no outstanding options, rights of first offer or offer, rights of first refusal or other rights in favor of any Person (other than any other AMP Entity) to purchase any Peabody Property or such Owned Real Property, any portion of thereof or any interest therein.
(db) Each Section 4.10(b) of the Peabody Leases is in full force and effect and constitutes Ardagh Disclosure Schedule lists each of the legalleases (other than warehousing leases), valid and binding obligations of Peabody subleases, licenses or its Affiliates that are parties thereto and, any other Contract relating to the Knowledge Leased Real Property (the “AMP Leases”), true, correct and complete copies of Peabodywhich have been made available to GHV. One of the AMP Entities has a valid, the other parties thereto, binding and enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofleasehold interest in, and neither Peabody (nor its Affiliates that are parties theretoenjoys peaceful and undisturbed possession of, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderall Leased Real Property.
(ec) Except for The Owned Real Property and the Peabody PropertiesLeased Real Property, neither Peabody nor any together with the rights granted or services to be provided by Ardagh and its Subsidiaries to the AMP Entities pursuant to the Services Agreement, constitute all of its Affiliates owns or leases any the interests in real property used owned, leased or held for use primarily in licensed by the AMP Entities (or related primarily otherwise with respect to or the AMP Business) and which are necessary for the continued operation or conduct of the Peabody AMP Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Businessas currently conducted.
(fd) There are is no pending or, to the Knowledge of PeabodyArdagh, threatened condemnationin writing, eminent domain (i) appropriation, condemnation or similar proceedings like proceeding or order materially affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to Leased Real Property or any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses part thereof) do not (i) violate set-back, building or side lines, or any applicable land affecting the quiet use covenantsand enjoyment thereof, zoning regulations or similar enforceable restrictions or (ii) encroach on sale or other disposition of any easements Owned Real Property, any Leased Real Property or any part thereof in lieu of condemnation or other matters materially affecting and impairing use by the AMP Entities thereof.
(e) All improvements and fixtures, and building equipment and machinery having an individual book value as of the date hereof of at least $5,000,000 or that are otherwise material to the AMP Business located on the Peabody PropertiesOwned Real Property, and all improvements and fixtures, and building equipment and machinery having an individual book value as of the date hereof of at least $5,000,000 or that are otherwise material to the AMP Business located on the Leased Real Property, if any, are in good working order and repair (subject to ordinary wear and tear), and except for any defects that would not impair the use of such improvements, fixtures, building equipment or machinery.
Appears in 2 contracts
Sources: Business Combination Agreement (Ardagh Metal Packaging S.A.), Business Combination Agreement (Gores Holdings v Inc.)
Real Property. (a) Section 4.7(aSeller owns fee simple, beneficial or leasehold interests (as the case may be) in the Real Property described in Schedule 2.1(a), together with those buildings, improvements and fixtures attached to Real Property owned by Seller described in Schedule 2.1(a) and all appurtenances and rights thereto. As of the Peabody Disclosure Letter sets forth a correct dates specified on Schedule 3.12 pertaining to each parcel of Real Property that is owned by Seller, the Real Property (excluding any Real Property that is not specifically referenced in connection with the disclosure of Encumbrances) that is owned by Seller was free and complete list as clear of any Encumbrances other than the date hereof Permitted Real Property Encumbrances, and those described on Schedule 3.4(a). To Seller’s knowledge, no additional Encumbrances that are not Permitted Real Property Encumbrances have been incurred or suffered against the Real Property since the dates specified on Schedule 3.12 pertaining to each parcel of (i) Real Property that is owned by Seller. Schedule 3.12 shall be updated to reflect all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included additional Encumbrances that are reflected in the Peabody Properties. title insurance policies and Surveys described in Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties 9.6 that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody constitute Permitted Real Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates Encumbrances described in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses subsection (i), (ii) and ), (iii), free and clear ) or (iv) of the definition of Permitted Real Property Encumbrances or agreed to in writing by Buyer.
(b) The Real Property described in Schedule 2.1(a) comprises all Encumbrances (including Royalties), other than Permitted Encumbrancesof the real property owned or leased by Seller that is associated with or employed in the current operation of the Hospital Businesses.
(c) There are no outstanding options, rights of first offer At Closing Seller will convey to Buyer fee simple or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
leasehold interests (d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) norin all Real Property, free and clear of any Encumbrances other than the Permitted Real Property Encumbrances.
(d) Seller has not received notice of condemnation or similar proceedings relating to the Knowledge of Peabody, Real Property or any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderpart thereof.
(e) Except for as disclosed on the Peabody PropertiesSurveys, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct no part of the Peabody Business Real Property contains or has is located within any options flood plain, navigable water or other body of water, tideland, wetland, marshland or any other area which is subject to acquire any fee interest special state, federal or leasehold interest in any municipal regulation, control or protection (other than zoning or other land use regulations customarily applicable to all real property for use primarily in or related primarily to or necessary for estate within the operation or conduct of the Peabody Businessapplicable jurisdiction).
(f) There Except as set forth on Schedule 3.12, there are no pending Persons in possession of, or, to Seller’s knowledge, claiming any possession, adverse or not, to or other interest in, any portion of Seller’s interest in the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property, other than Seller, whether as lessees, tenants at sufferance, trespassers or otherwise.
(g) All utility easementsExcept as set forth in Schedule 3.12, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements commitments have been made to any Peabody Properties encroach onto any adjacent property, except tenant for such encroachments as have not had repairs or improvements other than for normal repairs and would not reasonably be expected to have, individually or maintenance within one year after the Closing Date in excess of $500,000 in the aggregate, a material adverse effect on a particular item or improvements or finish-out work required by the tenants’ Contracts within one year after the Closing Date in excess of real property. The improvements to $500,000 in the Peabody Properties (aggregate, and no rents due under any of the current uses thereof) do not (i) violate set-back, building Contracts with tenants have been assigned or side lineshypothecated to, or encumbered by, any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesPerson.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Vanguard Health Systems Inc)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use Seller does not interfere with the operation of the Peabody Business. No Peabody Property is leased directly or subleased indirectly own, or have any rights to acquire, any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody Schedule 5.15(b) lists all of the real property and interests therein leased, subleased or a controlled Affiliate otherwise occupied or used by Seller (with all easements and other rights appurtenant to such property, the “Leased Real Property”). For each item of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Leased Real Property, (iiSchedule 5.15(b) good also lists the lessor, the lessee, the lease term, the lease rate, and valid title the lease, sublease, or other Contract pursuant to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included which Seller holds a possessory interest in the Peabody PropertiesLeased Real Property and all amendments, in the case renewals, or extensions thereto (each, a “Lease”). The leasehold interest of Seller with respect to each item of clauses (i), (ii) and (iii), Leased Real Property is free and clear of all Encumbrances (including Royalties)any Encumbrances, other than except Permitted Encumbrances. Seller is not a sublessor of, nor has assigned any lease covering, any item of Leased Real Property. Leasing commissions or other brokerage fees due from or payable by Seller with respect to any Lease have been paid in full.
(c) There are no outstanding options, The Leased Real Property constitutes all interests in real property currently occupied or used in connection with the Business. The Leased Real Property is not subject to any rights of first offer way, building use restrictions, title exceptions, variances, reservations or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach limitations of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice kind or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent propertynature, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building those that in the aggregate do not impair the current use or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions occupancy of the Leased Real Property; or (ii) with respect to each item of Leased Real Property, as set forth in the Lease relating to such item. To Seller’s Knowledge, all buildings, plants, structures and other improvements owned or used by Seller lie wholly within the boundaries of the Leased Real Property and do not encroach on upon the property, or otherwise conflict with the property rights, of any easements located on other Person. To Seller’s Knowledge, the Peabody PropertiesLeased Real Property complies with all Laws, including zoning requirements, and Seller has not received any notifications from any Governmental Body or insurance company recommending improvements to the Leased Real Property or any other actions relative to the Leased Real Property. Seller has delivered to Buyer a copy of each deed and other instrument (as recorded) by which Seller acquired any Leased Real Property and a copy of each title insurance policy, opinion, abstract, survey and appraisal relating to any Leased Real Property in its possession. Seller is not a party to or bound by any Contract (including any option) for the purchase or sale of any real estate interest or any Contract for the lease to or from Seller of any real estate interest not currently in possession of Seller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (American Tire Distributors Holdings, Inc.), Asset Purchase Agreement (American Tire Distributors Holdings, Inc.)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter SCHEDULE 3.24 sets forth a true, correct and complete list of all Real Property in which any Company Party or Subsidiary owns or holds a fee interest, which list includes, as to each parcel of the date hereof of (i) all Peabody Owned such Real Property, (ii) all Peabody Leases the legal owner, its common name, a legal description and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) name of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody any mortgagee or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancestrustee thereof.
(b) Peabody SCHEDULE 3.24 sets forth a true, correct and complete list of all Real Property leases, subleases or licenses pursuant to which any Company Party or Subsidiary is a controlled Affiliate lessor, lessee, sublessor, sublessee, licensor or licensee, in each case as amended through the date hereof, which list includes the street address, the identity of Peabodythe lessors, lessees, sublessors, sublessees, licensors or licensees, the term thereof (referencing applicable extension or renewal periods, the rent payment terms and the current use). The Real Property interests described or listed on SCHEDULE 3.24 constitute all of the interests in Real Property owned, leased or otherwise held for use by any Company Party or Subsidiary. With respect to each such lease, sublease and license, except as applicable, has set forth on SCHEDULE 3.24:
(i) good and indefeasible fee title to all Peabody Owned Real Propertythe knowledge of the Company Parties, there are no disputes, oral agreements or forbearance programs in effect as to any such lease, sublease or license; and
(ii) good and valid title to the leasehold estates no Company Party or Subsidiary has assigned, transferred, conveyed, mortgaged, deeded in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer trust or rights of first refusal to purchase any Peabody Property or any portion of or encumbered any interest therein.
(dc) Each To the knowledge of the Peabody Leases is Company Parties, all parking lots located on any Real Property subject thereto are in full force and effect and constitutes the legalcompliance with Applicable Laws, valid and binding obligations of Peabody or its Affiliates that are parties thereto andincluding, to the Knowledge of Peabodywithout limitation, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofzoning requirements, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except adequate for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct employees and business operations of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody BusinessCompany Parties and Subsidiaries.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Levine Leichtman Capital Partners Ii Lp), Securities Purchase Agreement (Interdent Inc)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter Schedule 5.25 sets forth a correct and complete list list, as of the date hereof Agreement Date, of (i) all Peabody Owned Real Property, (ii) all Peabody Leases Parent’s and (iii) all Mining Rights included in the Peabody PropertiesBuyer’s owned real property and leased real property. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody Parent or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of PeabodyBuyer, as applicable, has (i) good and indefeasible fee valid title to all Peabody Owned Real Property, (ii) good of its owned real property as of the Agreement Date and valid title to the leasehold estates estate (as lessee or sublessee) in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Propertiesof its leased real property set forth on Schedule 5.25, in the each case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances Liens, except for Permitted Liens and except for:
(including Royalties)i) Liens that secure Debt that is reflected on the consolidated balance sheet of Parent and its subsidiaries included in Parent’s annual report on Form 10-K for the fiscal year ended December 31, 2014;
(ii) zoning, building and other than Permitted Encumbrancesgenerally applicable land use restrictions; and
(iii) Liens that have been placed by a third party on the fee title of real property constituting Parent’s leased real property or real property over which Parent has easement rights, and subordination or similar agreements relating thereto.
(cb) There All leases and subleases for Parent’s or Buyer’s leased real property under which Parent or Buyer is a lessee or sublessee are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legalare enforceable, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties theretoin all material respects, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, subject to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunderBankruptcy and Equity Exception, and no event has occurred (including written notices of material default under any such lease or sublease have been sent or received by Parent, Buyer or their respective Affiliates during the failure to obtain any consent) whichperiod from January 1, with notice or lapse of time or both, would constitute a breach or default thereunder2012 through the Agreement Date.
(ec) Except for the Peabody PropertiesNone of Parent, neither Peabody nor Buyer or their respective Affiliates has received any written notice from any Government Authority asserting any violation or alleged violation of applicable Laws with respect to any of its Affiliates owns Parent’s of Buyer’s owned or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct leased properties that remains uncured as of the Peabody Business or has any options Agreement Date and that would reasonably be expected to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Businesshave a Buyer Material Adverse Effect.
(fd) There are no pending orNone of Parent, to the Knowledge Buyer or their respective Affiliates has received written notice of Peabody, threatened (x) any condemnation, eminent domain or similar proceeding affecting any portion of any of such buildings or premises or any access thereto, and to the Knowledge of Parent no such proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in contemplated or (y) any special assessment against or pending improvement liens to be made by any Peabody Owned Real PropertyGovernment Authority which could materially and adversely affect any of such buildings or premises.
(ge) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business Notwithstanding anything in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements this Agreement to the Peabody Properties (contrary, the representations and warranties made by Parent and Buyer in this Section 5.25 are the current uses thereof) do not (i) violate set-back, building sole and exclusive representations and warranties made regarding Parent’s or side lines, Buyer’s owned or leased properties or any applicable land use covenants, zoning regulations other real property matters pertaining to Parent or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesBuyer.
Appears in 2 contracts
Sources: Stock Purchase Agreement (General Electric Co), Stock Purchase Agreement (Neogenomics Inc)
Real Property. (a) Section 4.7(a3.19(a) of the Peabody Company Disclosure Letter sets forth a correct Schedule lists all real property owned by the Company and complete list as of its Subsidiaries (collectively, the date hereof of (i) all Peabody “Owned Real Property”). With respect to such owned real property, (ii) the Company or one of its Subsidiaries, as applicable, has good and marketable title to such owned real property, free and clear of all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its AffiliatesLiens, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody Section 3.19(b)(i) of the Company Disclosure Schedule contains a complete and accurate list of all of the existing leases or a controlled Affiliate subleases (collectively, the “Leases”) under which the Company or any of Peabodyits Subsidiaries uses or occupies or has the right to use or occupy any real property (such property, as applicable, has (i) good the “Leased Real Property” and indefeasible fee title to all Peabody collectively with the Owned Real Property, the “Real Property”) including, with respect to each Lease, the name of the lessor, master and sublessor, the date of the Lease and each amendment thereto, and the aggregate annual rental payable thereunder. The Company has made available to Parent true, correct and complete copies of all Leases (ii) good including all material modifications, amendments and supplements). The Company and/or its Subsidiaries have and own valid title to the leasehold estates in all Peabody the Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Leased Real Property, free and clear of all Encumbrances (including Royalties), Liens other than Permitted Encumbrances.
(c. Section 3.19(b)(ii) There are no outstanding options, rights of first offer the Company Disclosure Schedule contains a complete and accurate list of all real property leased or rights of first refusal to purchase any Peabody Property subleased by the Company or any portion of or its Subsidiaries to any interest therein.
(d) Each Person including, with respect to each such Lease, the name of the Peabody master lessor, sublessor and sublessee, the date of the Lease and each amendment thereto, and the aggregate annual rental payable thereunder. The Leases is are each in full force and effect and constitutes neither the legalCompany nor any of its Subsidiaries is in breach of or default under, valid and binding obligations or has received written notice of Peabody any breach of or its Affiliates that are parties thereto default under, any Lease, and, to the Knowledge knowledge of Peabodythe Company, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, that with notice or lapse of time or both, both would constitute a breach or default thereunder.
(e) Except for thereunder by the Peabody Properties, neither Peabody nor Company or any of its Affiliates owns Subsidiaries or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent propertyparty thereto, except for such encroachments as have not had failure to be in full force and effect or such breaches or defaults that would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item Company Material Adverse Effect.
(c) Neither the Company nor any of real propertyits Subsidiaries owes brokerage commissions or finders fees with respect to any Real Property. The improvements Company and its Subsidiaries currently occupy all of the Real Property for the operation of their business. Neither the Company nor any Subsidiary has transferred or assigned any interest in any Lease, nor has the Company or any Subsidiary subleased or otherwise granted rights of use or occupancy of any of the premises described therein to any other person or entity, except as described in Section 3.19(b)(ii) of the Company Disclosure Schedule.
(d) As of the date of this Agreement, to the Peabody Properties Company’s knowledge, the landlord under each Lease has complied with all of the requirements, conditions, representations, warranties and covenants of the landlord thereunder, including the timely completion of construction of the leased premises in a good and workmanlike manner and otherwise in accordance with the Leases.
(and e) There is no pending or, to the current uses Company’s knowledge, threatened condemnation or similar proceeding affecting any Owned Real Property or any portion thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or special assessments that are reasonably likely to materially and adversely affect the Owned Real Property.
(iif) encroach on The operations of the Company and any easements located of its Subsidiaries on the Peabody PropertiesOwned Real Property, including the improvements thereon, does not violate in any material respect any applicable Legal Requirement, and any such non-violation is not dependent on so-called non-conforming use exceptions.
(g) To the knowledge of the Company, each Real Property and all of its operating systems are in good operating condition and repair (subject to normal wear and tear) and is suitable for the conduct of the business of the Company and its Subsidiaries as presently conducted.
(h) Neither the Company nor any Subsidiary has received any notice from any insurance company of any defects or inadequacies in any Owned Real Property or any part thereof which could materially and adversely affect the insurability of such property or the premiums for the insurance thereof, nor has any notice been given by any insurer of any such property requesting the performance of any repairs, alterations or other work with which compliance has not been made.
Appears in 2 contracts
Sources: Merger Agreement (Autodesk Inc), Merger Agreement (Moldflow Corp)
Real Property. (a) Section 4.7(a) SCHEDULE 2.12 includes a list of all real property leased by the Peabody Disclosure Letter sets forth a correct and complete list as of Company at the date hereof of (i) all Peabody Owned the "Real Property"), (ii) and all Peabody Leases other real property, if any, used by the Company in the conduct of its business. The Company owns no real property. True, complete and (iii) correct copies of all Mining Rights leases and agreements with respect to Real Property leased by the Company have been delivered to LandCARE, and an indication as to which such properties, if any, were formerly owned, by the Stockholder or any affiliates of the Company or the Stockholder is included in SCHEDULE 2.12. All leases relating to Real Property leased by the Peabody Properties. Section 4.7(a) Company from the Stockholder or any affiliate of the Peabody Disclosure Letter also identifies Stockholder have been terminated. Except as set forth on SCHEDULE 2.12, all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights leases included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There on SCHEDULE 2.12 are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, constitute valid and binding obligations agreements of Peabody or its Affiliates that are the parties (and their successors) thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amendedThere are no leases, modified tenancy agreements, easements, covenants, restrictions or supplemented. No any other instruments, agreements or arrangements which create in or confer on any party, other than the Company, the right to occupy or possess all or any portion of the Real Property or create in or confer on any such party to any Peabody Lease has repudiated any provision thereofright, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, title or interest in or to the Knowledge Real Property or any portion thereof or any interest therein; no party other than the Company occupies or possesses the Real Property or any portion thereof; there is legal and adequate ingress and egress between each tract of PeabodyReal Property and an adjacent (or, if none, the closest) public roadway; the Real Property is properly zoned in order to allow its current use in the Company's businesses; and there are no claims or demands pending or threatened by any party against the Real Property which, if valid, would create in, or confer on, any party other party theretothan the Company, is in breach of any of its respective obligations thereunderright, and no event has occurred (including the failure to obtain any consent) which, with notice title or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily interest in or related primarily to the Real Property or necessary for any portion thereof. None of the buildings, structures or improvements described on SCHEDULE 2.12, or the operation or conduct maintenance thereof as now operated or maintained, contravenes any zoning ordinance or other administrative regulation or violates any restrictive covenant or any provision of law, the effect of which would materially interfere with or prevent their continued use for the purposes for which they are now being used or would adversely affect the value thereof or the interest of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody BusinessCompany therein.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Merger Agreement (Landcare Usa Inc), Merger Agreement (Landcare Usa Inc)
Real Property. (a) Section 4.7(aThe applicable Loan Party shall provide to Agent with respect to each Material Real Property, promptly and in any event within one hundred and twenty (120) days (or such longer period as Agent (acting at the direction of the Peabody Disclosure Letter sets forth a correct and complete list as Required Lenders) may agree in its reasonable discretion) after the later of the Closing Date and the date hereof of acquisition thereof (each, a “Mortgaged Property” and together, the “Mortgaged Properties”) (i) all Peabody Owned Real a Mortgage duly executed and delivered by the record owner of such Mortgaged Property; provided that (A) for any Mortgaged Property located in a jurisdiction which imposes a tax, fee or other charge on the recording of a security instrument, the Mortgage shall be in an amount equal to the fair market value of such Mortgaged Property or such other amount as may be agreed by such Loan Party and the Agent (at the direction of Required Lenders) and (B) for any Mortgaged Property in which Borrower holds a leasehold interest, a memorandum of lease containing a description of the leased premises acceptable to the recording office in the county where the Mortgaged Property is located shall have been recorded, (ii) all Peabody Leases a title insurance policy for each Mortgaged Property or the equivalent or other form (if applicable) available in each applicable jurisdiction in an amount not to exceed the fair market value of such Mortgaged Property as reasonably determined by the Borrower and Agent (acting at the direction of the Required Lenders) (collectively, the “Mortgage Policies”) insuring the Lien of each such Mortgage as a valid Lien on the Mortgaged Property described therein, free of any other Liens except Permitted Liens, together with such endorsements, coinsurance and reinsurance as Agent (acting at the direction of the Required Lenders) may reasonably request, (iii) all Mining Rights included a completed “Life of Loan Federal Emergency Management Agency Standard Flood Hazard Determination” with respect to each Mortgaged Property (together with a notice about Special Flood Hazard Area status and flood disaster assistance duly executed by the Borrower and each of its Subsidiaries relating thereto) and if any improvements on any Mortgaged Property are located in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used an area designated as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature a Special Flood Hazard Area, evidence of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, Flood Insurance as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (imay be required under Section 7.4(c), (iiiv) either a current ALTA survey (or survey equivalent, such as an Express Map) in form and substance reasonably satisfactory to Agent, certified to Agent and to the issuer of the Mortgage Policy with respect thereto by a professional surveyor licensed in the state in which such Mortgaged Property is located or a prior survey (or survey equivalent, such as an Express Map), together with an affidavit from the record owner of such Mortgaged Property certified to the issuer of the Mortgage Policy with respect thereto that there has been no material change to such Mortgaged Property as shown thereon since the date thereof, if applicable, all in form and substance reasonably satisfactory to the issuer of the Mortgage Policy to remove the standard printed survey exception from any Mortgage Policy and (iii), free and clear v) a legal opinion of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each counsel regarding the enforceability of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, Mortgage with respect to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties theretoMortgaged Property, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party form and substance reasonably satisfactory to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (Agent and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesRequired Lenders.
Appears in 2 contracts
Sources: Loan, Guaranty and Security Agreement (Terawulf Inc.), Loan, Guaranty and Security Agreement (Terawulf Inc.)
Real Property. (a) Section 4.7(a3.11(a) of the Peabody Sellers’ Disclosure Letter sets Schedule lists all real property and all interests in real property, in each case that is leased or occupied by the Company or that the Company has the right to occupy, now or in the future (each, whether written or oral, being a “Real Property Lease” and any real property leased or occupied under a Real Property Lease being “Leased Real Property”). Except as set forth a correct and complete list as on Section 3.11(a) of the date hereof of Sellers’ Disclosure Schedule (i) all Peabody the “Owned Real Property”), (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its AffiliatesCompany does not own, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted ever owned, any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody or a controlled Affiliate All of Peabodythe land, as applicablebuildings, has (i) good structures and indefeasible fee title to all Peabody other improvements used by the Company in the conduct of its business are included in the Leased Real Property and Owned Real Property. Except for the Real Property Leases, there is no lease (iiincluding sublease) good and valid title or occupancy agreement in effect with respect to any Leased Real Property. There is no pending or, to the leasehold estates Knowledge of each Seller, Threatened Proceeding regarding condemnation or other eminent domain Proceeding affecting any Leased Real Property or Owned Real Property or any sale or other disposition of any Leased Real Property or Owned Real Property in lieu of condemnation. No Leased Real Property or Owned Real Property has suffered any material damage by fire or other casualty that has not been repaired and restored in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrancesmaterial respects.
(c) There are The Company has a valid leasehold interest under each Real Property Lease, subject to any Enforcement Limitation. The Company is not in default or otherwise in breach under any Real Property Lease and, to the Knowledge of each Seller, no outstanding optionsother party is in default or otherwise in breach thereof. To the Knowledge of each Seller, rights no party to any Real Property Lease has exercised any termination right with respect thereto. The Company has provided to Buyer a true, correct and complete copy of first offer or rights of first refusal to purchase any Peabody each Real Property or any portion of or any interest therein.
(d) Lease. Each of the Peabody Leases Real Property Lease is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to entire agreement between the Knowledge of Peabody, the other parties thereto, enforceable against Peabody and there are no other agreements, whether oral or written, between such Affiliates and, to parties. All rent and other sums and charges payable by the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplementedCompany as tenant thereunder are current. No party to any Peabody Real Property Lease has repudiated any provision thereofthereof and there is no dispute, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, oral agreement or forbearance program in effect with respect to any Real Property Lease. The Company has good title to the Knowledge of Peabody, any leasehold estate and other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct rights of the Peabody Business or tenant with respect to the property affected by each Real Property Lease, free and clear of all Encumbrances, except any Permitted Encumbrance. The Company has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending not received written or, to the Knowledge of Peabodyeach Seller, threatened condemnationoral notice from any insurance company that such insurance company will require any alteration to any Leased Real Property for continuance of a policy insuring such property or the maintenance of any rate with respect thereto (other than any notice of alteration that has been completed), eminent domain or similar proceedings affecting to the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving extent that such alteration is the Peabody Properties are legally enforceable to permit the operation responsibility of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesCompany.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Midas Medici Group Holdings, Inc.), Asset Purchase Agreement (Datalink Corp)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter 3.11.1 Schedule 3.11 sets forth a correct list of all real property owned by the Company (the “Owned Real Property”) and complete list as of describes each leasehold interest in real property leased, subleased by, licensed or with respect to which a right to use or occupy has been granted to or by the date hereof of Company (i) all Peabody such leased Real Property together with the Owned Real Property, the “Real Property”), and specifies the lessor or lessors of such leased property, and identifies each lease or any other Contractual Obligation under which such property is leased (ii) all Peabody Leases the “Real Property Leases”). Except as described on Schedule 3.11 there are no written or oral subleases, licenses, concessions, occupancy agreements or other Contractual Obligations granting to any other Person the right of use or occupancy of the Real Property and there is no Person (iii) all Mining Rights included in other than the Peabody Properties. Section 4.7(aCompany and any lessor(s) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as leased Real Property) in possession of the date hereof by other businesses of Peabody leased Real Property.
3.11.2 The Company is not obligated to pay any leasing or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation brokerage commission as a result of the Peabody BusinessContemplated Transactions. No Peabody Property There is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of PeabodyCompany’s Knowledge, threatened condemnation, eminent domain or similar proceedings taking affecting any of the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property. The Company has delivered to the Investors true, correct and complete copies of the Real Property Leases including all amendments, modifications, notices or memoranda of lease thereto and all estoppel certificates or subordinations, non-disturbance and attornment agreements related thereto.
(g) All utility easements3.11.3 None of the Facilities currently existing on the Real Property encroaches upon, rights and any Facilities under construction on the Real Property will not encroach upon, the real property of access any other Person. No facility of any other Person encroaches upon the Real Property. Each Facility is supplied with utilities and other easements services (including gas, electricity, water, drainage, sanitary sewer, storm sewer, fire protection and similar rights serving the Peabody Properties are legally enforceable to permit telephone) necessary for the operation of such Facility as the Peabody Business in substantially the manner in which the Peabody Business same is currently operated or currently proposed to be operated. Other than Permitted EncumbrancesEach parcel of Real Property abuts on, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregatehas direct vehicular access to, a material adverse effect on public road, or has access to a particular item public road via a permanent, irrevocable appurtenant easement benefiting the parcel of real property. The improvements Real Property, in each case, to the Peabody Properties (extent necessary for the conduct of the Business.
3.11.4 The Real Property and its current use, occupancy and operation by the Company and the current uses thereof) Facilities located thereon do not (ia) constitute a nonconforming use under any applicable building, zoning, subdivision or other land use or similar Legal Requirements or (b) otherwise violate set-backor conflict with any covenants, building conditions, restrictions or side linesother Contractual Obligations, including the requirements of any applicable Encumbrances thereto. The Company (a) is not in violation of any material Legal Requirement relating to Real Property, including setback requirements, zoning restrictions and ordinances, building, life, access, safety, health and fire codes and ordinances affecting the Real Property, or (b) has not received notice of any eminent domain, condemnation or similar proceeding pending or, to the Company’s Knowledge, threatened, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesGovernment Order relating thereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (AGA Medical Holdings, Inc.), Stock Purchase Agreement (AGA Medical Holdings, Inc.)
Real Property. (a) Section 4.7(aThe Leased Real Property shown on Schedule 3.11(a) of the Peabody Contributor Disclosure Letter sets forth Schedule is all the Leased Real Property (including leased propane storage facilities and terminals) of the Propane Group Entities for which the monthly rent exceeds $1,800. Schedule 3.11(a) of the Contributor Disclosure Schedule shows for each such Leased Real Property (i) the street address and (ii) the current use of such parcel of Leased Real Property.
(b) The Owned Real Property shown on Schedule 3.11(b) of the Contributor Disclosure Schedule is all the Owned Real Property (including owned propane storage facilities and terminals) of the Propane Group Entities valued by the applicable Propane Group Entity at more than $750,000. Schedule 3.11(b) of the Contributor Disclosure Schedule shows for each such Owned Real Property (i) the street address and (ii) the current use of such parcel of Owned Real Property.
(c) All of the Owned Real Property is owned by a correct Propane Group Entity, free and clear of all Liens, other than Permitted Liens.
(d) Assuming good fee title vested in the applicable landlord, a Propane Group Entity has a valid and binding leasehold interest in each Leased Real Property, free and clear of all Liens, other than Permitted Liens. True and complete list copies of all leases for the Leased Real Property identified on Schedule 3.11(a) of the Contributor Disclosure Schedule have been made available to Acquirer.
(e) Schedule 3.11(e) of the Contributor Disclosure Schedule lists all of the written lease agreements pursuant to which a Propane Group Entity is a landlord or sublandlord under a lease with monthly rental payments greater than $1,800 per month at any of the material Owned Real Property or Leased Real Property. As of the Execution Date, to the Contributor Parties’ Knowledge, no such Propane Group Entity has received any written notice of default from the tenant or subtenant under any such lease or sublease nor, to the Contributor Parties’ Knowledge, is the tenant or subtenant under any such lease or sublease in default beyond all applicable grace, notice and cure periods.
(f) There is no pending or, to the Contributor Parties’ Knowledge, threatened condemnation, expropriation, requisition (temporary or permanent) or similar proceeding with respect to any Transferred Site as of the date hereof Execution Date, or, to the Contributor Parties’ Knowledge, has been threatened in writing.
(g) The Propane Group Entities have made available to Acquirer true, legible and complete copies of each deed for each parcel of Owned Real Property and to the extent such documents are in the possession or control of the Contributor Parties, all the title insurance policies, title reports, surveys, certificates of occupancy, environmental reports and audits, appraisals, permits, other Liens, title documents related to the Real Property. To the Knowledge of the Contributor Parties, (i) all Peabody Owned a Propane Group Entity is in peaceful and undisturbed possession of each parcel of Real Property, (ii) all Peabody Leases there are no contractual restrictions that preclude or restrict the ability to use the Real Property for the purposes for which it is being used as of the Execution Date, and (iii) all Mining Rights included in existing water, sewer, steam, gas, electricity, telephone, cable, fiber optic cable, internet access and other utilities required for the Peabody Propertiesconstruction, use, occupancy, operation and maintenance of the Real Property are adequate for the conduct of the business as it is conducted as of the Execution Date. Section 4.7(aTo the Knowledge of the Contributor Parties, there are no material latent defects or material adverse physical conditions affecting the Real Property or any of the facilities, buildings, structures, erections, improvements, fixtures, fixed assets and personalty of a permanent nature annexed, affixed or attached to, located on or forming part of the Real Property. Except as shown on Schedule 3.11(e) of the Peabody Contributor Disclosure Letter also identifies all Peabody Properties that also are used as Schedule, (i) the Propane Group Entities have not leased any parcel or any portion of any parcel of Owned Real Property to any other Person and no other Person has any rights to the use, occupancy or enjoyment thereof pursuant to any lease, license, occupancy or other agreement for which the monthly rental payments exceed $1,800, and (ii) no Propane Group Entity has assigned its interest under any lease listed in Schedule 3.11(a) of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased Contributor Disclosure Schedule to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Contribution and Redemption Agreement (Energy Transfer Partners, L.P.), Contribution and Redemption Agreement (Amerigas Partners Lp)
Real Property. (a) Section 4.7(a4.13(a) of the Peabody Company Disclosure Letter sets forth a correct true and complete list as of all real property and interests in real property owned in fee simple by the date hereof Company or any of its Subsidiaries (i) all Peabody the “Owned Real Property”), (ii) all Peabody Leases and (iii) all Mining Rights included in together with the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature street address of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property. Except as has not had, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item Company Material Adverse Effect, the Company and its Subsidiaries have good and marketable title (or good and indefeasible title with respect to Owned Real Property in Texas), in fee simple, free and clear of real property. The improvements all Liens other than Permitted Liens, to the Peabody Properties Owned Real Property (including the buildings, structures and other improvements thereon and fixtures thereto).
(b) Section 4.13(b) of the current uses thereof) do Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of each lease, and any material licenses, subleases and occupancy agreements (the “Real Property Leases”), with respect to all property leased, licensed, subleased or otherwise used or occupied by the Company or its Subsidiaries (the “Leased Real Property”), together with the street address of such Leased Real Property. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) violate set-backthe Company or one of its Subsidiaries has a good and valid leasehold estate in the Leased Real Property, building or side linesfree and clear of all Liens, or any applicable land use covenantsexcept for Permitted Liens, zoning regulations or similar enforceable restrictions or and (ii) encroach on the Real Property Leases are legal, valid, binding and in full force and effect, subject to proper authorization and execution of such lease by the other party thereto and the Enforceability Exceptions. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any easements located of its Subsidiaries has received written notice that it is in default in any material respect under any Real Property Lease and no event or condition has occurred since the Lookback Date, or currently exists, which constitutes or could constitute (with or without notice, the happening of any event and/or the passage of time) a default or breach under any Real Property Lease on the Peabody Propertiespart of the Company or its applicable Subsidiary or, to the Knowledge of the Company, the other party thereto.
Appears in 2 contracts
Sources: Merger Agreement (Chuy's Holdings, Inc.), Merger Agreement (Darden Restaurants Inc)
Real Property. (a) Neither of the Acquired Entities owns any real property. Section 4.7(a2.13(a) of the Peabody Seller Disclosure Letter Schedule sets forth a correct list of all leases, subleases, grants or licenses with respect to real property (each, a “Real Property Lease”) pursuant to which any Acquired Entity is a party, together with corresponding street address of all such leased real property (collectively, the “Leased Real Property”). A true and complete list copy of each written Real Property Lease (including all modifications, amendments, renewals and extensions thereto), and a written summary of the material terms of any oral Real Property Lease, in each case, as of in effect on the date hereof, has been made available prior to the date hereof to Buyer and there have been no amendments, modifications or extensions of (i) all Peabody Owned such Real Property, (ii) all Peabody Property Leases and (iii) all Mining Rights included in the Peabody Properties. other than those set forth on Section 4.7(a2.13(a) of the Peabody Seller Disclosure Letter also identifies Schedule. The Leased Real Property constitutes all Peabody Properties that also are real property used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such held for use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the Acquired Entities in the operation of the Peabody BusinessActon Business as currently operated. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted EncumbrancesThe Acquired Entities have a valid leasehold interest in each parcel of Leased Real Property.
(b) Peabody or a controlled Affiliate With respect to each Real Property Lease, and except as set forth on Section 2.13(b) of Peabody, as applicable, has the Seller Disclosure Schedule:
(i) good each Real Property Lease is legal, valid and indefeasible fee title binding on, and enforceable against, the Acquired Entity party thereto and, to Seller’s Knowledge, each other party thereto, enforceable in accordance with its terms;
(ii) no Acquired Entity has given or received any written notice of default under any Real Property Lease, and no default by any Acquired Entity or, to the Knowledge of the Seller, the other party or parties thereto, is continuing under any of the Real Property Leases;
(iii) the Acquired Entity party to each Real Property Lease has not had its possession and quiet enjoyment of the Leased Real Property leased pursuant to such Real Property Lease materially disturbed and, to the Knowledge of the Seller, there are no material disputes with respect to any of the Real Property Leases;
(iv) each Acquired Entity, and, to the Seller’s Knowledge, each of the other parties thereto, has performed in all Peabody Owned material respects all material obligations required to be performed by it under each Real Property Lease;
(v) no security deposit or portion thereof deposited with respect to such lease has been applied in respect of a breach or default under such lease which has not been re-deposited in full;
(vi) no Acquired Entity is a party to any written or oral subleases, assignments, licenses, or other contracts granting to any Person other than an Acquired Entity the right to use or occupy any Leased Real Property, (ii) good and valid title to nor has such Acquired Entity collaterally assigned or granted any other security interest in any of the leasehold estates in all Peabody Real Property Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), or any interest therein other than Permitted Encumbrances.security interests to be released upon repaying of Indebtedness at the Closing; and
(cvii) There are no Acquired Entity is a party to any outstanding options, rights of first offer options or rights of first refusal to purchase any Peabody Property all or any a portion of or any interest thereinsuch Leased Real Property which is subject to a Real Property Lease.
(dc) Each To Seller’s Knowledge, (i) there are no material physical, structural or mechanical defects in any of the Peabody Leases is in full force and effect and constitutes buildings, building systems or improvements on any of the legal, valid and binding obligations Leased Real Property which materially impair the use of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofLeased Real Property, and neither Peabody (nor its Affiliates that are parties theretoii) all such buildings, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, building systems and no event has occurred improvements (including the failure to obtain any consentroof, HVAC, electrical, plumbing, sprinklers and fire safety systems) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except are in good operating condition and repair and are adequate for the Peabody Propertiesuses to which they are being put. Except as disclosed on Section 2.13(c) of the Seller Disclosure Schedule, within the last 12 months, neither Peabody Seller nor any Acquired Entity has received written notice of its Affiliates owns any pending or leases any real property used threatened in writing condemnation or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain proceedings or similar proceedings their local equivalent affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected or relating to result in any special assessment against any Peabody Owned such Leased Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (WillScot Corp)
Real Property. (a) Section 4.7(aSchedule 2.10(a) of the Peabody Disclosure Letter Schedule sets forth a correct true and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included real property owned by Seller that is used in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with necessary for the operation of the Peabody BusinessBusiness as currently conducted (the “Owned Real Property”), including with respect to each property, the address, location and use. No Peabody Property is leased or subleased With respect to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate each parcel of Peabody, as applicable, has Real Property: (i) the Seller has good and indefeasible valid fee simple title to all Peabody each parcel of Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances Liens other than Permitted Liens; (including Royalties)ii) the Seller is in possession of each parcel of Owned Real Property and there are no leases, licenses, occupancy agreements or any other similar arrangement pursuant to which any third party is granted the right to use any Owned Real Property, other than Permitted Encumbrances.
as set forth on Schedule 2.10(a) of the Disclosure Schedule; (ciii) There there are no outstanding options, options or rights of first offer or rights right of first refusal in favor of any third party to purchase any Peabody Owned Real Property or any portion of thereof or any interest therein; and (iv) there are no condemnation or eminent domain proceedings with respect to any Owned Real Property.
(db) Schedule 2.10(b) of the Disclosure Schedule sets forth each interest in real property leased by Seller (together with all rights, title and interest of Seller in and to leasehold improvements relating thereto, including, but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “Leased Real Property”, collectively with the Owned Real Property, the “Real Property”) and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether written or oral), including all amendments, extensions, renewals, guaranties and other agreements with respect thereto, or any other arrangement under which such property is leased (the “Real Estate Leases”). Seller has delivered to Purchaser a true and complete copy of each Real Estate Lease. Each of the Peabody Real Estate Leases is valid, binding, enforceable and in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofeffect, and neither Peabody (nor its Affiliates that are parties theretothe Seller enjoys peaceful, as quiet and undisturbed possession of the case may be) nor, to the Knowledge of Peabody, any other party thereto, Leased Real Property. Seller is not in breach of or default under any of its respective obligations thereunderthe Real Estate Leases, and no event has occurred (including the failure to obtain any consent) occurred, or circumstance exists which, with notice or lapse the delivery of notice, passage of time or both, would constitute such a breach or default, and Seller, as applicable, has paid all rent due and payable under each of the Real Estate Leases. The Seller has not received nor given any notice of any default thereunder.
(e) Except for the Peabody Propertiesor event that with notice or lapse of time, neither Peabody nor or both, would constitute a default by Seller under any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily the Real Estate Leases and, to or necessary for the operation or conduct knowledge of the Peabody Business Seller, no other party is in default thereof, and no party to any of the Real Estate Leases has exercised any termination rights with respect thereto. Seller has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof. Seller has not pledged, mortgaged or otherwise granted any options to acquire any fee interest or Lien on its leasehold interest in any real property for use primarily in or related primarily to or necessary Leased Real Property. The Leased Real Property is adequate for the operation or conduct needs of the Peabody Business.
(f) Business as currently conducted. None of the buildings, plant or structures on any Leased Real Property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are, individually and in the aggregate, immaterial. There are is no pending or, to the Knowledge knowledge of Peabodythe Seller, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected proceeding with respect to result in any special assessment against any Peabody Owned Leased Real Property.
(gc) All utility easementsThe Seller has not received any written notice of (i) violations of building codes and/or zoning ordinances or other governmental or regulatory laws affecting the Real Property, rights of access and (ii) existing, pending or threatened condemnation proceedings affecting the Real Property, or (iii) existing, pending or threatened zoning, building code or other easements and moratorium proceedings, or similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in matters which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not could reasonably be expected to have, individually adversely affect the ability to operate the Real Property as currently operated and as required to satisfy the needs of the Business. Neither the whole nor any material portion of any Real Property has been damaged or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do destroyed by fire or other casualty which has not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesbeen fully restored.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOSTON OMAHA Corp), Asset Purchase Agreement (BOSTON OMAHA Corp)
Real Property. Schedule 2.1(d) contains a true and complete description (a) Section 4.7(aincluding a legal description of Owned Property) of all land, leaseholds, licenses, rights of way and access, and interests of every kind and description in and to real property, buildings, structures, towers, antennas, fixtures, signage, improvements, and appurtenances that are owned, leased or held by the Peabody Disclosure Letter sets forth a correct and complete list Entravision Parties as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included for use principally in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere connection with the operation of the Peabody BusinessEntravision Stations. No Peabody Property is The Entravision Parties have fee simple title to the real property described on Schedule 2.1(d) as being so owned (the “Owned Property”). The Entravision Parties lease, as lessee, the premises described on Schedule 2.1(d) as being so leased or subleased to any third party(the “Leased Property” and with the Owned Property, and Peabody has not granted any third party any licensethe “Real Property”). The Entravision Parties lease, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesas lessor, the premises described on Schedule 2.1(d) as being so leased.
(ba) Peabody or a controlled Affiliate of PeabodyAs to the Owned Property, as applicablethe Entravision Parties have good, has (i) good valid and indefeasible marketable fee simple title to such real property and all Peabody Owned Real Propertybuildings, (ii) good structures, towers, antennas, fixtures, signage, improvements, and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)appurtenances thereon, free and clear of all Encumbrances (including Royalties), Liens other than Permitted EncumbrancesLiens. Included as Schedule 3.12(a) is a copy of all title insurance policies in favor of the Entravision Parties or any Affiliate thereof or any mortgagee of any such Person applicable to the Owned Property, if any.
(b) As to the Leased Property, the Entravision Parties have good title to their interest in such Leased Property, free and clear of all Liens other than Permitted Liens. All of the leases with respect to such Leased Property are set forth on Schedule 3.15, and the Entravision Parties are, and have been since the beginning of the applicable lease, in peaceable possession of such Leased Property and have enforceable rights to non-disturbance and quite enjoyment therein.
(c) There The Real Property and all buildings, structures, towers, antennas, fixtures, signage, improvements, and appurtenances thereto, and the roof, walls and other structural components which are no outstanding optionspart thereof, and the heating, air conditioning, plumbing, electrical and other mechanical facilities thereof, are (1) in good operating condition and repair (reasonable wear and tear excepted), (2) in compliance in all material respects with applicable zoning Laws and the building, health, fire and environmental protection Laws, (3) without structural defects, and (4) without need for any repairs (other than normal routine maintenance) in order to maintain them in good condition and repair. All necessary utility services for the operation of the Sale Assets, including but not limited to electric power and natural gas service, are available to the Real Property. The Real Property has adequate pedestrian and vehicular access by way of public access or valid easements or right of ways and all such rights of first offer have been recorded as necessary with the appropriate Governmental Entity. All buildings, structures, towers, antennas, fixtures, signage, improvements, and appurtenances used in connection with the Entravision Stations are located entirely on the Real Property, including, without limitation, any guy wires or rights of first refusal to purchase any Peabody Property or any portion of or any interest thereinground system wires associated with the Entravision Stations’ antenna towers.
(d) Each The Entravision Parties have not received any notice of condemnation or of eminent domain proceedings or negotiations for the Peabody Leases is purchase in full force and effect and constitutes the legal, valid and binding obligations lieu of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach condemnation of any of its respective obligations thereunderthe Real Property or the improvements thereto, and no event has occurred (including the failure to obtain any consent) which, with notice condemnation or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain proceedings or similar proceedings affecting negotiations have been commenced or threatened in writing in connection with the Peabody Properties. There are no existing public Real Property or the improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Propertythereto.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Univision Communications Inc), Asset Purchase Agreement (Entravision Communications Corp)
Real Property. (a) Section 4.7(aSchedule 5.11(a)(i) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof addresses and the fee owner of all real property owned by the Company Entities (i) the “Owned Real Property”). The Company and its Subsidiaries, as applicable, have good fee simple and marketable fee title to all Peabody of the Owned Real Property free and clear of any Lien (other than Permitted Liens). Except as set forth on Schedule 5.11(a)(ii), none of the Company Entities have leased, licensed or otherwise granted to any Person the right to use or occupy the Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There there are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody or lease the Owned Real Property or (or, in each case, any portion of thereof or any interest therein).
(db) Each Schedule 5.11(b) sets forth a correct list of all Contracts pursuant to which any Company Entity leases, subleases, licenses or otherwise occupies any real property as tenant, subtenant, licensee or otherwise (the Contracts required to be listed on Schedule 5.11(b), each, a “Real Property Lease”), together with the address of the Peabody Leases related property (the “Leased Real Property” and, together with the Owned Real Property, the “Company Real Property”). The Company has provided to Purchaser a complete and correct copy of each Real Property Lease, including all amendments, modifications, exhibits and schedules. The applicable Company Entity has a valid leasehold interest under each Real Property Lease, free and clear of any Lien (other than Permitted Liens). Each such Real Property Lease is in full force and effect and constitutes the a legal, valid valid, and binding obligations obligation of Peabody or its Affiliates that are parties thereto the Company Entities and, to the Knowledge of PeabodyCompany’s Knowledge, the other party or parties thereto, enforceable against Peabody or such Affiliates the Company Entities and, to the Knowledge of PeabodyCompany’s Knowledge, the such other party or parties thereto, in accordance with its terms, subject to the Enforceability Limitations. The Company Entities have performed and complied in all material respects with all of their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofcovenants and obligations under each Real Property Lease, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) no Company Entity nor, to the Knowledge of PeabodyCompany’s Knowledge, any other party theretoto a Real Property Lease, is in in, or is alleged to be in, breach of any of its respective obligations thereunderor default under such Real Property Lease, and no nor has there occurred an event has occurred (including the failure to obtain any consent) whichor condition that, with notice or lapse the passage of time or giving of notice (or both), would constitute such a breach or default thereunder.
(e) Except for the Peabody Propertiesdefault. The Company does not sublease, neither Peabody nor as sublessor, any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct portion of the Peabody Business or has Leased Real Property to any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for other Person. To the operation or conduct of the Peabody Business.
(f) There Company’s Knowledge, there are no pending or, material disputes with respect to the Knowledge of Peabody, threatened condemnation, eminent domain any lease or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in other agreement for any special assessment against any Peabody Owned Leased Real Property.
(gc) All utility easements, rights of access and other easements and similar rights serving To the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted EncumbrancesCompany’s Knowledge, there are no encroachments upon the Peabody Properties and no improvements to condemnation proceedings pending, threatened or proposed against any Peabody Properties encroach onto any adjacent propertyCompany Entity and, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-backCompany’s Knowledge, building there is no existing plan or side lines, study by any governmental body or any applicable land other Person that challenges or otherwise adversely affects the continuation of the use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on operation of the Peabody PropertiesCompany Real Property.
Appears in 2 contracts
Sources: Merger Agreement (Zurn Water Solutions Corp), Merger Agreement (Zurn Water Solutions Corp)
Real Property. (a) Section 4.7(aNeither the Company nor any Target Company owns any real property or interests in real property. Schedule 4.15(a) of the Peabody Disclosure Letter sets forth a correct and complete list of all real property and interests in real property leased by any Target Company (collectively, “Company Real Properties”) as lessee, together with a list of all leases, lease guarantees, agreements and documents related thereto, including all amendments, terminations and modifications thereof (collectively, the “Company Real Property Leases”), and including the name of the lessor or lessee, the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as lease, and a description of the date hereof by other businesses of Peabody or its Affiliates current annual rent and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Businessterm under each Company Real Property Lease. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) The Target Companies have good and indefeasible marketable fee title to all Peabody Company Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances Liens of any nature whatsoever, except for Permitted Liens. The Company Real Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the business of the Target Companies and which are necessary for the continued operation of the business of the Target Companies as the business is currently conducted. All of the Company Real Properties and buildings, fixtures and improvements thereon are suitable, sufficient and appropriate in all respects for their current and contemplated uses. None of the improvements located on the Company Real Properties constitute a legal non-conforming use or otherwise require any special dispensation, variance or special permit under any Laws. The Company has delivered to OAC true, correct and complete copies of the Company Real Property Leases, together with all amendments, modifications or supplements, if any, thereto. The Company Real Properties are not subject to any subleases, sublicenses, occupancy or rights of occupancy by any third parties.
(including Royalties)b) Each Target Company has a valid, binding and enforceable leasehold interest under each of the Company Leased Properties under which it is a lessee, free and clear of all Liens other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Liens. Each of the Peabody Company Real Property Leases is in full force and effect effect. No Target Company is in default under any Company Real Property Lease, and constitutes no event has occurred and no circumstance exists which, if not remedied, and whether with or without notice or the legalpassage of time or both, valid and binding obligations would result in such a default. No Target Company has received or given any notice of Peabody any default or its Affiliates event that are parties thereto with notice or lapse of time, or both, would constitute a default by a Target Company under any of the Company Real Property Leases and, to the Knowledge of Peabodythe Company, the no other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, party is in accordance with their respective terms. No Peabody Lease has been amended, modified or supplementeddefault thereof. No party to any Peabody Company Real Property Lease has repudiated exercised any provision thereoftermination rights with respect thereto.
(c) The Target Companies have all certificates of occupancy and Permits of any Governmental Authority necessary or useful for the current use and operation of each Company Real Property, and neither Peabody (nor its Affiliates the Target Companies have fully complied with all material conditions of the Permits applicable to them. No default or violation, or event that are parties thereto, as with the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or bothgiving of notice or both would become a default or violation, would constitute a breach or default thereunderhas occurred in the due observance of any such Permit.
(ed) Except for the Peabody Propertiesas set forth in Schedule 4.15(d), neither Peabody nor no Target Company owns, holds, is obligated under or is a party to, any option, right of its Affiliates owns first refusal or leases other contractual right to purchase, acquire, sell, assign or dispose of any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, estate or any applicable land use covenants, zoning regulations portion thereof or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesinterest therein.
Appears in 2 contracts
Sources: Merger Agreement (Hightimes Holding Corp.), Merger Agreement (Origo Acquisition Corp)
Real Property. (a) Section 4.7(aNo Company Entity owns any real property. Schedule 3.09(a) of the Peabody Disclosure Letter sets forth contains a correct and complete list of all real property leased (whether as landlord or tenant) or occupied by any Company Entity and the lessor and lessee of such property (the date hereof of (i) all Peabody Owned "Leased Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included "). The applicable Company Entity has a valid leasehold interest in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted EncumbrancesLeased Real Property.
(b) Peabody Neither the whole nor any portion of the Leased Real Property has been condemned, requisitioned, expropriated or a controlled Affiliate otherwise taken by any Governmental Authority and no such condemnation, requisition, expropriation or taking is threatened or contemplated. There are no pending or threatened changes to any applicable codes or zoning requirements affecting or against all or any portion of Peabody, as applicable, has the Leased Real Property. There are no (i) good public improvements which have been ordered, commenced or completed and indefeasible fee title to all Peabody Owned for which an assessment may be levied against the Leased Real Property, or (ii) good and valid title planned improvements which may result in any assessment against the Leased Real Property. There is no Lien applicable to the leasehold estates Leased Real Property that would reasonably be expected to impair in any material respect the current use or occupancy of such Leased Real Property by any Company Entity. All buildings, structures, fixtures and appurtenances comprising part of the Leased Real Property were constructed or installed in compliance in all Peabody Leases material respects with all Laws, are structurally sound, are in good condition and repair (iii) good normal wear and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (itear excepted), (ii) and (iii)do not encroach on any property owned by any other Person. There are no material violations of any Law affecting any portion of the Leased Real Property, free including violations of any Laws regulating building, zoning, fire, safety, environmental, traffic, flood control or health, and clear no written notice of all Encumbrances (including Royalties), other than Permitted Encumbrancesany such violation has been issued by any Governmental Authority and received by any Company Entity.
(c) To Seller's Knowledge, all improvements to the Leased Real Property (including mechanical, electrical and plumbing systems serving such improvements) are in good condition and repair (normal wear and tear excepted) and such improvements are free from structural defects. Except as set forth on Schedule 3.09(c), no Company Entity has any continuing maintenance, repair or capital improvement obligations with respect to the Leased Real Property. There are no improvements or additions that are required to be removed by the lessee upon termination of any lease or sublease relating to the Leased Real Property and there are no damages, conditions or repairs that the lessee would be obligated to repair, restore or remediate upon termination of such lease or sublease. The Leased Real Property is supplied with utilities and other services adequate for the operation of such Leased Real Property, including adequate water, storm and sanitary sewer, gas, electric, cable and telephone facilities. The Company Entities have obtained all agreements or other rights from any other Person necessary to permit the lawful use and operation of the facilities located on the Leased Real Property or any driveways, roads and other means of egress and ingress to and from the Leased Real Property, and each such agreement or other right is in full force and effect. There is no pending or, to Seller's Knowledge, threatened Legal Proceeding which could result in the modification or cancellation of such agreements or rights.
(d) There are no outstanding options, rights of first offer or rights of first refusal held by any Company Entity to purchase any Peabody the Leased Real Property or any portion of thereof or any interest therein.
(d) Each . The Leased Real Property is not shared by any Company Entity, on the one hand, and any other Person, on the other hand, or used for any business other than the Company Entities’ business. The applicable Company Entity has the right to quiet enjoyment of the Peabody Leases is in full force and effect and constitutes Leased Real Property. Since the legalLookback Date, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease there has been amendedno disturbance of, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabodychallenge to, any other party thereto, is in breach Company Entity's quiet possession of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderLeased Real Property.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are is no pending or, to the Knowledge of PeabodySeller’s Knowledge, threatened condemnation, eminent domain Legal Proceeding against or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Leased Real Property.
(gi) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation No portion of the Peabody Business in substantially the manner in which the Peabody Business Leased Real Property is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties located within a flood hazard area and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on no portion of the Leased Real Property constitutes wetlands.
(g) No impact fees have been imposed, assessed or levied against the Leased Real Property and, to Seller's Knowledge, no impact fees are contemplated by any easements located on Governmental Authorities to be imposed, assessed or levied against the Peabody PropertiesLeased Real Property. Any impact fees imposed, assessed or levied upon the Leased Real Property have been paid in full.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Utz Brands, Inc.), Stock Purchase Agreement (Utz Brands, Inc.)
Real Property. (a) Section 4.7(aNo Company or Subsidiary owns any real property. Schedule 4.11(a) of the Peabody Disclosure Letter sets forth a correct and complete list of all real property and interests in real property leased, subleased or licensed by the Company and the Subsidiaries (individually, a “Company Property” and collectively, the “Company Properties”) as lessee, lessor, subtenant, licensor, licensee or occupant including a description of each lease, sublease or license applicable to each of the Company Properties (including the name of the third-party lessor, lessee, subtenant, licensor, licensee or occupant and the date hereof of the lease, sublease license or occupancy agreement and all amendments thereto) (individually, a “Real Property Lease” and collectively, the “Real Property Leases”). There are no parties in possession at the Company Properties other than the Company and the Subsidiaries and no portion of the Real Property Leases has been subleased or assigned to another person. The Company Properties constitute all interests in real property currently used, occupied or currently held for use in connection with the businesses of the Company and the Subsidiaries and which are necessary for the continued operation of the businesses of the Company and the Subsidiaries as such businesses are currently conducted. All of the Company Properties and Improvements thereon (i) are in good operating condition without structural defects, and all Peabody Owned Real Propertymechanical and other systems located thereon are in good operating condition, and no condition exists requiring material repairs, alterations or corrections (except for ordinary wear and tear), (ii) are suitable, sufficient and appropriate in all Peabody Leases respects for their current and contemplated uses, and (iii) comply with all Mining Rights included applicable Laws. None of the Improvements located on the Company Properties constitute a legal non-conforming use or otherwise require any special dispensation, variance or special permit under any Laws, including but not limited to the Americans with Disabilities Act or any Environmental Laws. The Company and the Subsidiaries have Made Available true, correct and complete copies of all environmental reports, property condition reports, expense reports, capital improvement reports, communications with the landlords, all plans and specification relating to improvements made to the premises addressed in each of the Real Property Leases, and all other reports and studies in the Peabody Company’s and/or the Subsidiaries’ possession for the Company Properties. Section 4.7(aThe only Real Property Leases are those set out on Schedule 4.11(a), together with all amendments, modifications or supplements, if any, thereto and the Real Property Leases have not been amended in any manner other that as set out in the agreements listed thereon. The Company and the Subsidiaries have charged, collected and remitted on a timely basis all Taxes as required under all applicable Laws in connection with any sale, supply or delivery whatsoever, made by the Company and the Subsidiaries. All rent (other than any true up of common areas maintenance charges if any) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used is due and payable on a monthly basis and has been paid through and as of the date hereof by other businesses of Peabody or its Affiliates and describes Closing Date. There are no non-disturbance agreements relating to the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Real Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein Leases other than Permitted Encumbrancesthose set out on Schedule 4.11(a).
(b) Peabody or The Company and the Subsidiaries have a controlled Affiliate of Peabodyvalid, as applicable, has (i) good binding and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the enforceable leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of interest under each of clauses (i), (ii) and (iii)the Real Property Leases under which it is a lessee, free and clear of all Encumbrances (including Royalties), Liens other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Exceptions. Each of the Peabody Real Property Leases is subsisting, in full force and effect effect, unamended by oral or written agreement, and constitutes the legalCompany and the Subsidiaries are entitled to the full benefit and advantage of each Real Property Lease. Neither the Company, valid the Subsidiaries nor any third-party lessor or lessee, as applicable, is in default under any Real Property Lease, each Real Property Lease is in good standing, and binding obligations no event has occurred, and no circumstance exists which, if not remedied, and whether with or without notice or the passage of Peabody time or its Affiliates both, would result in such a default. The Company and the Subsidiaries have not received or given any notice of any default or event that are parties thereto with or without notice or lapse of time, or both, would constitute a default by the Company and the Subsidiaries or any third-party lessor or lessee, as applicable, under any of the Real Property Leases and, to the Knowledge of Peabodythe Company, no other party, including, but not limited to the landlord, under the Real Property Leases is in default thereof. No party to any Real Property Lease has exercised any termination rights with respect thereto. The Company and the Subsidiaries are not a party to, nor has any Liability under, any lease, sublease, license or other parties theretooccupancy agreement other than the Real Property Leases identified on Schedule 4.11(b).
(c) The Company and the Subsidiaries have all certificates of occupancy and Permits of any Governmental Body necessary or useful for the current use and operation of each Real Property Lease, enforceable against Peabody and the Company and the Subsidiaries have fully complied with all material conditions of the Permits applicable to them, and each respective certificate of occupancy is in full force and effect. No default or such Affiliates andviolation, or event that with or without notice or lapse of time, or both, would become a default or violation, has occurred in the due observance of any Permit.
(d) There does not exist any actual or, to the Knowledge of Peabodythe Company, the other parties theretothreatened or contemplated condemnation, expropriation or eminent domain proceedings that affect or in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party any way relate to any Peabody Lease has repudiated Company Property or any provision part thereof, and neither Peabody (the Company nor its Affiliates that are parties theretoany Subsidiary has received any notice, as oral or written, of the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach intention of any of its respective obligations thereunder, and no event has occurred (including the failure Governmental Body or other Person to obtain take or use all or any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderpart thereof.
(e) Except for Neither the Peabody Properties, neither Peabody Company nor any Subsidiary has received any notice from any insurance company that has issued a policy with respect to any Company Property or any part thereof (i) requiring performance of its Affiliates owns any structural or leases other repairs or alterations to the Company Property or Improvements located thereon or part thereof, or (ii) of any real property used defect or held for use primarily inadequacy in any Company Property (including the Improvements located thereon) that could adversely affect the insurability or related primarily to or necessary for the operation or conduct usability of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody BusinessCompany Property.
(f) The Company and the Subsidiaries do not own or hold and is not obligated under or is a party to, any option, right of first refusal, right of first offer or other contractual right to purchase, acquire, sell, assign or dispose of any real estate or any portion thereof or interest therein.
(g) There are no unpaid charges, costs or expenses for improvements to the Company Properties which could give rise to any mechanic’s or materialmen’s or other statutory liens. There are no unpaid commissions due to or payable by the Company and the Subsidiaries to any other becoming due after the Closing Date under the Real Property Leases. The Company Properties are not subject to assessment or collection of additional Taxes for prior years based on a change in land usage or ownership.
(h) All utilities (including, without limitation, water, sewer, gas, electricity, trash removal and telephone service) are available to and connected with the Company Properties in sufficient quantities to adequately serve the same.
(i) There are no actions pending or, to the Knowledge of Peabodythe Company, threatened condemnationwith respect to any of the Company Properties that would alter the current zoning classification of any portion of such property or alter any applicable legal requirements that would adversely affect the use of such property by the Company and the Subsidiaries. The Company Property and each separate parcel comprising such property, eminent domain has actual and legal access to an adjoining dedicated right-of-way. No fact or similar proceedings affecting condition exists with respect to the Peabody Properties. There are no existing public improvements which may reasonably be expected to Company Property that would result in the termination of current access to and/or from any special assessment against any Peabody Owned Real Propertyportion of such property.
(gj) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation No portion of the Peabody Business Company Property is situated in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements a special flood hazard area according to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually of the applicable city maps or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side linesflood insurance rate maps, or any applicable land use covenantsthe flood hazard boundary maps issued by the Department of Housing and Urban Development, zoning regulations the Federal Insurance Administration or similar enforceable restrictions or the Federal Emergency Management Agency.
(iik) encroach on any easements located on A complete and accurate list of all warranties that affect the Peabody PropertiesCompany Properties is set forth in Schedule 4.11(k).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Blucora, Inc.), Stock Purchase Agreement (Blucora, Inc.)
Real Property. Neither Emmis, with respect to the Mediaco Business, nor Mediaco, owns any real property or interest in real property. Schedule Section 5.10(a) sets forth an accurate and complete list of (aA) Section 4.7(athe address (or other identifying description) and (B) the identity of the Peabody Disclosure Letter sets forth a lessor and lessee of each parcel of real property leased by Mediaco following the Distribution (the “Mediaco Leased Real Property”). True, correct and complete list as copies of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Estate Leases and (iii) all Mining Rights included amendments, modifications, supplements, extensions and memoranda thereof, have been delivered by Emmis to Purchaser. All buildings, structures and improvements located on such Mediaco Leased Real Property are in good condition and repair, ordinary wear and tear excepted, except if the Peabody Properties. Section 4.7(a) failure to meet such standards would not materially and adversely impair the use of any such real property as currently used by the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Mediaco Business. No Peabody Property is leased or subleased to At Closing, upon the receipt of any third partyrequired consents, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or Mediaco will have a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the and binding leasehold estates interest in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case each parcel of each of clauses (i), (ii) and (iii)Mediaco Leased Real Property, free and clear of all any material Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options. Except for the Real Estate Leases, rights of first offer neither Emmis, with respect to the Mediaco Business, nor Mediaco, is a party to any Lease for real property. Except as set forth on Schedule Section 5.10(a), neither Emmis, with respect to the Mediaco Business, nor Mediaco has subleased, licensed or rights of first refusal otherwise granted to purchase a third party any Peabody Property material right to possess, use or occupy all or any portion of the Mediaco Leased Real Property. Mediaco is not in default under, or in breach of, any interest therein.
(d) Each of the Peabody Real Estate Leases is in full force or Permitted Encumbrances, and effect and constitutes the legalto Emmis’ Knowledge, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the no other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease of the Real Estate Leases or Permitted Encumbrances is in default under, or in breach of, any of the Real Estate Leases or Permitted Encumbrances. No condemnation proceeding is pending with respect to the Mediaco Leased Real Property and to Emmis’ Knowledge, no condemnation proceeding has repudiated been threatened with respect to any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) Mediaco Leased Real Property. Neither Emmis nor, to the Knowledge of PeabodyEmmis’ Knowledge, any other party theretoto any Real Estate Lease has exercised any option or right to (i) terminate such Real Estate Lease, is in breach of any of its respective obligations thereunder(ii) lease additional premises, and no event has occurred (including iii) reduce or relocate the failure to obtain any consentpremises demised by such Real Estate Lease or (iv) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases purchase any real property used or held for use primarily in or related primarily pursuant to or any Real Estate Lease. The Mediaco Leased Real Property constitutes all of the real property that is necessary to conduct and operate the Mediaco Business as currently conducted and operated and there are no other Leases needed for the operation or conduct of the Peabody Mediaco Business or has any options as currently conducted and operated. The Mediaco Leased Real Property is in compliance in all material respects with all applicable Laws and to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There Emmis’ Knowledge there are no pending oror contemplated, to the Knowledge of Peabodyzoning changes, threatened condemnationvariances, eminent domain or similar proceedings special zoning exceptions, conditions or agreements affecting the Peabody Properties. There are no existing public improvements or which may would reasonably be expected to result in affect any special assessment against any Peabody Owned portion of the Mediaco Leased Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Contribution and Distribution Agreement (Mediaco Holding Inc.), Contribution and Distribution Agreement (Mediaco Holding Inc.)
Real Property. (a) Section 4.7(aNone of the Target Entities owns any real property. Schedule 5.5(a) of the Peabody Disclosure Letter sets forth Schedules contains a correct and complete list as by address of all real property leased, licensed, operated or used by the date hereof of Target Entities (i) all Peabody Owned the “Leased Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates”), and such use does not interfere with the operation of the Peabody Business. No Peabody identifies, if applicable, each lease or any other Contractual Obligation under which any Real Property is leased or subleased to any third partylicensed, including without limitation all amendments thereto (together with all amendments, supplements, waivers, subordination, non-disturbance and attornment agreements, and Peabody has not granted side letters thereto, each a “Real Property Lease “), the lessor or licensor thereunder, the Joint Venture to which such Leased Real Property relates and the monthly and annual rent thereunder. To the actual Knowledge of the Company, (i) no material physical or mechanical defects exist in any third party building or improvements (each a “Facility”) located on any licenseLeased Real Property, possessory and (ii) each such Facility is in good condition and repair, normal wear and tear excepted, and in compliance in all material respects with all applicable Laws. To the actual Knowledge of the Company, all agreements or occupancy right contracts made by any Target Entity for any improvements to a Facility or other similar right therein other than Permitted Encumbrancesthe Leased Real Property have been fully paid and there are no mechanic’s or materialman’s liens arising from any labor or material furnished to such Facility or Real Property.
(b) Peabody or a controlled Affiliate With respect to each parcel of Peabody, as applicable, has Leased Real Property:
(i) good and indefeasible fee title to all Peabody Owned The Target Entities have a valid leasehold estate under each Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Property Lease, free and clear of all Encumbrances (including Royalties), any liens or encumbrances other than Permitted Encumbrances.
(c. All Real Property Leases were negotiated at arms-length with the lessor or licensor of such Leased Real Property. Except for any Permitted Encumbrances and except as set forth on Schedule 5.5(a) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto andDisclosure Schedules, to the Knowledge of Peabodythe Company, there are no written or oral subleases, licenses, concessions, occupancy agreements or other Contractual Obligations granting to any other Person the right of use or occupancy of the Leased Real Property or any portion thereof and there is no Person in possession of the Leased Real Property or any portion thereof other parties theretothan the applicable Target Entity. No Executing Stockholder or Affiliate of an Executing Stockholder holds any ownership interest in any lessor or licensor of any of the Leased Real Property.
(ii) The Company has delivered to Parent true, enforceable against Peabody accurate and complete copies of each Real Property Lease, in each case, as amended or such Affiliates andotherwise modified.
(iii) There exists no default, to breach or dispute on the part of any Target Entity under any Real Property Lease nor has any event occurred which, with the passage of time or the giving of notice or both, would constitute a default or breach by a Target Entity under a Real Property Lease.
(iv) To the Knowledge of Peabodythe Company, there exists no default or breach by the landlord, sublessor, licensor or other parties thereto, in accordance with their respective terms. No Peabody obligor under each Real Property Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabodythe Company, has any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse the passage of time or the giving of notice or both, would constitute a default or breach or default by any such Person under a Real Property Lease.
(v) To the Knowledge of the Company, there has been no underpayment of expense pass-throughs with respect to a Real Property Lease that could result in the requirement that an additional payment be made to the landlord thereunder.
(ec) Except for To the Peabody Propertiesactual Knowledge of the Company, neither Peabody no part of the Leased Real Property nor the Facility located on any Leased Real Property is currently subject to condemnation proceedings and no such condemnation or taking is threatened or contemplated. To the actual Knowledge of the Company, no public improvements exist that may result in special assessments against or otherwise affect the Leased Real Property or any Facility. The Company does not have actual Knowledge of any facts that would adversely affect the possession, use or occupancy of any Leased Real Property or any Facility by Parent. To the actual Knowledge of the Company, (i) no Leased Real Property nor any Facility is in material violation of its Affiliates owns any zoning, public health, building code or leases any real other similar Laws applicable to such property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabodyownership, threatened condemnationoccupancy and/or operation thereof, eminent domain nor (ii) does there exist any waiver, variance, special permit, special exception or similar proceedings affecting the Peabody Propertiesother exemption relating to any Leased Real Property or any Facility with respect to any non-conforming use or other zoning or building code matters. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights utilities serving the Peabody Properties Leased Real Property and each Facility are legally enforceable adequate to permit the operation of the Peabody Business operate each in substantially the manner in which the Peabody Business it is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Agreement and Plan of Merger (Kindred Healthcare, Inc)
Real Property. Neither NYMEX Holdings nor any NYMEX Holdings Subsidiary owns a fee simple interest in any real property. The NYMEX Holdings Leased Real Property described in Section 3.14 of the NYMEX Holdings Disclosure Letter constitutes all the leasehold interests in real property of NYMEX Holdings and the NYMEX Holdings Subsidiaries.
(a) With respect to any Lease comprising the NYMEX Holdings Leased Real Property:
(i) Section 4.7(a3.14(a)(i) of the Peabody NYMEX Holdings Disclosure Letter sets forth lists all leases, subleases and licenses to which NYMEX Holdings or any NYMEX Holdings Subsidiary is a correct and complete list as of party. NYMEX Holdings or the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties applicable NYMEX Holdings Subsidiary that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of is party to each such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody Lease has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title leasehold interests in such Lease (subject to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in terms of the Peabody Propertiesapplicable Lease governing its interests therein), in the each case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances Liens other than Permitted Liens;
(including Royalties)ii) Section 3.14(a)(ii) of the NYMEX Holdings Disclosure Letter lists all agreements, other than Permitted Encumbrances.Liens (exclusive of the Occupancy Agreement, Restrictive Covenant Agreement and Grant Distribution Agreement) to which NYMEX Holdings or any NYMEX Holdings Subsidiary is a party that contain any material provisions relating to the occupancy or use of any space demised under a Lease, or to any employment milestones at such space (the “Material Real Estate Agreements”) and NYMEX Holdings has delivered or made available to CME Group true, correct and complete copies of the Material Real Estate Agreements;
(ciii) There are no outstanding optionseach such Lease and Material Real Estate Agreement is the legal, rights valid, binding and enforceable obligation of first offer NYMEX Holdings or rights the applicable NYMEX Holdings Subsidiary that is a party thereto, and, to the knowledge of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases NYMEX Holdings, is in full force and effect and constitutes the legal, valid and binding obligations obligation of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties theretothereto and will not be breached or violated solely by the consummation of the transactions contemplated by this Agreement;
(iv) neither NYMEX Holdings nor any NYMEX Holdings Subsidiary has received any written notice that it is in default under any such Lease, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge knowledge of PeabodyNYMEX Holdings, is NYMEX Holdings or any NYMEX Holdings Subsidiary or any other party thereto, is to such Lease in breach of default under any of its respective obligations thereundersuch Lease, and to the knowledge of NYMEX Holdings no event has occurred (including the failure to obtain any consent) occurred, which, after the giving of notice, with notice or lapse of time time, or bothotherwise, would constitute a breach material default by NYMEX Holdings or default thereunderany NYMEX Holdings Subsidiary or by any other party under such Lease;
(v) except for Permitted Liens, neither NYMEX Holdings nor the applicable NYMEX Holdings Subsidiary has assigned, subleased, transferred, conveyed or encumbered any interest in the leasehold or subleasehold created by any Lease;
(vi) there are no outstanding options or rights of any party (other than NYMEX Holdings or the applicable NYMEX Holdings Subsidiary) to terminate such Lease prior to the expiration of the term thereof, except as expressly set forth in each such Lease, and the consummation of the transactions contemplated by this Agreement in and of itself, will not give rise to any such right to terminate; and
(vii) Section 3.14(a)(vii) of the NYMEX Holdings Disclosure Letter lists all consents required to be obtained from any party to such Lease and from any party to any Material Real Estate Agreements in connection with transactions contemplated by this Agreement and to NYMEX Holdings’ knowledge, no other consents are required with respect to any such Lease or Material Real Estate Agreements in connection with transactions contemplated by this Agreement.
(eb) Except for With respect to the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest held by NYMEX Holdings at the property commonly known as ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (“One North”) and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ (“Lake Success,” and together with One North, the “Material Leased Property”):
(i) except in any real property for use primarily such case as has not resulted in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to havenot, individually or in the aggregate, reasonably be expected to result in a material adverse effect Material Adverse Effect on a particular item of real property. The NYMEX Holdings, all buildings, structures, fixtures and improvements included within the Material Leased Property (the “Material Lease Improvements”) are in good repair and operating condition, subject only to ordinary wear and tear, and are adequate and suitable for the purposes for which they are presently being used or held for use, and to the Peabody Properties (knowledge of NYMEX Holdings, there are no facts or conditions affecting any of the Material Lease Improvements that, in the aggregate, would reasonably be expected to interfere materially and adversely with the current uses use, occupancy or operation thereof;
(ii) do no portion of such Material Leased Property has suffered any damage by fire or other casualty loss which has not heretofore been completely repaired and restored in accordance with the terms of the Lease, or after the date hereof and prior to the Closing Date, is not in the process of being restored in accordance with the terms of the Lease, to its original condition (ordinary wear and tear excepted), except as would not, individually or in the aggregate, reasonably be expected to interfere with the use of any such Material Leased Property; and
(iii) NYMEX Holdings has delivered or made available to CME Group complete and accurate copies of all of the following materials relating to such Material Leased Property, to the extent such materials are in NYMEX Holdings’ or any NYMEX Holdings Subsidiary’s possession: all Leases and licenses (including any amendments, modifications or supplements thereto); appraisals; as to Lake Success only, floor plans and drawings for any renovations; and, as to One North only, as-built construction plans.
(c) With respect to that certain Occupancy Agreement, dated as of May 18, 1995, among The City of New York, New York State Urban Development Corporation, New York City Economic Development Corporation, Battery Park City Authority and New York Mercantile Exchange, including its wholly owned subsidiary, Commodity Exchange, Inc. (the “Occupancy Agreement”):
(i) violate set-backNYMEX Holdings has not violated and is not in violation of, building or side linesnor will the consummation of the transactions contemplated by this Agreement give rise to a violation of, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or Occupancy Requirement (as defined in the Occupancy Agreement); and
(ii) encroach on NYMEX Holdings has not violated and is not in violation of, nor will the consummation of the transactions contemplated by this Agreement give rise to a violation of, the Minimum Requirement (as defined in the Occupancy Agreement).
(d) With respect to that certain Restrictive Covenant Agreement, dated as of May 18, 1995, among WFC Tower A Company, Olympia & York Tower B Company, American Express Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇/WFC/L, Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, and New York Mercantile Exchange, NYMEX Holdings has not violated and is not in violation of, nor will the consummation of the transactions contemplated by this Agreement give rise to a violation of, any easements located on provision contained therein.
(e) With respect to that certain Grant Disbursement Agreement approved as of June 26, 2002, by New York State Urban Development d/b/a Empire State Development Corporation and The New York Mercantile Exchange, Inc., NYMEX Holdings has not violated and is not in violation of, nor will the Peabody Propertiesconsummation of the transactions contemplated by this Agreement give rise to a violation of, the requirements to maintain the Minimum Employment Number (as defined therein).
Appears in 2 contracts
Sources: Merger Agreement (Cme Group Inc.), Merger Agreement (Nymex Holdings Inc)
Real Property. (a) Section 4.7(a2.9(a) of the Peabody Remainco Disclosure Letter sets forth a correct and complete list as of the date hereof the address, fee owner and description of use of all Spinco Owned Real Property. With respect to the Spinco Owned Real Property: (i) all Peabody the Spinco Companies have good and marketable title to each parcel of Spinco Owned Real Property; (ii) other than the Spinco Companies, no Person has the right to use or occupy any Spinco Owned Real Property, (ii) all Peabody Leases and or any material portion thereof; (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There there are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Spinco Owned Real Property or any material portion of thereof or any interest therein.
; and (div) Each to the Knowledge of the Peabody Leases is in full force and effect and constitutes the legalRemainco, valid and binding obligations of Peabody there are no condemnation proceedings pending, threatened or its Affiliates that are parties thereto proposed against any Spinco Owned Real Property and, to the Knowledge of PeabodyRemainco, there is no existing plan or study by any Governmental Body or by any other Person that challenges or otherwise adversely affects the continuation of the use or operation of any Spinco Owned Real Property.
(b) Section 2.9(b) of the Remainco Disclosure Letter sets forth as of the date hereof an accurate list of each lease or other parties theretoagreement pursuant to which any of the Spinco Companies leases or uses (or intends to lease or use upon the Spinco Contribution) real property from any other Person for annual base rent payments in excess of $1,000,000 (all such real property leased or used by the Spinco Companies pursuant to the real property leases or other agreements identified or required to be identified in Section 2.9(b) of the Remainco Disclosure Letter, including all buildings, structures, fixtures and other improvements leased thereunder, is referred to as the “Spinco Leased Real Property”). After giving effect to the Contemplated Transactions described in or contemplated by the Separation Agreement and the Real Estate Matters Agreement, each of the leases or other agreements relating to the Spinco Leased Real Property will be as of the Closing (i) a valid and subsisting leasehold interest, or valid right to use, of one of the Spinco Companies; (ii) a valid and binding obligation of such Spinco Company free of Encumbrances (other than Permitted Encumbrances); and (iii) enforceable by and against Peabody such Spinco Company in accordance with its terms, except as individually or such Affiliates in the aggregate, would not reasonably be expected to be material to the Spinco Business. To the Knowledge of Remainco, there are no condemnation proceedings pending, threatened or proposed against any Spinco Leased Real Property and, to the Knowledge of PeabodyRemainco, there is no existing plan or study by any Governmental Body or by any other Person that challenges or otherwise adversely affects the continuation of the use or operation of any Spinco Leased Real Property. Section 2.9(b) of the Remainco Disclosure Letter contains an accurate and complete list of all material subleases, occupancy agreements and other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party Contracts granting to any Peabody Lease has repudiated Person (other than any provision thereofSpinco Company) a right of use or occupancy of any of the Spinco Leased Real Property in effect as of the date of this Agreement. There are no material disputes with respect to any lease or other agreement for any Spinco Leased Real Property. None of the Spinco Companies, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of PeabodyRemainco, any other party thereto, to any such lease or other agreement is in breach of any of its respective obligations thereunderor default under such lease or other agreement, and no event has occurred (including the failure or failed to obtain any consent) occur or circumstance exists which, with notice or lapse the delivery of notice, the passage of time or both, would constitute such a breach or default thereunder.
(e) Except for the Peabody Propertiesdefault, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation termination, modification or acceleration of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent propertyrent under such lease or other agreement, except for such encroachments as have individually or in the aggregate, has not had and would not reasonably be expected to have, individually or in the aggregate, have a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesSpinco Business.
Appears in 2 contracts
Sources: Merger Agreement (Regal Beloit Corp), Merger Agreement (Rexnord Corp)
Real Property. (a) Section 4.7(aSchedule 1.01(n) of the Peabody Dow Disclosure Letter sets forth a correct the address (or other identifying description) of each parcel of Transferred Leased Real Property and complete list as the identity of the date hereof lessor, lessee and current occupant (if different from lessee) of (i) all Peabody Owned each such parcel of Transferred Leased Real Property. Assuming the applicable lessor had the authority to enter into each such lease and to grant such leasehold interest, (ii) all Peabody Leases a Dow Entity has a valid and (iii) all Mining Rights included binding leasehold interest in the Peabody Properties. Section 4.7(a) each parcel of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Transferred Leased Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances other than Permitted Encumbrances. No Dow Entity has subleased or granted to a third party any right to use or occupy all or any portion of the Transferred Leased Real Property.
(b) Schedule 1.01(o) of the Dow Disclosure Letter sets forth the address and parcel number of each parcel of Transferred Owned Real Property. A Dow Entity has good and marketable fee simple title in and to each parcel of Transferred Owned Real Property, including Royalties)all of the buildings and improvements thereon, free and clear of all Encumbrances, other than Permitted Encumbrances.
(c) There . Other than the right of Parent pursuant to this Agreement, there are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody such Transferred Owned Real Property or any portion thereof or interest therein. Other than pursuant to easements of record, no Dow Entity has leased or granted any right to use or occupy all or any interest therein.
(d) Each portion of the Peabody Leases a Transferred Owned Real Property to a third party. There is no condemnation or other proceeding in full force and effect and constitutes the legaleminent domain, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of PeabodyTDCC, threatened condemnationthreatened, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Transferred Owned Real PropertyProperty or any portion thereof or interest therein.
(gc) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation Schedule 1.01(h) of the Peabody Business Dow Disclosure Letter sets forth the address and parcel number of each Retained Site. A Dow Entity has good and marketable fee simple title in substantially and to each Retained Site and in and to each Transferred Facility thereon, free and clear of all Encumbrances, other than Permitted Encumbrances. As of the manner Closing Date, a Parent Entity will have (i) a valid and binding leasehold interest in which the Peabody Business is currently operatedand to each Retained Site, and (ii) good and marketable fee simple title in and to each Transferred Facility thereon, in each case free and clear of all Encumbrances, other than Permitted Encumbrances. Other than Permitted Encumbrancesthe right of Parent pursuant to this Agreement, there are no encroachments upon outstanding options, rights of first offer or rights of first refusal to purchase or lease any Retained Site or any portion thereof or interest therein, including the Peabody Properties Transferred Facilities thereon. Other than pursuant to easements of record, no Dow Entity has leased or granted any right to use or occupy all or any portion of any Retained Site or any Transferred Facility thereon to a third party. There is no condemnation or other proceeding in eminent domain, pending or, to the Knowledge of TDCC, threatened affecting the Retained Sites or any portion thereof or interest therein, including the Transferred Facilities thereon.
(d) Section 4.12(d) of the TDCC Disclosure Letter sets forth the address (or other identifying description) of each parcel of real property leased by the JV Entity (the “JV Leased Real Property”). The JV Entity has a valid and no improvements binding leasehold interest in each JV Leased Real Property, free and clear of all Encumbrances, other than Permitted Encumbrances. The JV Entity has not subleased or granted to a third party any Peabody Properties encroach onto right to use or occupy all or any adjacent portion of any JV Leased Real Property. The JV Entity does not own any real property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in .
(e) To the aggregateKnowledge of TDCC, a material adverse effect on Dow Entity has good and valid title to (or valid leases in respect of) each of the locations in which a particular item of real property. The improvements Parent Entity is acquiring an occupancy right pursuant to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesan occupancy agreement that is a Transaction Document.
Appears in 2 contracts
Sources: Merger Agreement (Dow Chemical Co /De/), Merger Agreement (Olin Corp)
Real Property. The MMP Real Property owned and all leaseholds and other interests in MMP Real Property used or useful in the Business and all buildings, structures, towers, and improvements thereon used or useful in the business and operations of the Stations are listed on Schedule 5.3e to the MRI Agreement and, except for Permitted Encumbrances and as disclosed in Schedule 5.3e to the MRI Agreement, MMP has good and marketable fee simple title (insurable at standard rates by a reputable national title insurer) to all fee estates included in the Real Property, and good title to all other MMP Real Property, in each case clear of all liens. The FCC Licensee Entities own no real property, leaseholds or other interests in real property. No portion of the MMP Real Property or any building, structure, fixture or improvement thereon is the subject of, or affected by, any condemnation, eminent domain or inverse condemnation proceeding currently instituted or pending or, to MMP's Knowledge, threatened. MMP has a valid leasehold interest in all leased property and subleases to which it is a party, and MMP is the owner and holder of all the leased property purported to be granted by such leases and subleases. The MMP Real Property and the leases and subleases listed on Schedule 5.3e to the MRI Agreement constitute all of the real property owned, leased or used by MMP in the business and operations of the Stations, which is material to the business and operations of the Stations. The Sellers have delivered or caused to be delivered to the Purchaser correct and complete copies of the deeds, leases and subleases listed in Schedule 5.3e to the MRI Agreement. With respect to each lease and sublease listed in Schedule 5.3e to the MRI Agreement:
(a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Propertylease or sublease is legal, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliatesvalid, binding, enforceable, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect in all material respects subject to applicable bankruptcy, insolvency, reorganization, moratorium and constitutes other laws affecting the legal, valid rights of creditors generally and binding obligations to the exercise of Peabody judicial discretion in accordance with several principles of equity (whether applied by a court of law or its Affiliates that are parties thereto equity);
(b) MMP and, to the Knowledge of PeabodyMMP's knowledge, the no other parties thereto, enforceable against Peabody or such Affiliates and, party to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified lease or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, sublease is in material breach of any of its respective obligations thereunderor default, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or bothtime, would constitute a material breach or default or permit termination, modification, or acceleration thereunder.;
(c) MMP and, to MMP's knowledge, no other party to the lease or sublease has repudiated any material provision thereof;
(d) MMP is not a party to and, to MMP's knowledge, there are no material disputes, oral agreements, or forbearance programs in effect as to the lease or sublease;
(e) Except for except as set forth on Schedule 5.3e to the Peabody PropertiesMRI Agreement, neither Peabody nor MMP has not assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in the leasehold or related primarily to or necessary for the operation or conduct of the Peabody Business.subleasehold; and
(f) There are no pending or, all facilities leased or subleased thereunder material to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business Stations have received all approvals of governmental authorities (including material licenses and permits) required in substantially connection with the manner operation thereof, and have been operated and maintained in which the Peabody Business is currently operated. Other than Permitted Encumbrancesaccordance with applicable laws, there are no encroachments upon the Peabody Properties rules, and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or regulations in the aggregate, a all material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesrespects.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sinclair Broadcast Group Inc), Stock Purchase Agreement (Sinclair Broadcast Group Inc)
Real Property. (a) The Acquired Subsidiaries have good and valid fee simple title to all material owned real property, in each case, that is used primarily in the operation of the Business (collectively, the “Owned Real Property”) free and clear of all Liens other than Permitted Liens. Section 4.7(a3.8(a) of the Peabody Seller Disclosure Letter sets forth a correct true and complete list as of the date hereof of 50 largest (idetermined on a square foot basis) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody PropertiesProperty sites. Section 4.7(a) Neither any of the Peabody Disclosure Letter also identifies all Peabody Properties Sellers nor any of their Subsidiaries (other than the Acquired Subsidiaries) owns any real property that also are is used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with primarily in the operation of the Peabody Business. No Peabody An Acquired Subsidiary is in possession of each parcel of Owned Real Property is leased and, except as set forth on Section 3.8(a) of the Seller Disclosure Letter, there are no leases, licenses, occupancy agreements or subleased any other similar arrangement pursuant to any third party, and Peabody has not granted which any third party is granted the right to use any licenseOwned Real Property. Except as set forth on Section 3.8(a) of the Seller Disclosure Letter, possessory there are no outstanding options or occupancy right rights of first offer or other similar right therein other than Permitted Encumbrancesrefusal in favor of any third party to purchase any Owned Real Property. There are no pending, or the Knowledge of Sellers, threatened condemnation or eminent domain proceedings with respect to any Owned Real Property.
(b) Peabody Section 3.8(b) of the Seller Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of all real property that is (i) used primarily in the operation of the Business and (ii) leased, licensed or otherwise occupied by an Acquired Subsidiary, as lessee, in each case that involves annual rent payments by any such Acquired Subsidiary in excess of $100,000 (collectively, the “Leased Real Property” and, together with the Owned Real Property, the “Business Real Property”). Except as set forth on Section 3.8(b) of the Seller Disclosure Letter, neither any of the Sellers nor any of their Subsidiaries (other than the Acquired Subsidiaries) leases, licenses or otherwise occupies any real property that is used primarily in the operation of the Business. Sellers have made available to Purchaser a controlled Affiliate true and complete copy of Peabodyeach lease, license, or other occupancy agreement pursuant to which an Acquired Subsidiary leases, licenses or otherwise occupies the Leased Real Property in effect as of the date of this Agreement, together with all material amendments, guaranties, modifications, renewals and extensions thereto (collectively, the “Real Property Leases”). Each Real Property Lease is in full force and effect, and an Acquired Subsidiary, as applicable, has (i) good holds a valid and indefeasible fee title to all Peabody Owned existing leasehold interest under each such Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Property Lease, free and clear of all Encumbrances (including Royalties), Liens other than Permitted Encumbrances.
(c) There are no outstanding options, rights Liens. None of first offer or rights of first refusal to purchase any Peabody Property Sellers or any portion of their Affiliates (including the Acquired Subsidiaries) has given or received any written notice of default pursuant to any Real Property Lease. None of Sellers or any interest therein.
of their Affiliates (dincluding the Acquired Subsidiaries) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto andor, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of PeabodySellers’ Knowledge, any other party theretoto any Real Property Lease, is in breach of any of its respective obligations thereundermaterial default under such Real Property Lease, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute such a breach or material default thereunder.
(e. Except as set forth on Section 3.8(b) Except for of the Peabody PropertiesSeller Disclosure Letter, neither Peabody nor none of Sellers or any of its their Affiliates owns (including the Acquired Subsidiaries) has subleased, licensed or leases otherwise granted any real property used person the right to use or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has occupy any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Leased Real Property.
(gc) All utility easements, rights The Business Real Property comprises all of access and other easements and similar rights serving the Peabody Properties are legally enforceable real property that is material to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiespresently conducted.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Lumen Technologies, Inc.)
Real Property. Neither Holdco nor Enginetics owns any real property. Section 5.9 of the Disclosure Schedule contains a complete and accurate description in all material respects of all of the real property leased by Holdco or Enginetics (the “Leased Real Property”) including the amount of the security deposit, if any thereunder, a street address, legal description and the leases, subleases, options and commitments, oral or written, to which Holdco or Enginetics is a party or is otherwise bound or affected relating to the Leased Real Property (the “Leased Real Property Agreements” and each, a “Leased Real Property Agreement”). . The Leased Real Property listed in Section 5.9 of the Disclosure Schedule comprises all material real property interests used in the conduct of the business and operations of Holdco and Enginetics as now conducted. All Leased Real Property is held under leases or subleases that are, in all material respects, valid instruments enforceable in accordance with their respective 21 terms, except as limited by the General Enforceability Exceptions. There are no written or oral modifications, alterations or amendments of or to the Leased Real Property Agreements. Neither Holdco nor Enginetics is in default under any of the terms and provisions of any Leased Real Property Agreement and to Holdco’s Knowledge, no landlord under any lease or sublease for the Leased Real Property is in default of any of its obligations thereunder. To Holdco’s Knowledge, there are no defaults, offsets, counterclaims or defenses pursuant to the Leased Real Property Agreements, and Holdco has not received any notice of any default, offset, counterclaim or defense pursuant to any Leased Real Property Agreement. As of Closing, there will be no agreements in place, and binding upon Buyer, regarding the payment of any leasing commissions to any party with respect to the Leased Real Property. With respect to the Leased Real Property:
(a) Section 4.7(a) of No amount payable under any lease or sublease for the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Leased Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.past due;
(b) Peabody Holdco and Enginetics have complied with all material commitments and obligations on their respective parts to be performed or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned observed in connection with the Leased Real Property;
(c) Holdco has not received any notice of default (other than defaults which have been waived or cured) pursuant to a Leased Real Property Agreement or any other written communication calling upon either Holdco or Enginetics to comply with any provision of a Leased Real Property Agreement or asserting noncompliance and, except for events, and conditions which have been waived or cured; and
(iid) Except as set forth on Section 5.9 of the Disclosure Schedule and except for Permitted Liens, there does not exist any security interest, lien, encumbrance or claim of others (excluding the lessor) created or suffered to exist on the leasehold interest created in connection with the Leased Real Property. Enginetics has good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in under the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Leased Real Property Agreements, free and clear of all Encumbrances (including Royalties)liens, other than except for Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of PeabodyLiens. To Holdco’s Knowledge, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, current use and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business Leased Real Property is in substantially the manner compliance in which the Peabody Business is currently operatedall material respects with all applicable Laws, including without limitation laws relating to parking, zoning and land use, and public and private covenants and restrictions. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to Neither Holdco nor Enginetics has received written notice of non-compliance with any Peabody Properties encroach onto any adjacent propertyapplicable Laws that has not been cured, except for to the extent any such encroachments as have not had and non-compliance would not reasonably be expected to have, individually or in the aggregate, have a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesMaterial Adverse Effect.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Standex International Corp/De/), Stock Purchase Agreement (Standex International Corp/De/)
Real Property. (a) Section 4.7(aNo Seller owns any real property. Schedule 4.13(a) of the Peabody Disclosure Letter sets forth a correct and complete list lists as of the date hereof of (i) all Peabody Owned written leases, subleases, licenses, rental or occupancy agreements and other agreements (including all amendments) to lease, sublease, license or otherwise occupy or permit occupancy of, and describes all oral leases, subleases, licenses, rental or occupancy agreements pursuant to which any Seller leases, subleases, licenses, or otherwise rents or occupies or has agreed to lease, sublease, license or otherwise occupies or permit occupancy of, any real property, including all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property (each, a “Real Property Lease” and collectively, the “Leased Real Property”), (ii) all Peabody Leases a schedule of Leased Real Property by street address and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(aidentity of the lessor, lessee and current occupant (if different from lessee) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as each such parcel of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted EncumbrancesLeased Real Property.
(b) Peabody or a controlled Affiliate The applicable Seller is the owner and holder of Peabody, as applicable, has (i) good all interests and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title purported to all Mining Rights included in the Peabody Propertiesbe granted by each Real Property Lease, each Real Property Lease is valid, subsisting, in full force and effect, binding upon and enforceable against such Seller and the case of other parties thereto in accordance with its terms; and the interests and/or leasehold estate created by each of clauses (i), (ii) and (iii), Real Property Lease is free and clear of all Encumbrances liens or encumbrances except means (including Royaltiesi) mechanics’, carriers’, workers’ warehouseman’s, materialman’s, repairman’s, landlords’, or other liens arising or incurred in the ordinary course of the Business with respect to charges not yet due and payable, (ii) security interests of equipment lessors to evidence title retention; (iii) statutory liens for current taxes or assessments not yet due or payable (collectively, “Permitted Liens”). No Seller has delivered or received written notice of any alleged default by any party to a Real Property Lease and no Seller is in breach of or default under any of the Real Property Leases, nor to any Seller’s knowledge is any other than Permitted Encumbrances.
(c) There are no outstanding optionsparty to any Real Property Lease in breach of or default under such Real Property Lease, rights nor does any condition exist that, with or without notice, lapse of first offer time or rights the happening or occurrence of first refusal any other event, could result in a breach of or constitute a default under any Real Property Lease. No proceeding is pending or, to purchase any Peabody Property Seller’s knowledge, threatened for the taking or condemnation of all or any portion of the property demised under any Real Property Lease. There is no brokerage commission or finder’s fee due from any interest therein.
(d) Each Seller and unpaid with regard to any of the Peabody Leases is Real Property Leases, or which will become due at any time in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, future with regard to any Real Property Lease. Sellers have furnished to Purchaser prior to the Knowledge execution and delivery of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge this Agreement true and complete copies of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Propertiesall Real Property Leases. There are no existing public improvements which may reasonably be expected subleases or rights of occupancy with respect to result in any special assessment against any Peabody Owned the Leased Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Asset Purchase Agreement (National Quality Care Inc), Asset Purchase Agreement (Xcorporeal, Inc.)
Real Property. (a) Section 4.7(a3.17(a)(i) of the Peabody Impax Disclosure Letter sets forth contains a correct complete and accurate list by property, city, state and country of all interests in real property currently owned in fee by Impax and any of its Subsidiaries (the “Impax Owned Real Property”). Section 3.17(a)(ii) of the Impax Disclosure Letter contains (i) a complete and accurate list, by property, city, state and country, of all real property currently leased (as lessee), licensed (as licensee) or subleased (as sublessee) by Impax or any of its Subsidiaries (the “Impax Leased Real Property” and, together with the Impax Owned Real Property, collectively, the “Impax Real Property”), and (ii) a description of each Impax Lease and all amendments, modifications and supplements thereto.
(b) The Impax Owned Real Property, together with the Impax Leased Real Property, is sufficient in all material respects for the operation of the business currently conducted by Impax and its Subsidiaries in the ordinary course of business, and Impax and each of its Subsidiaries, as applicable, enjoys peaceful and undisturbed possession of the Impax Owned Real Property and the Impax Leased Real Property sufficient for current business and operational use requirements.
(c) Impax and/or its Subsidiaries, as applicable, has good and valid fee simple title to all Impax Owned Real Property, free and clear of any Liens other than Permitted Liens. Impax has made available to Amneal accurate and complete list as copies of all title insurance policies, title reports and surveys for the Impax Real Property in possession or control of Impax or any of its Subsidiaries. To the Knowledge of Impax, all buildings, plants, structures and other improvements that form a part of the date hereof Impax Real Property lie wholly within the boundaries of the land owned or leased by Impax or its Subsidiaries, as applicable, and do not materially encroach upon the property of, or otherwise materially conflict with the property rights of, any other person.
(d) None of the Impax Owned Real Property is subject to any lease, license, or sublease or any material use or occupancy agreement entered into outside of the ordinary course of business pursuant to which Impax or any of its Subsidiaries has granted any third party or third parties the right to use or occupancy of such Impax Owned Real Property (other than Permitted Liens or to Impax or any of its Subsidiaries).
(e) To Impax’s Knowledge, (i) all Peabody improvements on the Impax Real Property are structurally sound and in working order sufficient for their normal operation in the manner currently being operated, normal wear and tear excepted and (ii) the utilities servicing the Impax Real Property are adequate for the operation of each facility as it is currently being operated.
(f) The Impax Owned Real Property, and the current use and occupancy thereof, is in material compliance with (i) all applicable building, zoning, subdivision, health and safety and other Laws pertaining to the ownership, construction, use or occupancy of real property, including the Americans with Disabilities Act of 1990, as amended, (ii) all Peabody Leases easements, covenants, conditions, restrictions or similar provision in any instrument of record or other unrecorded agreement affecting such property and (iii) all Mining Rights included any requirements of any Governmental Authority in connection with (A) such Governmental Authority’s consents and/or (B) any entitlements or benefits extended by such Governmental Authority, in both cases, in relation to the Peabody Properties. Section 4.7(a) use and development of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates real property and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Businessfacilities thereon. No Peabody Property is leased or subleased to To Impax’s Knowledge, each Impax Lease that requires registration with any third partyGovernmental Authority has been duly registered.
(g) To Impax’s Knowledge, and Peabody has not granted any third party any licenseno eminent domain, possessory or occupancy right condemnation or other similar right therein other than Permitted Encumbrances.
(b) Peabody proceeding is pending or a controlled Affiliate threatened affecting any of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody the Impax Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted EncumbrancesImpax Leased Real Property or any part thereof.
(ch) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Impax Owned Real Property or any portion of thereof or any interest therein.
(di) Each contract, agreement or arrangement (including any option to purchase contained therein) pursuant to which Impax or any of its Subsidiaries leases, licenses or subleases any Impax Leased Real Property (each, an “Impax Lease” and, collectively, the Peabody Leases “Impax Leases”) is a written agreement in full force and effect effect, and constitutes the legalis valid, valid binding and binding obligations enforceable, subject to proper authorization and execution of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, each Impax Lease by the other parties thereto and except to the extent that enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditors’ right generally and by general equity principles. Impax has made available to Amneal (in each case, together with all material amendments, assignments, modifications, supplements, waivers or other changes thereto, enforceable against Peabody or such Affiliates ) true and complete copies of all Impax Leases and, in the case of any oral Impax Lease, a written summary of the material terms of such Impax Lease, to which Impax or any of its Subsidiaries is a party. None of Impax or any of its Subsidiaries subleases (as sublessor), licenses (as licensor) or grants the Knowledge of Peabodyuse or occupancy of, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease other person (other than business invitees in the ordinary course of business), any portion of the Impax Leased Real Property. Except for Permitted Liens, none of Impax or any of its Subsidiaries has repudiated collaterally assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any provision thereof, and neither Peabody interest in any Impax Lease.
(nor j) There exists no default or event of default on the part of Impax or any of its Affiliates that are parties thereto, as the case may be) norSubsidiaries under any Impax Leases or, to the Knowledge of PeabodyImpax’s Knowledge, any other party thereto, is in breach of any of its respective obligations thereundereach case that has not been cured and to Impax’s Knowledge, and no event has occurred (including the failure to obtain any consent) which, condition exists that with notice or lapse of time or both, would constitute a breach default by Impax or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns Subsidiaries or leases any real property used other party thereunder, in each case that has not been cured or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or that has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect. None of Impax or any of its Subsidiaries has received written notice of any default or event of default under any Impax Lease, other than any default or event of default that has been cured or that has not had or would not reasonably be expected to have, individually or in the aggregate, an Impax Material Adverse Effect.
(k) The current use and operation of the Impax Leased Real Property in the ordinary course of business of Impax and its Subsidiaries does not violate any Law in any material respect.
(l) None of Impax or any of its Subsidiaries is a material adverse effect on a particular item of real property. The improvements party to any contract, agreement or arrangement relating to the Peabody Properties (and future acquisition or development of any Impax Real Property by any third party or the current uses thereof) do not (i) violate set-back, building or side lines, acquisition of any other real property by Impax or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesof its Subsidiaries.
Appears in 2 contracts
Sources: Business Combination Agreement (Atlas Holdings, Inc.), Business Combination Agreement (Impax Laboratories Inc)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) The SU Entities have good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights real property owned by them included in the Peabody PropertiesNTX Assets (collectively, in the case of each of clauses (i), (ii) and (iii“NTX Owned Property”), free and clear of all Encumbrances (including Royalties), Liens other than Permitted EncumbrancesLiens. The SU Entities have valid and enforceable leasehold interests with respect to all real property currently leased or subleased to them included in the NTX Assets (collectively, the “NTX Leasehold Property” and, together with the NTX Owned Property, the “NTX Property”), free and clear of all Liens other than Permitted Liens, except that the validity and enforceability of the leases under which such NTX Leasehold Property is held (such leases together with any amendments thereto and guarantees thereof, the “NTX Leases”) are subject to the Enforceability Exceptions. The SU Entities are not in breach in any material respect or in material default under any NTX Lease or easement, license agreement (including railroad, pipeline and similar crossing rights), right of way or lease for rights of way, or other right with respect to the use of real property included in the NTX Assets to which it is a party (collectively, the “NTX Easements” and, together with the NTX Leases, the “NTX Real Property Agreements”). To the Knowledge of SU, no counterparty to any of the NTX Real Property Agreements is in material default of any of its obligations under the applicable NTX Real Property Agreement. No consent from any counterparty to any NTX Real Property Agreement is required in connection with the consummation of the Merger.
(cb) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(dSection 4.08(b) Each of the Peabody Leases is in full force SU Disclosure Schedule sets forth a list of all (i) NTX Owned Property, including the street address, fee owner and effect legal description, (ii) NTX Leasehold Property and constitutes NTX Leases, including the legalstreet address of such property and the parties to such NTX Lease and (iii) NTX Easements, valid including the parties to such NTX Easement. SU has made available to SDTS and binding obligations Oncor true, complete and correct copies of Peabody or its Affiliates that are parties thereto all material NTX Real Property Agreements and, to the Knowledge of PeabodySU, SU has made available to SDTS and Oncor true, complete and correct copies of all NTX Real Property Agreements. Except as set forth on Section 4.08(b) of the SU Disclosure Schedule, the other parties theretoSU Entities do not lease, enforceable against Peabody sublease, license or such Affiliates andsublicense any NTX Owned Property, any NTX Leasehold Property, or any real property interest subject to any NTX Real Property Agreements, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderthird party.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(fc) There are no pending or, to the Knowledge of PeabodySU, threatened condemnationLegal Proceedings affecting any of the NTX Owned Property, eminent domain any of the NTX Leasehold Property or similar proceedings affecting any of the Peabody Properties. There are no existing public improvements NTX Real Property Agreements, which may would reasonably be expected to result in materially interfere with any special assessment against present use or materially and adversely affect the fee title of any Peabody of the NTX Owned Property, the leasehold title of any of the NTX Leasehold Property or the real property interests of any of the NTX Real PropertyProperty Agreements.
(gd) All utility easementsThe SU Entities have not received written notice from any Person within three years prior to the date of this Agreement asserting that any SU Entity does not have the right, rights as a result of access and other easements and similar rights serving the Peabody Properties are legally enforceable title defects or title failures, to permit the operation use or occupy any portion of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements NTX Property or any real property interest subject to any Peabody Properties encroach onto any adjacent propertyNTX Real Property Agreements, except for such encroachments as have not had and other than those notices that would not reasonably be expected to haveindividually, individually or in the aggregate, a reasonably be expected to materially detract from the value, materially interfere with any present or intended use or materially adversely affect the marketability of any such NTX Property.
(e) To the Knowledge of SU, SU has not granted to any third party the right to use or access the NTX Owned Property or the NTX Leasehold Property in any manner that interferes in any material adverse effect on a particular item of real property. The improvements respect with the NTX Owned Property, the NTX Leasehold Property or the Subject NTX Operations or otherwise granted to any third party any ownership rights in any material NTX Owned Property or the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesNTX Leasehold Property.
Appears in 2 contracts
Sources: Merger Agreement (Hunt Consolidated, Inc.), Merger Agreement (InfraREIT, Inc.)
Real Property. (a) Section 4.7(a3.17(a) of the Peabody Disclosure Letter Schedule, sets forth a correct each parcel of real property owned by Real Estate Seller or the Seller and complete list as used in or necessary for the conduct of the date hereof Business at the Facilities as currently conducted (together with all buildings, fixtures, structures and improvements situated thereon and all easements, rights-of-way and other rights and privileges appurtenant thereto, collectively, the "Owned Real Property"), including with respect to each property, the address location and use. Seller and/or Real Estate Seller have delivered to Purchaser copies of the deeds and other instruments (ias recorded) all Peabody by which Seller or Real Estate Seller acquired such parcel of Owned Real Property, (ii) and copies of all Peabody Leases title insurance policies, opinions, environmental site assessments and/or reports, abstracts and (iii) all Mining Rights included surveys in the Peabody Propertiespossession of Real Estate Seller or Seller with respect to such parcel. Section 4.7(a) With respect to each parcel of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.Owned Real Property:
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) Real Estate Seller and/or Seller has good and indefeasible marketable fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)simple title, free and clear of all Encumbrances (including Royalties)encumbrances, other than Permitted Encumbrances.except those encumbrances identified in Section 2.7 and set forth on title policy(ies) to be delivered in conjunction with the transfer of Owned Real Property; and
(cii) There there are no unrecorded outstanding options, rights of first offer or rights of first refusal to purchase any Peabody such Owned Real Property or any portion of thereof or any interest therein.
(db) Each Section 3.17(b) of the Peabody Leases Disclosure Schedule sets forth each parcel of real property leased by Seller (together with all rights, title and interest of Seller in and to leasehold improvements relating thereto, including, but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “Leased Real Property”), and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether written or oral), including all amendments, extensions renewals, guaranties and other agreements with respect thereto, pursuant to which Seller holds any Leased Real Property (collectively, the “Real Property Leases”). Seller has delivered to Purchaser a true and complete copy of each Real Property Lease. With respect to each Real Property Lease:
(i) such Real Property Lease is valid, binding, enforceable and in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofeffect, and neither Peabody Seller enjoys peaceful and undisturbed possession of the Leased Real Property;
(nor its Affiliates that are parties thereto, as the case may beii) nor, to the Knowledge of Peabody, any other party thereto, Seller is not in breach of any of its respective obligations thereunderor default under such Lease, and no event has occurred (including the failure to obtain any consent) or circumstance exists which, with notice or lapse the delivery of notice, passage of time or both, would constitute such a material breach or default thereunder.default, and Seller has paid all rent due and payable under such Lease through the date hereof;
(eiii) Except for the Peabody PropertiesSeller has not received nor given any notice of any default or event that with notice or lapse of time, neither Peabody nor or both, would constitute a default by Seller under any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending orReal Property Leases and, to the Knowledge of PeabodySeller, threatened condemnationno other party is in default thereof, eminent domain and no party to any Real Property Lease has exercised any termination rights with respect thereto;
(iv) Seller has not subleased, assigned or similar proceedings affecting otherwise granted to any Person the Peabody Properties. There are no existing public improvements which may reasonably be expected right to result use or occupy such Leased Real Property or any portion thereof; and
(v) Seller has not pledged, mortgaged or otherwise granted a Lien on its leasehold interest in any special assessment against any Peabody Owned Leased Real Property.
(gc) All utility easementsExcept as listed on Section 3.17(c) of the Disclosure Schedule, rights Seller has not received any written notice of access (i) violations of building codes and/or zoning ordinances or other Applicable Laws affecting the Owned Real Property or Leased Real Property, (ii) existing, pending or threatened condemnation proceedings affecting the Owned Real Property or Leased Real Property, or (iii) existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which could reasonably be expected to materially and other easements and similar rights serving the Peabody Properties are legally enforceable to permit adversely affect the operation of the Peabody Business in substantially the manner in which the Peabody Business is Owned Real Property or Leased Real Property as currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Shiloh Industries Inc), Asset Purchase Agreement
Real Property. (a) Section 4.7(a4.14(a) of the Peabody GPC Disclosure Letter sets forth a correct and complete list forth, with respect to each parcel of SpinCo Leased Real Property as of the date hereof of (i) all Peabody Owned this Agreement, the Contracts that provide a SpinCo Company with rights to lease, sublease, license, use or otherwise occupy such parcel of SpinCo Leased Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used Property as of the date hereof by of this Agreement, including any amendments or modifications thereof (all such Contracts, together with the Contracts that provide each SpinCo Company with rights to lease, sublease, license, use or otherwise occupy the SpinCo Leased Real Property as of the Closing Date, including any amendments or modifications thereof, collectively, the “SpinCo Leases”), the address (or other businesses of Peabody or its Affiliates and describes the nature identifying description) of such use by such other businesses of Peabody or its Affiliates, parcel and such use does not interfere with the operation identity of the Peabody Businesslessor, lessee and current occupant (if different from lessee) of such parcel. No Peabody Property Except to the extent disclosure is leased or subleased limited by the terms of any SpinCo Lease, true, correct and complete copies of all SpinCo Leases existing as of the date of this Agreement have been provided to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has RMT Parent. The applicable SpinCo Company (i) good has a valid and indefeasible fee title to all Peabody Owned binding leasehold interest in, and enjoys peaceful and undisturbed possession of, each parcel of SpinCo Leased Real Property, Property existing as of the date of this Agreement and (ii) good will have a valid and valid title to binding leasehold interest in each parcel of SpinCo Leased Real Property that will exist as of the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody PropertiesClosing Date, in the case of each of clauses (i), (ii) and (iii)case, free and clear of all Encumbrances (including Royalties), Liens other than Permitted EncumbrancesLiens.
(cb) There are no outstanding optionsWith respect to each SpinCo Lease, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of neither the Peabody Leases is in full force and effect and constitutes the legalapplicable SpinCo Company, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge knowledge of PeabodyGPC, any other party thereto, counterparty thereto is in breach of default thereunder in any of its respective obligations thereundermaterial respect, and there are no event has occurred (including events which with the failure to obtain any consent) which, with notice or lapse passage of time or notice, or both, would constitute a breach or material default thereunder.
(e) Except for thereunder on the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct part of the Peabody Business or has any options SpinCo Company party to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending such SpinCo Lease, or, to the Knowledge knowledge of PeabodyGPC, threatened condemnationany other party to such SpinCo Lease. Except as described on Section 4.14(b) of the GPC Disclosure Letter, eminent domain the consummation of the transactions provided for herein will not create or similar proceedings affecting constitute a default or event of default under any SpinCo Lease or require the Peabody Propertiesconsent of any other party to any such lease to avoid a default or event of default. There are The SpinCo Leased Real Property is in compliance in all material respects with all laws, rules, regulations and ordinances related to the business as it is currently conducted on such SpinCo Leased Real Property. Except as otherwise indicated on Section 4.14(b) of the GPC Disclosure Letter, no existing public improvements which may reasonably be expected SpinCo Company has subleased or granted to result in a third party any special assessment against right to use or occupy all or any Peabody Owned portion of the SpinCo Leased Real Property.
(gc) All utility easements, rights To the knowledge of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted EncumbrancesGPC, there are no encroachments upon eminent domain or similar Proceedings pending or threatened affecting all or any material portion of the Peabody Properties SpinCo Leased Real Property. To the knowledge of GPC, there is no writ, injunction, decree, order or judgment outstanding, nor any action claim, suit or other Proceeding pending or threatened, relating to the ownership, lease, use, occupancy or operation by any Person of the SpinCo Leased Real Property. The SpinCo Leased Real Property is in good condition and no improvements repair and is sufficient for the uses in which such property is presently employed.
(d) None of the SpinCo Companies owns any real property nor is under contract to purchase or otherwise acquire any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Merger Agreement (Rhino SpinCo, Inc.), Merger Agreement (Genuine Parts Co)
Real Property. (a) Section 4.7(a3.10(a)(i) of the Peabody Seller Disclosure Letter sets forth Schedule includes a true, correct and complete list of all real property leases, subleases, licenses or other occupancy agreements used by the Company or its Subsidiaries or to which any of them is a party as of lessee, sublessee, licensee or occupant (the date hereof of (i) all Peabody Owned “Real Property Leases,” and the properties leased, subleased, licensed or occupied thereunder, the “Leased Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties”). Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody The Company or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of PeabodySubsidiaries, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and have a valid title to the leasehold estates interest in all Peabody Leases and (iii) good and valid title to all Mining Rights included in of the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), Leased Real Property free and clear of all Encumbrances (including Royalties)Liens, other than Permitted Encumbrances.
Liens. Except as would not be material to the Company and its Subsidiaries, taken as a whole, (cA) There are no outstanding optionsdefault by the Company or its Subsidiaries, rights of first offer or rights of first refusal or, to purchase any Peabody Property or any portion of or any interest therein.
(d) Each the Knowledge of the Peabody Company, the lessor, exists under any Real Property Leases and (B) each Real Property Lease is in full force and effect and constitutes the legal, valid and binding obligations of Peabody on, and enforceable against, the Company or its Affiliates that are parties thereto Subsidiaries, as applicable, and, to the Knowledge of Peabodythe Company, on and against the lessor or other party thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles. Neither the Company nor any of its Subsidiaries has assigned, transferred or pledged any interest in any of the Real Property Leases.
(b) Section 3.10(b) of the Seller Disclosure Schedule sets forth a true and complete list of all the real property owned by the Company or its Subsidiaries (such properties, the “Owned Real Property”) and the record owner thereof. Except as set forth in Section 3.10(b) of the Seller Disclosure Schedule, the Company and its Subsidiaries have good marketable and valid fee simple title to all of the Owned Real Property free and clear of all Liens, other parties theretothan Permitted Liens. Neither the Company nor any of its Subsidiaries is obligated or bound by any options, enforceable against Peabody obligations or such Affiliates rights of first refusal or contractual rights to sell or acquire any real property. Except as would not be material to the Company and its Subsidiaries, taken as a whole, the Company and its Subsidiaries have fulfilled and performed in all material respects all obligations binding upon the Owned Real Property that are required to be performed by the Company or a Subsidiary prior to the date of this Agreement.
(c) Neither the whole nor any part of the Owned Real Property is subject to any pending suit for condemnation or other taking by any Governmental Authority, and, to the Knowledge of Peabodythe Company, the no such condemnation or other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified taking is threatened or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Propertiescontemplated. There are no existing public improvements which may reasonably be expected leases, subleases, licenses, or other agreements granting to result in any special assessment against Person the right of use or occupancy of any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation portion of the Peabody Business in substantially Real Property (except under the manner in which the Peabody Business is currently operated. Other than Real Property Leases and Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesLiens).
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Aptargroup Inc)
Real Property. (a) Section 4.7(a5.25(a) of the Peabody MAF Disclosure Letter sets forth a correct and complete list as of the date hereof of identifies (i) all Peabody each parcel of real property and any improvements on a Leased Premises owned by MAF or a MAF Subsidiary (each an “Owned Real Property, ”) and (ii) all Peabody Leases each real property premises leased by MAF or a MAF Subsidiary, including any ground lease (each a “Leased Premises” and (iii) all Mining Rights included in together with Owned Real Properties, the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates“Real Estate”), and such use does not interfere with lists the operation of corresponding lease for each Leased Premises to which MAF or the Peabody Business. No Peabody Property applicable MAF Subsidiary is leased or subleased to any third partya party (collectively, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesthe “Lease Agreements”).
(b) Peabody MAF or a controlled Affiliate of Peabodythe MAF Subsidiary, as applicable, has (i) good and indefeasible marketable, indefeasible, fee simple title to all Peabody each Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of any and all Encumbrances (including Royalties)encumbrances other than Permitted Real Property Encumbrances. MAF and each MAF Subsidiary, if applicable, have valid leasehold interests in and are in possession of the Leased Premises, and in each case, such leasehold interests are free and clear of all Liens, other than Permitted Real Property Encumbrances.
(c) There To the Knowledge of MAF, the building, structures and improvements located on, fixtures contained in, and appurtenances attached to, each Real Estate conform and are no outstanding optionsin compliance with all applicable Laws, rights of first offer or rights of first refusal to purchase including the Americans With Disabilities Act. MAF has not received any Peabody Property notice from a lessor, any Governmental Authority or any portion other Person requiring any work or repairs to Real Estate that the tenant has not completed in compliance with such notice. To the Knowledge of MAF, in their present state of repair all structural and mechanical components of the facilities serving the Real Estate (including the roof, all heating, ventilation, plumbing and electrical systems used in the operation thereof) are adequate for MAF’s or any interest thereinthe applicable MAF Subsidiary’s purposes.
(d) Each Neither MAF nor any MAF Subsidiary has entered into any sublease, license or assignment of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto a Leased Premises and, to other than MAF or an applicable MAF Subsidiary under the Knowledge applicable Lease Agreement, there are no Persons physically occupying any portion of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderLeased Premises.
(e) Except for No brokerage fees, commissions or any similar payments are owed or payable by MAF or any MAF Subsidiary to any third party in connection with the Peabody Propertiesexistence or execution of a Lease Agreement, neither Peabody nor or in connection with any renewal, expansion or extension of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody BusinessLease Agreement.
(f) There are no pending orMAF has delivered or made available to National City a correct and complete copy of each Lease Agreement, to the Knowledge of Peabodytogether with all amendments and supplements thereto. Neither MAF nor any MAF Subsidiary is in default under any Lease Agreement, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may default is reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected likely to have, either individually or in the aggregate, a material adverse effect on Material Adverse Effect, and there has not occurred any event that with the lapse of time or the giving of notice or both would constitute such a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesdefault.
Appears in 2 contracts
Sources: Merger Agreement (Maf Bancorp Inc), Merger Agreement (National City Corp)
Real Property. (a) Other than the leased or occupied real property listed in Section 4.7(a) 3.14 of the Peabody Disclosure Letter sets forth a correct and complete list as of Schedule (the date hereof of (i) all Peabody Owned “Leased Real Property, (ii) all Peabody Leases ,” and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody each Contract under which any Leased Real Property is leased or subleased to occupied by any third partySeller is a “Real Property Lease”), and Peabody has not granted no Seller owns any third party right, title or interest in any licensereal property that is used in any manner in connection with the Outlet Business or that will become an Acquired Asset. Sellers, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or considered collectively, have a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned valid leasehold interest in each Leased Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), any Encumbrance other than any Permitted Encumbrances.
(c) Encumbrance. There are no outstanding optionsparties in possession of the Leased Real Property other than the applicable Seller. No Leased Real Property has suffered any material damage by fire or other casualty that has not been repaired and restored in all material respects. As of the date hereof, rights no party to any Real Property Lease has exercised any termination right with respect thereto. All rent and other sums and charges payable by the applicable Seller as tenant thereunder are current. No Seller has received written notice from any insurance company that such insurance company will require any alteration to any Leased Real Property for continuance of first offer a policy insuring such property (other than any notice of alteration that has been completed), to the extent that such alteration is the responsibility of the applicable Seller. No Seller is contesting any operating cost, real estate Tax or rights of first refusal assessment or other charge payable by such Seller under any Real Property Lease. No Seller has exercised any (if any) option under any Real Property Lease to purchase the real property subject to such Real Property Lease. There are no material capital expenditures, to any Peabody Sellers’ Knowledge, required to be made by Buyer in connection with the Leased Real Property in order to comply with any Real Property Lease or Applicable Laws or any portion insurance requirements of any Seller or any interest therein.
landlord under any Real Property Lease. All buildings, structures, facilities, and other improvements (dcollectively, “Improvements”) Each of are in good operating condition and repair, subject to normal wear and maintenance given their relative ages. To any Seller’s Knowledge, all Permits that are required or appropriate to use or occupy the Peabody Leases is Leased Real Property as currently conducted thereon have been issued and are in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereundereffect.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Asset Purchase Agreement (G Iii Apparel Group LTD /De/), Asset Purchase Agreement (PreVu, INC)
Real Property. (a) Section 4.7(a) True and complete copies of the Peabody Disclosure Letter sets forth a correct Honduran Facility Lease and complete list as of the date hereof of U.S. Arrow Factory Store leases (ithe "REAL PROPERTY") all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased have previously been delivered to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted EncumbrancesBuyer.
(b) Peabody CAT does not own any real property or a controlled Affiliate of Peabody, as applicable, has interests in real property. CAT does not lease or sublease any real property other than pursuant to the Honduran Facility Lease.
(i) good and indefeasible fee title to all Peabody Owned Real PropertyThe Honduran Facility Lease is a valid agreement, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, a valid and binding obligations obligation of Peabody or its Affiliates that are parties thereto CAT and, to the CP's Knowledge (as defined below), of Peabody, the any other parties party thereto, and is legally enforceable against Peabody or such Affiliates CAT and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of PeabodyCP's Knowledge, any other party thereto, (ii) CAT has not received any written notice from any other party to the Honduran Facility Lease of the termination thereof or alleging a material default thereunder by CAT, (iii) there is in breach of any of its respective obligations thereunder, and no default or event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach material default on the part of CAT (nor, to CP's Knowledge, on the part of any other party thereto) under the Honduran Facility Lease, and (iv) CAT has not transferred, assigned, hypothecated, pledged or default encumbered any of its rights or interest thereunder.
(ec) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns CP and FS do not lease or leases sublease any real property used or held for use primarily included in or related primarily the Assets other than pursuant to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody BusinessU.S. Arrow Factory Store Leases.
(fi) There are no pending orEach Arrow Factory Store Lease is a valid agreement, in full force and effect and constitutes a valid and binding obligation of CP and/or FS that is a party thereto and, to the Knowledge CP's Knowledge, of Peabodyany other party thereto, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are is legally enforceable against each of CP and FS that is a party thereto and, to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted EncumbrancesCP's Knowledge, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent propertyother party thereto, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on CP has not received any easements located on written notice from any other party to the Peabody Properties.Arrow Factory Store Leases of the termination thereof or alleging a material default thereunder by any of CP and/or FS that is a party thereto, (iii) there is no default or event which, with notice or lapse of
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Phillips Van Heusen Corp /De/), Purchase and Sale Agreement (Cluett American Corp)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to Subject Entity owns any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody or Schedule 5.9(b) sets forth a controlled Affiliate true, correct and complete list of Peabody, as applicable, has all real estate held by any Subject Entity under real property leases (ithe “Leased Real Property”) good and indefeasible fee title to all Peabody Owned leases covering the Leased Real Property, including all amendments thereto (iithe “Real Property Leases”). The Leased Real Property constitutes all of the real property interests held by the Subject Entities and required for or currently used in connection with the operation of their respective businesses as they are presently conducted and have been conducted since December 31, 2004. Parent or Sellers have delivered to Purchaser true, correct and complete copies of all Real Property Leases together with copies of all reports (if any) good and valid title to the leasehold estates of any engineers, environmental consultants or other consultants in all Peabody Leases and (iii) good and valid title to all Mining Rights included their possession or under their control or in the Peabody Properties, in possession or control of the case Acquired Corporations or any Acquired Corporation Subsidiary relating to any of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrancesthe Leased Real Property.
(c) There The Leased Real Property has at all times been maintained and repaired by the Subject Entities as required under the Real Property Leases and in a manner in accordance with sound property management practice. To the extent that a Subject Entity has constructed or caused to be constructed any improvements to any Leased Real Property, such entity represents and warrants to Purchaser that, to the knowledge of Parent and Sellers, such improvements were constructed in a manner in accordance with sound construction practice and that there are no outstanding optionsmaterial defects or deficiencies in the design, rights construction, fabrication, manufacture or installation of first offer or rights any such improvements in the Leased Real Property. To the knowledge of first refusal Parent and Sellers, all systems, elements and components of the Leased Real Property (including all machinery, fixtures and equipment, the roof, foundation and structural elements, and the elevator, mechanical, electrical and life safety systems) are in good working order and repair and sound operating condition, subject to purchase any Peabody Property or any portion of or any interest thereinordinary wear and tear and routine maintenance.
(d) Each To the knowledge of Parent and Sellers, each Leased Real Property and the activities carried on in all buildings, warehouses, plants, facilities, installations, fixtures and other structures or improvements included as part of, or located on or at, each such Leased Real Property, complies with, is not in violation of, or in conflict with, any Law applicable to or binding on such Leased Real Property or any Subject Entity or any of its respective assets or properties.
(e) To the knowledge of Parent and Sellers, none of the Peabody Leased Real Property is subject to any Lien, easement, right-of-way, building or use restriction, exception, variance, reservation or limitation that might interfere with or impair the present and continued use thereof in the usual and normal conduct of the business and operations of any Subject Entity.
(f) To the knowledge of Parent and Sellers, each separate parcel included in the Leased Real Property has adequate water supply, storm and sanitary sewer facilities, access to telephone, gas and electrical connections, fire protection, drainage and other public utilities, and has adequate parking facilities that meet all requirements imposed by Laws applicable to or binding on any Asset Seller or any of its respective assets or properties.
(g) All the Real Property Leases is are in full force and effect and constitutes the legaleffect, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect that affect the enforcement of creditors’ rights generally and by equitable limitations on the availability of specific remedies. No Peabody Lease Subject Entity has been amended, modified or supplemented. No party to received any Peabody Lease has repudiated any provision thereofnotice of any, and neither Peabody there exists no, dispute, claim, event of default or event that constitutes or would constitute (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute ) a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor under any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent propertyProperty Lease, except for such encroachments as defaults or breaches that may arise from, or otherwise be caused by, the occupancy of the respective leased premises by customers (or other similar third parties). Schedule 5.9(g) lists the customers of the Business and other similar Persons occupying space on the premises leased under each Real Property Lease. All rent and other amounts due and payable with respect to the Real Property Leases have not had and would not reasonably be been paid. Except for the Real Property Lease relating to the Minneapolis property (which consists of a month to month tenancy), none of the Real Property Leases are expected to haveexpire or terminate during the year following the Closing Date.
(h) Except as set forth on Schedule 5.9(h), individually no work has been performed or is in progress at, and no materials have been furnished to any Subject Entity for use at, any of the aggregateLeased Real Property that may give rise to any mechanic’s, a material adverse effect on a particular item materialmen’s or other Lien against any of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesLeased Real Property.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Refco Group Ltd., LLC), Purchase and Sale Agreement (Refco Inc.)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct Schedule 4.16 discloses and complete list as of the date hereof of (i) summarizes all Peabody Owned Real Propertyreal properties currently owned, (ii) all Peabody Leases and (iii) all Mining Rights occupied, used or leased by Seller or in which Seller has an interest that are included in the Peabody PropertiesPurchased Assets (such real properties, including buildings, structures, fixtures, improvements, leaseholds, privileges, rights, easements, hereditaments, Appurtenances and related rights of every nature, collectively, the "REAL PROPERTY") and identifies the record title holder of all Real Property. Section 4.7(a) Schedule 4.16 identifies the correct legal description, street address and tax parcel identification number of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as tracts, parcels and subdivided lots of the date hereof all Real Property owned by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody BusinessSeller. No Peabody Property is leased or subleased to any third party, and Peabody Seller has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible marketable fee simple title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Property shown as owned by it on Schedule 4.16, free and clear of all Encumbrances (including Royalties)Encumbrances, other than Permitted Encumbrances.
(c) There are no outstanding options. Seller has the right to quiet enjoyment of all Real Property in which it holds a leasehold interest for the full term, rights including all renewal rights, of first offer or rights the leasehold interest. Schedule 4.16 identifies each lease agreement, and all amendments and supplements thereto, for each parcel of first refusal to purchase Real Property shown as leased by Seller on Schedule 4.16. Seller has not received any Peabody written notice of assessments for public improvements against any Real Property or any portion written notice or Order by any Governmental Body, insurance company or board of fire underwriters or other body exercising similar functions that (i) relates to violations of zoning, land use, building, safety or fire ordinances or regulations, (ii) claims any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody defect or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance deficiency with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party respect to any Peabody Lease has repudiated any provision thereof, and neither Peabody Real Property or (nor its Affiliates that are parties thereto, as iii) requests the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach performance of any of its respective obligations thereunderrepairs, and no event has occurred (including the failure to obtain any consent) which, with notice alterations or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily other work to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily Real Property or in or related primarily to or necessary for any streets bounding the operation or conduct of the Peabody Business.
(f) Real Property. There are is no pending orcondemnation, to the Knowledge of Peabody, threatened condemnationexpropriation, eminent domain or similar proceedings proceeding affecting all or any portion of the Peabody PropertiesReal Property. Seller has not received any written notice of any proposed, planned or actual curtailment of service of any utility supplied to any facility located on the Real Property. There are exists no existing public improvements which may reasonably be expected outstanding option, right of first refusal or other contractual right to result in purchase, sell, assign or dispose of any special assessment against any Peabody Owned owned Real Property. Seller has all certificates of occupancy and Governmental Authorizations necessary for current and continued use and operation of the Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Allegheny Technologies Inc), Asset Purchase Agreement (Allegheny Technologies Inc)
Real Property. (a) Section 4.7(aSchedule 2.01(d) contains a true, complete and correct list of all Owned Real Property. True, complete and correct copies of all deeds to which any Seller is a grantee with respect to the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) as well as all Peabody Leases title insurance policies, opinions and (iii) all Mining Rights included abstracts, and surveys in connection with the Owned Real Property which are in the Peabody Propertiespossession of or under the control of any Seller have been delivered to Buyer. Section 4.7(aSchedule 3.09(a)(i) also separately and accurately identifies, in reasonable detail, any and all real property formerly owned by any Seller after January 1, 2015. Each applicable Seller is the sole owner of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used Owned Real Property and, except as of set forth on Schedule 3.09(a)(ii), holds the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its AffiliatesOwned Real Property in fee simple, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third partyhas good, insurable and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)marketable title, free and clear of any and all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There . Except as set forth in Schedule 3.09(a)(iii), no Seller has leased or otherwise granted to any person the right to use or occupy such Owned Real Property or any portion thereof. Except for this Agreement, there are no outstanding current or pending contracts for sale, options, rights of first offer or rights of first refusal to purchase any Peabody such Owned Real Property or any portion of thereof or any interest therein. The only real property used by any Seller in connection with the Business is the Leased Property and the Owned Real Property.
(db) Schedule 2.01(e) contains a true, complete and correct list of all Leased Property and all Real Property Leases. Sellers delivered to Buyer true, complete and correct copies of all Real Property Leases, including all extensions, amendments, supplements and modifications related thereto. Each Seller has good and marketable title to its leasehold interest in the Real Property Leases, free and clear of the Peabody any and all Encumbrances other than Permitted Encumbrances. Schedule 3.09(b)(i) separately and accurately identifies, in reasonable detail, any and all real property formerly leased by any Seller after January 1, 2015. Except as set forth on Schedule 3.09(b)(ii), no Seller has assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in any Real Property Lease. All Real Property Leases is are legal, valid, binding, enforceable, and in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto andeffect. There is no existing material default under any Real Property Lease by any Seller or, to the Knowledge of PeabodySellers, the other parties thereto, enforceable against Peabody by any landlord or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective termslessor. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) whichthat, with notice or lapse of time or both, would constitute a material default by any Seller or, to the Knowledge of Sellers, by any landlord or lessor, or permit termination, modification or acceleration of any Real Property Lease by any landlord or lessor; there are no disputes, oral agreements, or forbearance programs in effect as to any Real Property Lease. Other than Permitted Encumbrances, no Seller has assigned, transferred, conveyed, mortgaged, deeded in trust, or encumbered any interest in any Real Property Lease. Except as set forth on Schedule 3.09(b)(iii), the transactions contemplated hereby do not require the consent of any other party to a Real Property Lease, will not result in a breach of or default thereunderunder any Real Property Lease, and will not otherwise cause any Real Property Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following Closing. No Seller is in default of any payment obligation under any Real Property Lease.
(ec) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any The only real property used or held for use primarily by the Sellers in or related primarily to or necessary for connection with their respective Ordinary Course of Business is the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody BusinessReal Property.
(fd) There (i) have been no Proceedings or Claims, including condemnation proceedings, related to the Real Property (including Claims by any adjacent property owners relating to the use or operation of the Business), (ii) are no pending or, to the Knowledge of PeabodySellers, threatened condemnationProceedings or Claims, eminent domain including condemnation proceedings, related to any of the Real Property (including Claims by any adjacent property owners relating to the use or similar proceedings operation of the Business), and (iii) are no other matters materially and adversely affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned current use or occupancy of the Real Property.
(e) No Seller has received any written or oral notice for assessments for public improvements against the Real Property that are delinquent and remain unpaid or that will become due and payable on or prior to the Closing Date, and no such assessment has been proposed.
(f) There are no violations of any Legal Requirement related to the Real Property, no Seller has received notice of any such violation, and no Seller is aware of the basis for any such Claim, by any Person, of any such violation.
(g) All utility easements, rights Each Seller has received all required approvals of access Governmental Authorities (including Permits and certificates of occupancy or other easements such certificates permitting lawful occupancy and similar rights serving the Peabody Properties are legally enforceable to permit the operation use of the Peabody Business Real Property) required in substantially connection with its use of the manner in which Real Property.
(h) All buildings, plants and structures owned or leased by any Seller lie wholly within the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments boundaries of the Real Property and do not encroach upon the Peabody Properties property of, or otherwise conflict with the rights of, any other Person.
(i) Any and no improvements to all costs for labor and material for the construction, equipment, maintenance or repair of any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties Real Property have been paid in full.
(j) There are no material structural defects in any of the buildings, infrastructure (including walls, roofs or parking areas) or other improvements situated on the Real Property, and all of the current uses thereof) building systems are, in all material respects, in good condition and working order, and sufficient to conduct the Business in the manner currently and historically conducted by the applicable Seller and do not (i) violate set-back, building require any material repairs or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesreplacements.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Industrial Services of America Inc), Asset Purchase Agreement (Industrial Services of America Inc)
Real Property. (a) Section 4.7(a) None of the Peabody Disclosure Letter sets forth a correct and complete list as Acquired Entities owns any real property (whether beneficially or of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesrecord).
(b) Peabody Schedule 6.13(b) lists all surface leases (and the lands covered thereby) pursuant to which any Acquired Entity leases real property with a book or market value in excess of $50,000 (all such listed leases collectively, the “Scheduled Leases”), together with a controlled Affiliate general description of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Propertiesany material improvements located thereon, in each case specifying the case name of the lessor, lessee, sublessor or sublessee and the date and term of each lease. A true and complete copy of each of clauses (i)the Scheduled Leases, (iias amended to date, has been made available to Acquirer. The Person identified on Schedule 6.13(b) as the lessee or sublessee under any particular Scheduled Lease is the lessee or has succeeded to the rights of the lessee under such Scheduled Lease and (iii), owns the leasehold interest created pursuant to such lease free and clear of all Encumbrances (including Royalties), other than Liens except Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Liens. Each of the Peabody Leases Scheduled Lease is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabodyany MCE Party, the other parties theretoconstitutes a binding obligation of each landlord, lessor or sublessor thereunder, enforceable against Peabody such landlord, lessor or such Affiliates andsublessor in accordance with its terms subject to Creditor’s Rights. No event has occurred that constitutes, or that with the giving of notice or the passage of time or both would constitute, a default under any Scheduled Lease by any Acquired Entity or, to the Knowledge of Peabodyany MCE Party, the or by any other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Scheduled Lease has repudiated any provision thereofor would permit termination, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) normodification or, to the Knowledge of Peabodyany MCE Party, acceleration thereof by any party thereto other party thereto, is than an Acquired Entity. Each Person identified on Schedule 6.13(b) as the lessee or sublessee under any particular Scheduled Lease either owns the improvements located on the lands covered by such lease or validly occupies such improvements in breach accordance with the terms of any such lease free and clear of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice all Liens except Permitted Liens or lapse of time or both, would constitute a breach or default thereunderexcept as otherwise described on Schedule 6.13(b).
(ec) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any The real property used or held for use primarily in or related primarily leased pursuant to or necessary for the operation or conduct Scheduled Leases constitutes all of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily (“Real Property”) which has been used in or related primarily to or necessary for connection with the operation or conduct ownership and operations of the Peabody Business.
(f) business of the Acquired Entities since December 31, 2010. Except as set forth on Schedule 6.13(c), other than the Acquired Entities, there are no parties in possession of any portion of any Real Property as lessees, subtenants, tenants at sufferance or trespassers. The Acquired Entities have full right and authority to use and operate all of the improvements located on the Real Property, subject to applicable Laws and Permitted Liens. Such improvements are being used, occupied and maintained in all material respects by the Acquired Entities in accordance with all applicable easements, Contracts, permits, insurance requirements, restrictions, building setback lines, covenants and reservations. There are is no pending or, to the Knowledge of Peabodyany MCE Party, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any proceeding or special assessment against affecting any Peabody Owned of the Real Property, nor have any of the MCE Parties or any Acquired Entity received written notification that any such proceeding or assessment is contemplated. Except as set forth on Schedule 6.13(c), to the Knowledge of any MCE Party, the improvements located on the Real Property (the “Facilities”) are free from material structural and mechanical defects (including roofs) and have been used by Acquired Entities in the ordinary course of business and remain as of the date hereof in suitable and adequate condition for such continued use. The Acquired Entities have not deferred maintenance of the Facilities in contemplation of the transactions contemplated by this Agreement. All of the Real Property has direct access to public roads without the use of any easement, license or right of way.
(d) The MCE Parties have made available to Acquirer true and complete copies of all deeds, leases, title opinions, title insurance policies and surveys in the possession of the Acquired Entities that relate to the Real Property, together with copies of all reports of any engineers, environmental consultants or other consultants in the possession of the Acquired Entities relating to any of the Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Contribution Agreement, Contribution Agreement (New Source Energy Partners L.P.)
Real Property. (a) Section 4.7(a) Each of CBI and its Subsidiaries has good title free and clear of all Liens to all real property owned by such entities (the Peabody Disclosure Letter sets forth a correct and complete list as of “Owned Properties”), except for Liens that do not materially detract from the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature present use of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody A true and complete copy of each agreement pursuant to which CBI or a controlled Affiliate any of Peabodyits Subsidiaries leases any real property, as applicablesuch agreements, together with any amendments, modifications and other supplements thereto (collectively, the “Leases”), has (i) good heretofore been made available to FNB. Each Lease is valid, binding and indefeasible fee title to all Peabody Owned Real Property, (ii) good enforceable against CBI or its applicable Subsidiary in accordance with its terms and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect effect, except as may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally and constitutes the legal, valid and binding obligations availability of Peabody equitable remedies. There is not under any such Lease any material existing default by CBI or any of its Affiliates that are parties thereto andSubsidiaries or, to the Knowledge knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of PeabodyCBI, any other party thereto, is in breach of or any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, which with notice or lapse of time or both, both would constitute such a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct default. The consummation of the Peabody Business or has any options to acquire any fee interest or leasehold interest transactions this Agreement contemplates will not cause defaults under the Leases, provided necessary consents disclosed in any real property for use primarily the CBI Disclosure Schedule have been obtained and are in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent propertyeffect, except for any such encroachments as have not had and default which would not reasonably be expected to havenot, individually or in the aggregate, have a material adverse effect Material Adverse Effect on CBI and its Subsidiaries taken as a particular item of real property. whole.
(c) The improvements Owned Properties and the properties leased pursuant to the Peabody Properties Leases (the “Leased Properties”) constitute all of the real estate on which CBI and its Subsidiaries maintain their facilities or conduct their business as of the date of this Agreement, except for locations the loss of which would not result in a Material Adverse Effect on CBI and its Subsidiaries taken as a whole.
(d) A true and complete copy of each agreement pursuant to which CBI or any of its Subsidiaries leases real property to a third party (“Third Party”), such agreements, together with any amendments, modifications and other supplements thereto (collectively, the “Third Party Leases”), has heretofore been made available to FNB. Each Third Party Lease is valid, binding and enforceable in accordance with its terms and is in full force and effect, except as may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally and the current uses thereof) do not (i) violate set-backavailability of equitable remedies. To the knowledge of CBI, building or side linesthere are no existing defaults by the tenant under any Third Party Lease, or any applicable land use covenants, zoning regulations event which with notice or similar enforceable restrictions lapse of time or (ii) encroach both which would constitute such a default and which individually or in the aggregate would have a Material Adverse Effect on any easements located on the Peabody PropertiesCBI and its Subsidiaries taken as a whole.
Appears in 2 contracts
Sources: Merger Agreement (Comm Bancorp Inc), Agreement and Plan of Merger (FNB Corp/Fl/)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use The Company does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to own any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody Schedule 2.15(b) sets forth a true, correct and complete list of all real property leased by the Company, whether as lessee or a controlled Affiliate lessor (the “Leased Real Property”), each Contract relating to the use and/or occupancy of Peabodysuch Leased Real Property, as applicableincluding all leases, has subleases, agreements to lease or other occupancy agreements (written or oral) entered into by the Company, including all amendments thereto (the “Real Property Leases”), and any lease guarantees, tenant estoppels, subordinations, non-disturbance and attornment agreements, including all amendments thereto, and all condominium documents and service agreements relating thereto. Schedule 2.15(b) also lists (i) good and indefeasible fee title to all Peabody Owned the street address of each Real Property, Property Lease; (ii) good the landlord under the Real Property Lease, the rent currently being paid pursuant to each Real Property Lease, and valid title to the leasehold estates in all Peabody Leases expiration of the term of such Real Property Lease; and (iii) good the current use under such Real Property Lease. The Company has a valid and valid title to enforceable leasehold interest in all Mining Rights included its Leased Real Property reflected in the Peabody Properties, in Financial Statements or acquired after the case of each of clauses (i), (ii) and (iii), Recent Balance Sheet Date. All Leased Real Property is free and clear of all Encumbrances (including Royalties)Liens, other than Permitted EncumbrancesLiens.
(c) The Company has delivered or made available to Buyer true, complete and correct copies of all Real Property Leases. Each Real Property Lease is in full force and effect; all rents and additional rents due to date on each Real Property Lease have been paid and neither the Company nor any other party to any such Real Property Lease has received notice of any breach or default nor repudiated any material provision thereof. The Company has not received a notice of cancellation or termination with respect to any Real Property Lease. There are exists no outstanding optionsevent that, rights with notice or lapse of first offer time, or rights of first refusal to purchase any Peabody Property both, would constitute a material breach or default by the Company or any portion other party thereto, under any of the Real Property Leases. The Company is not a sublessor or grantor under any interest thereinsublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any leased or subleased Leased Real Property.
(d) Each The Leased Real Property comprises all of the Peabody Leases real property used or intended to be used in, or otherwise related to, the Business. The use and operation of the Leased Real Property in the conduct of the Business does not violate in any material respect any Law, covenant, condition, restriction, easement, license, Permit or Contract. To the Knowledge of the Company, there are no material Actions pending nor threatened against or affecting the Leased Real Property or any portion thereof or interest therein in the nature or in lieu of condemnation or eminent domain proceedings.
(e) Except as set forth on Schedule 2.15(e), no consent of any landlord or any other party is required under any Real Property Lease as the result of the Transactions contemplated hereby or to keep such Real Property Lease in full force and effect after the execution and constitutes delivery of this Agreement and the legal, valid consummation of the Transactions contemplated hereby.
(f) All improvements necessary for the Business and binding obligations constituting part of Peabody or its Affiliates the Leased Real Property have been completed and the Company has not received any written notice that are parties thereto the Leased Real Property is not in compliance with applicable Law and, to the Knowledge of Peabodythe Company, there are presently in effect all Permits required by Law. The Company has not received any written notice that there does not exist at least the other parties thereto, enforceable against Peabody minimum access required by applicable subdivision or such Affiliates and, similar Law to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Leased Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 2 contracts
Sources: Merger Agreement (Columbia Care Inc.), Merger Agreement (Columbia Care Inc.)
Real Property. (a) Section 4.7(a) Each of the Peabody Disclosure Letter sets forth Company and each Guarantor shall grant to the Collateral Agent, within 60 days of the acquisition thereof (or such longer period as determined by the Collateral Agent in its sole discretion), a correct security interest in and complete list as of Mortgage on each Real Property acquired after the date hereof having a fair market value in excess of $15,000,000 (idetermined at the time of acquisition thereof) that is owned in fee by the Company or such Guarantor, excluding the fee interest in Real Property underlying the New World Headquarters (provided, that neither the Company nor its Subsidiaries shall grant any Lien securing any Indebtedness on such fee interest). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory to the Collateral Agent and shall constitute a valid and enforceable perfected Lien subject only to Permitted Liens or other Liens reasonably acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all Peabody Owned taxes, fees and other charges payable in connection with recordation of such Mortgage. The Company or such Guarantor shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired fee owned Real PropertyProperty (including a title policy in form and substance reasonably acceptable to the Collateral Agent, a survey and local counsel opinion (iiin form and substance reasonably satisfactory to the Collateral Agent) all Peabody Leases in respect of such Mortgage, a “Standard Flood Hazard Determination Form” of the Federal Emergency Management Agency and (iii) all Mining Rights included any successor Governmental Authority performing a similar function with respect to any Flood Hazard Property and any appraisal required to comply with the Financial Institutions Reform, Recovery and Enforcement Act of 1989). The Company will maintain, or cause to be maintained, flood insurance with respect to each Flood Hazard Property that is located in a community that participates in the Peabody Properties. Section 4.7(a) National Flood Program, in each case in compliance with any applicable regulations of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as Board of Governors of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side linesUnited States Federal Reserve System, or any applicable land use covenantssuccessor thereto. The parties hereto agree that no Security Document or Additional Security Document shall be governed by the laws of any jurisdiction other than the laws of the United States or any state thereof and no opinion shall be required for foreign law matters; provided, zoning regulations that if a Canadian Subsidiary becomes a Canadian Credit Party hereunder, Security Documents or similar enforceable restrictions or (ii) encroach on any easements located on Additional Security Documents related to the Peabody PropertiesObligations of the Canadian Credit Parties may be governed by the laws of Canada and opinions with respect to Canadian matters may be required.
Appears in 2 contracts
Sources: Credit Agreement (American Greetings Corp), Credit Agreement (American Greetings Corp)
Real Property. (ai) Section 4.7(aNRM does not have any Owned Real Property. Schedule 5(o)(i) of the Peabody Disclosure Letter Schedule sets forth a correct the addresses of all Owned Real Property of each Company. Other than as set forth on Schedule 5(o)(i) of the Disclosure Schedule (which shall be satisfied and complete list removed as of the date hereof of (i) all Peabody Closing), each Company has good and marketable indefeasible fee simple title to their respective Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), any Liens other than Permitted Encumbrances.
Liens. Each Company has delivered to Buyer accurate and complete copies of: (cA) There all deeds and other instruments (as recorded) by which such Company acquired its interests in the Owned Real Property; (B) all title reports, surveys, zoning reports and title policies with respect to the Owned Real Property; and (C) all agreements granting purchase options, rights of first offer or rights of first refusal in favor of any other Person with respect to the Owned Real Property. Other than as set forth on Schedule 5(o)(i) of the Disclosure Schedule, there are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Owned Real Property or any portion of thereof or interest therein. Neither NRM nor either Company is a party to any written or oral contract or agreement, or has or has granted an option to purchase any Owned Real Property or interest therein.
(dii) Each NRM leases all of its Leased Real Property from Valiant. Schedule 5(o)(ii) of the Peabody Leases Disclosure Schedule sets forth an accurate and complete description (by street address of the subject leased real property, the date of the lease, sublease, license or other occupancy right and the name of the parties thereto) of all Leased Real Property of NRM and each Company. NRM and each Company hold valid leasehold or subleasehold interests in their respective Leased Real Property, free and clear of any Liens other than Permitted Liens. Each Lease is legal, valid, binding, enforceable and in full force and effect effect. NRM and constitutes the legal, valid each Company has delivered to Buyer accurate and binding obligations of Peabody or its Affiliates that are parties thereto and, complete copies of: (A) all Leases relating to the Knowledge Leased Real Property, and in the case of Peabodyany oral Lease, a summary of the other parties theretomaterial terms of such Lease and (B) all title reports, enforceable against Peabody zoning reports, surveys and title policies in the possession or such Affiliates and, control of NRM or either Company with respect to the Knowledge of Peabody, the other parties thereto, in accordance with their respective termsLeased Real Property. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (Neither NRM nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, either Company is in breach of or default under any of its respective obligations thereundersuch Lease, and no event has occurred (including the failure to obtain any consent) or circumstance exists which, with notice or lapse the delivery of notice, the passage of time or both, would constitute such a breach or default thereunder.
(e) Except for default, or permit the Peabody Propertiestermination, neither Peabody nor any modification or acceleration of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct rent under such Lease. NRM’s and each Company’s possession and quiet enjoyment of the Peabody Business or their respective Leased Real Property under such Leases has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending ornot been disturbed and, to the Knowledge of PeabodySeller, threatened condemnationNRM, eminent domain or similar proceedings affecting the Peabody Properties. There and each Company, there are no existing public improvements which may reasonably be expected disputes with respect to result any such Leases. Neither NRM nor either Company has 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 any special assessment against such Lease. The rental rate set forth in each Lease of the Leased Real Property is the actual rental rate being paid, and there are no separate agreements or understandings with respect thereto. Each Lease of the Leased Real Property grants the tenant or subtenant under the Lease the exclusive right to use and occupy the demised premises thereunder.
(iii) Except as set forth on Schedule 5(o)(iii) of the Disclosure Schedule:
(A) NRM and each Company are in possession of their respective Owned Real Property and Leased Real Property; and (B) to the Knowledge of Seller, NRM, and each Company, there are no contractual or legal restrictions that preclude or restrict the ability of NRM or either Company to use its Owned Real Property or Leased Real Property for the purposes for which it is currently being used. Except as set forth on Schedule 5(o)(iii) of the Disclosure Schedule, neither NRM nor either Company has leased, subleased, licensed or otherwise granted to any Peabody Person the right to use or occupy any portion of their respective Owned Real Property or Leased Real Property.
(giv) All utility easementsTo the Knowledge of Seller, NRM, and each Company, all buildings, structures, fixtures and other improvements included on the Real Property (collectively, the “Improvements”) are in material compliance with all Applicable Laws. To the Knowledge of Seller, NRM and each Company, no part of any Improvement encroaches on, or otherwise conflicts with the property rights of any Person in and to any real property not included in the Real Property, and there are no buildings, structures, fixtures or other improvements primarily situated on adjoining property which encroach on any part of the Real Property, or otherwise conflict with the property rights of NRM or either Company. Each parcel of Real Property: (i) abuts on and has direct vehicular access to an improved public road or has access to an improved public road via a permanent, irrevocable, appurtenant easement improved with a road benefiting such parcel of Real Property and comprising a part of the Real Property; and (ii) is supplied with public or quasi-public utilities and other easements and similar rights serving the Peabody Properties are legally enforceable to permit services appropriate for the operation of the Peabody Business in substantially Improvements located on such parcel and the manner in which operation of NRM’s or either Company’s businesses thereon. To the Peabody Business is currently operated. Other than Permitted EncumbrancesKnowledge Seller, NRM and each Company, there are is no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent propertyexisting, except for such encroachments as have not had and proposed or threatened eminent domain or other public acquisition Claim that would not reasonably be expected to have, individually or result in the aggregatetaking of all or any part of any Real Property or that would prevent or hinder the continued use and enjoyment of any Real Property as heretofore used by the applicable Company.
(v) To the Knowledge of Seller, a material adverse effect on a particular item NRM and each Company, all of real propertythe Improvements are in good operating condition and repair and suitable for their purpose (ordinary wear and tear excepted). The improvements Improvements are suitable for the purposes for which they are being used by the applicable Company and have been maintained in accordance with normal industry practice. The Real Property constitutes all such property used in or necessary to conduct the Peabody Properties (businesses of NRM and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertieseach Company.
Appears in 2 contracts
Sources: Merger and Membership Interest Purchase Agreement, Merger and Membership Interests Purchase Agreement
Real Property. (a) Section 4.7(a4.19(a) of the Peabody Company Disclosure Letter sets forth contains a correct complete and complete accurate list as of the date hereof of all real property owned in fee by the Company and/or the Company Subsidiaries (i) all Peabody the “Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties”). Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody The Company and/or a Company Subsidiary has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible marketable fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties)Encumbrances, except Permitted Encumbrances. To the Knowledge of the Company, neither the Company nor any Company Subsidiary has leased or otherwise granted to any Person the right to use or occupy any Owned Real Property or any portion thereof and other than Permitted Encumbrances.
(c) There are no the purchase rights granted pursuant to this Agreement, neither the Company nor any Company Subsidiary have entered into any agreements currently in effect pursuant to which the Company or any Company Subsidiary has granted any outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Owned Real Property or any portion of thereof or any interest therein, and neither the Company nor any Company Subsidiaries are party to any agreement or option to purchase any real property or interest therein which is currently in effect.
(db) Each Section 4.19(b) of the Peabody Leases Company Disclosure Letter contains a complete and accurate list as of the date hereof of all real property leased by the Company and/or the Company Subsidiaries as lessee (the “Leased Real Property”). The Company Subsidiaries have a valid leasehold estate in all Leased Real Property, free and clear of all Encumbrances, except Permitted Encumbrances. The Company has provided to the Parent true and complete copies of each of the leases and subleases (including all amendments, extensions, renewals, guaranties and other agreements with respect thereto) (each, a “Lease” and, collectively, the “Leases”) pursuant to which the Leased Real Property is in full force and effect and constitutes held. As of the legaldate hereof, valid and binding obligations there exists no monetary or other material default under any such Lease by the Company, any of Peabody or its Affiliates that are parties thereto andthe Company Subsidiaries or, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of PeabodyCompany, any other party thereto, is in breach of nor any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would reasonably constitute a breach monetary or other material default thereunder.
(e) Except for thereunder by the Peabody PropertiesCompany, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending Company Subsidiaries or, to the Knowledge of Peabodythe Company, threatened any other party thereto, and neither the Company nor any Company Subsidiary has received notice of any such condition. The Company Subsidiaries have not subleased, licensed or otherwise granted any Person the right to use or occupy the Leased Real Property or any portion thereof and have not collaterally assigned or granted any other security interest in any Lease or any interest therein except for any such collateral assignments, grants or security interests which shall be released at or before Closing. All of the Leases provided on Section 4.19(b) of the Company Disclosure Letter are valid, binding and enforceable in accordance with their terms and, subject to the Equitable Exceptions, are in full force and effect as of the date hereof, and the Company or one of the Company Subsidiaries holds a valid and existing leasehold interest under each such Lease.
(c) Neither the Company nor any Company Subsidiary has received notice of a parcel of Leased Real Property or Owned Real Property being subject to any governmental decree or order to be sold or is being condemned, expropriated or otherwise taken by any public authority with or without payment of compensation therefore, nor, to the Knowledge of the Company, has any such condemnation, eminent domain expropriation or similar proceedings affecting the Peabody Properties. taking been proposed.
(d) There are no existing public improvements which may reasonably be expected contractual or, to result in the Company’s knowledge, other legal restrictions that materially preclude or restrict the ability to use any special assessment against any Peabody Leased Real Property or the Owned Real Property.
(g) All utility easements, rights Property by the Company or any Company Subsidiary for the current or contemplated use of access and other easements and similar rights serving the Peabody Properties are legally enforceable such real property that is material to permit the operation of the Peabody Business in substantially business of the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesCompany.
Appears in 2 contracts
Sources: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc)
Real Property. (a) Section 4.7(aSchedule 4.15(a) contains a complete and accurate list of the Peabody Disclosure Letter sets forth all premises currently leased or subleased or otherwise used or occupied by a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with CHC Company for the operation of the Peabody Business. No Peabody Property is leased or subleased to any third partybusiness of a CHC Company, and Peabody of all current leases, lease guarantees, agreements and documents related thereto, including all amendments, terminations and modifications thereof or waivers thereto (collectively, the “CHC Real Property Leases”), as well as the current annual rent and term under each CHC Real Property Lease. CHC has not granted provided to Delta a true and complete copy of each of the CHC Real Property Leases, and in the case of any third oral CHC Real Property Lease, a written summary of the material terms of such CHC Real Property Lease. The CHC Real Property Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect. To the Knowledge of CHC, no event has occurred which (whether with or without notice, lapse of time or both or the happening or occurrence of any other event) would constitute a default on the part of a CHC Company or any other party under any licenseof the CHC Real Property Leases, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesand no CHC Company has received notice of any such condition.
(b) Peabody or Schedule 4.15(b) contains a controlled Affiliate complete and accurate list of Peabody, as applicable, has all property owned by CHC (i) good and indefeasible fee title to all Peabody “CHC Owned Real Property”), (ii) good and valid title including the name of the record owner of each CHC Owned Real Property. CHC is not a lessor, sublessor or grantor under any lease, sublease, consent, license or other instrument granting to another Person any right to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in possession, use, occupancy or enjoyment of the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted EncumbrancesOwned Real Property.
(c) There All certificates of occupancy, permits, licenses, franchises, approvals and authorizations (collectively, the “Real Property Permits”) of all Governmental Authorities, boards of fire underwriters, associations or any other Person having jurisdiction over the Owned Real Property that are no outstanding options, rights of first offer required or rights of first refusal appropriate to purchase any Peabody use or occupy the Owned Real Property or to operate the Company’s business as currently conducted thereon, have been issued and are in full force and effect. Neither Seller nor the CHC Companies have received any portion of or any interest therein.
written (d) Each or, to the Knowledge of the Peabody Seller, oral) notice from any Governmental Authorities or other Person having jurisdiction over the CHC Owned Real Property threatening a suspension, revocation, modification or cancellation of any material Real Property Permit. CHC has not received any written notice from any Governmental Authorities of any uncured violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the CHC Companies, the Leased Real Property or the Owned Real Property or the ability of the Seller and the CHC Companies to consummate the transactions contemplated hereby. CHC Companies have not received any written notice that any insurance policy held by or on behalf of the CHC Companies relating to or affecting the CHC Owned Real Property or the CHC Real Property Leases is not in full force and effect and constitutes the legal, valid and binding obligations Company has not received any written notice of Peabody default that remains uncured or its Affiliates that are parties thereto and, notice terminating or threatening to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or terminate any such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderinsurance policy.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Real Property. (a) Section 4.7(a) The data site to which the Buyer have been provided access includes a true and complete statement of: the name and number of each Store Property; the name and address of the Peabody Disclosure Letter sets forth a correct and complete list as of applicable landlord; the date hereof and description of each document comprising the applicable Store Lease and Assigned Sublease; the date the Store Property opened; with respect to each Store Lease, the expiration date, number of remaining renewal options, and current option notice deadline; the number of square feet (i) all Peabody Owned Real Property, (ii) all Peabody leasable and payable); the current base rent per square foot and the current base rent per square foot; and for each store for fiscal year 2016: the gross sales for percentage rent purposes under the Store Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted EncumbrancesAssigned Subleases.
(b) Peabody The Seller does not, except for the Store Properties, own, lease, license or has any other occupancy contracts, arrangements or interests with respect to or governing the Store Properties or that impacts or benefits the operation of the Stores and the Store Properties or generates income for the Store Properties, including any options or rights of first refusal, first offer, or first negotiation to lease or purchase not contained in the Store Leases or the Assigned Subleases.
(c) Except for the obligations arising under that certain agreement with CVS Health, the Store Leases, and the Assigned Subleases, there are no agreements, understandings or undertakings, oral or written, pertaining to the Store Leases or the Assigned Subleases, the security deposits, the Store Properties or Seller’s use or occupation of the Store Properties or any portion thereof. To the Seller’s Knowledge, no Person that is not a controlled Affiliate Seller has any right to possess, use or occupy the Store Properties.
(d) Subject to entry of Peabodythe Sale Order, as applicable, Seller has (i) a good and indefeasible fee title valid leasehold interest in and to all Peabody Owned Real Property, the Store Leases and the Assigned Subleases and (ii) good and valid title to to, or a valid leasehold interest in, all Equipment, Improvements and other material tangible personal property constituting the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Assets, free and clear of all Encumbrances (including Royalties), other than Permitted EncumbrancesLiens.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(de) Each of the Peabody Store Leases and Assigned Subleases is legal, valid, binding and enforceable against each party thereto in accordance with its respective terms (except for any direct or indirect restriction or limitation or condition on Seller’s assignment of the Store Leases and the Assigned Subleases and the Store Properties, and the operation of any business by the Buyer after the Closing, to Buyer which shall not be of any force or effect pursuant to the Sale Order) and is in full force and effect effect, and constitutes subject to entry of the legalSale Order, valid and binding obligations no event of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties default currently exists thereunder by any counterparty thereto, enforceable against Peabody no event has occurred thereunder that after giving notice and the passage of any applicable cure period or both would constitute and event of default, and no Seller has delivered or received any notice from any other party to any such Affiliates andStore Lease or Assigned Sublease of the termination or surrender thereof, to and the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has Store Leases and Assigned Subleases have not been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, supplemented other than as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Businessset forth on Disclosure Schedule 3.4(e).
(f) There are no pending orThe Store Properties comply in all material respects with all Laws, and the Seller and the Debtors have not received any written notice regarding any actual or alleged material violation or any material liabilities or potential liabilities (including but not limited to the Knowledge of Peabodyany investigatory, threatened condemnationremedial or corrective obligations) under any Laws, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected in each case, relating to result in any special assessment against any Peabody Owned Real Store Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties There are legally enforceable to permit the operation no existing or proposed assessment or benefit districts affecting or which may affect any of the Peabody Business Store Properties, which result (or will result) in substantially the manner imposition of any incremental sales tax or similar incremental tax on transactions between Buyer and its customers.
(h) There is no pending or, to Sellers’ knowledge, threatened litigation or claims for indemnification arising under or with respect to any of the Store Leases or Assigned Subleases or in connection with the Seller’s occupancy or use of any of the Store Properties.
(i) None of the Store Properties (nor any material portion of any shopping center in which the Peabody Business any Store Property is currently operated. Other than Permitted Encumbranceslocated, there are no encroachments upon the Peabody Properties and no improvements including but not limited to any Peabody Properties encroach onto any adjacent propertyparking access, except for such encroachments as have not had and would not common areas, which might reasonably be expected to have, individually or in the aggregate, have a material adverse effect on a particular item any operations of real property. The improvements any Store Property) is subject to the Peabody Properties (any material damage or destruction from fire, flood or other casualty and the current uses thereof) do not (i) violate set-back, all building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiessystems and other Improvements are in good working order and condition.
Appears in 1 contract
Sources: Asset Purchase Agreement
Real Property. (a) Section 4.7(a) of TXEN owns no fee simple interest in real property or easement rights. Except as disclosed on Schedule 10.13, TXEN does not lease any real property. All real property noted on Schedule 10.13 as being leased is referred to herein as the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned "Leased Real Property, (ii) " and all Peabody Leases leases relating to the Leased Real Property are disclosed on Schedule 10.13 and (iii) all Mining Rights included in are referred to herein as the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody "Leases." TXEN has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title leasehold as to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Leased Real Property leased by it, free and clear of all Encumbrances (including Royalties)mortgages, security interests, title defects, pledges, liens and the possibility of liens, charges, tenancies, restrictions and encumbrances other than Permitted Encumbrances.
(c) There Taxes and assessments, both general and special, which are no outstanding optionsa lien but not yet due and payable that do not, rights individually or in the aggregate, materially detract from the value of first offer or rights of first refusal to purchase any Peabody the Leased Real Property or any portion materially impair the use and operation thereof in carrying on the business of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective termsTXEN. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge best knowledge of PeabodyTXEN, threatened condemnation, proceedings in eminent domain involving the Leased Real Property or any portion thereof, or for a sale in lieu thereof, or of any plans for a possible widening of the streets abutting the Leased Real Property or the imposition of any special taxes or assessments against the Leased Real Property or any portion thereof. To the best knowledge of TXEN, the applicable zoning (without reliance on any variance, special permit or nonconforming use or other similar proceedings affecting use), building, environmental, health and safety laws and regulations permit as a matter of right and without the Peabody Propertiesincurrence by Surviving Corporation of any obligation or liability (including the obligation to incur any costs or expenses) the continued use of the Leased Real Property by Surviving Corporation for the same purposes and uses as same have been heretofore used by TXEN, including the operation of TXEN's business.
(b) Except as disclosed on Schedule 10.13, there are no outstanding written or oral leases covering or in any way affecting, and there are no tenants occupying or having the right to occupy, the Leased Real Property or any part thereof, other than the Leases. To the best of TXEN's knowledge, no person or entity has any right with respect to such Leased Real Property (whether by option to purchase, land contract, or otherwise) which would prevent or interfere with possession or use of the Leased Real Property by the Surviving Corporation on and after the Effective Date. 15
(c) The Leases are in full force and effect. TXEN has heretofore provided to NRC a complete, true, and correct copy of the Leases, including any and all modifications or amendments thereof and any supplements thereto. All material terms, conditions, and provisions of the Leases to be performed by TXEN and, to the best knowledge of TXEN, by the landlords, have been duly and timely performed and complied with. To the best knowledge of TXEN, no event has occurred or failed to occur which with the giving of notice, the passage of time, or both, would constitute a default by the landlords or TXEN under any of the Leases. The landlords have not waived, or extended the time for performance of, any obligation of TXEN under any of the Leases. There are no existing public improvements which may reasonably be expected security deposits or prepaid rent (including last month's rent in advance) with respect to result in any special assessment against any Peabody Owned the Leased Real Property.
(gd) All utility easements, rights To the best knowledge of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted EncumbrancesTXEN, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent propertyprohibitions or other limitations, except for such encroachments as have not had and would not reasonably be expected to have, individually or whether contained in the aggregateLeases or otherwise, a material adverse effect on a particular item of real propertyTXEN's right to transfer the Leased Real Property in connection with this Agreement. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-backExcept as specifically noted on Schedule 10.13, building or side linesno consent, authorization, or any applicable land use covenants, zoning regulations approval is required under the Leases in connection with the consummation of the transactions contemplated hereby or similar enforceable restrictions or (ii) encroach on any easements located on TXEN's ability to consummate the Peabody Propertiestransactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Nichols Txen Corp)
Real Property. (a) Section 4.7(aSchedule 3.20(a) of the Peabody Disclosure Letter sets forth a correct and complete list lists as of the date hereof of hereof: (i) all Peabody real property owned by Pubco, the Company, or their respective Subsidiaries (the “Owned Real Property, ”); and (ii) all Peabody Leases other real property leased, subleased or licensed by Pubco, the Company, or any of their respective Subsidiaries, as the lessee, sublessee or licensee, with annual rent payments by any such lessee in excess of $200,000 (the “Leased Real Property”). Schedule 3.20(a) also identifies with respect to the Leased Real Property, each lease, sublease, license and (iii) all Mining Rights included in any other Contract under which such Leased Real Property is occupied or used by Pubco, the Peabody Properties. Section 4.7(a) Company, or any of their respective Subsidiaries, including the date of and legal name of each of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by parties to such lease, sublease, license or other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its AffiliatesContract, and such use does not interfere with each amendment, restatement, modification or supplement thereto (the operation “Real Property Leases”). The Company has delivered or made available to Piermont, complete, accurate and correct copies, in all material respects, of the Peabody Business. No Peabody all Real Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted EncumbrancesLeases.
(b) Peabody The Company or a controlled Affiliate of Peabodyits applicable Subsidiary, as applicable, has (i) good and indefeasible marketable fee simple title to all Peabody the Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the each case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties)Liens, other than except Permitted EncumbrancesLiens. Except as would not reasonably be expected to have a material and adverse effect on Pubco, the Company, and their respective Subsidiaries, taken as a whole, none of Pubco, the Company, or any of their resepctive Subsidiaries has received written notice of any, and to the Knowledge of the Company, there is no, default under any restrictive covenants affecting the Owned Real Property.
(c) There are no outstanding optionsExcept as would not reasonably be expected to have a Company Material Adverse Effect, rights of first offer Pubco, the Company, or rights of first refusal to purchase any Peabody their applicable respective Subsidiary has a valid, binding and enforceable leasehold, subleasehold or license interest (as applicable) in all Leased Real Property. All Real Property Leases under which Pubco, the Company, or any portion of their respective Subsidiaries is a lessee or any interest therein.
(d) Each of the Peabody Leases is sublessee are in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms, subject to the Enforceability Exceptions, except as would not reasonably be expected to have a Company Material Adverse Effect. No Peabody Lease None of Pubco, the Company, or any of their respective Subsidiaries has been amended, modified or supplemented. No party to received any Peabody Lease has repudiated any provision thereofwritten notice of any, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabodythe Company there is no, default under any other party theretosuch Real Property Lease, is in breach of except as would not reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its respective obligations thereunderSubsidiaries has (i) exercised any termination rights with respect to any Real Property Lease, or (ii) received written notice from the landlord under any Real Property Lease indicating that the landlord has exercised a termination right with respect to such Real Property Lease.
(d) The interests of Pubco, the Company, and no event has occurred their respective Subsidiaries in the Real Property constitutes all interests in real property (including i) currently used, occupied or held for use in any material respect in connection with the failure to obtain any consentbusiness of Pubco, the Company, and its respective Subsidiaries as presently conducted and (ii) whichnecessary for the continued operation of the business of Pubco, with notice or lapse of time or boththe Company, would constitute a breach or default thereunderand its respective Subsidiaries.
(e) Except for the Peabody Properties, neither Peabody nor There do not exist any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending actual or, to the Knowledge of Peabodythe Company, threatened condemnation, condemnation or eminent domain proceedings that affect any interests of Pubco, the Company, or similar proceedings affecting any of their respective Subsidiaries in the Peabody PropertiesReal Property or any part thereof, and none of Pubco, the Company, or any of their resepctive Subsidiaries have received any notice, oral or written, of the intention of any Governmental Authority or other Person to take or use any interest in the Real Property or any part thereof or interest therein. There are no existing public improvements which may reasonably be expected to result None of Pubco, the Company, or any of their resepctive Subsidiaries have received any currently outstanding and uncured written notice alleging that the Real Property is in violation of any applicable Laws in any special assessment against material respect.
(f) None of Pubco, the Company, or any Peabody Owned of their resepctive Subsidiaries is a party to any purchase option, right of first refusal or other contractual right or obligation to sell, assign or dispose of its interests in the Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Sources: Merger Agreement (Piermont Valley Acquisition Corp)
Real Property. (a) Section 4.7(a4.13(a) of the Peabody Company Disclosure Letter sets forth contains a complete and correct and complete list of the common street address for all Owned Real Property as of the date hereof and sets forth the applicable Acquired Company owning such property. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, an Acquired Company owns such Owned Real Property in fee simple title free and clear of any Liens, subject only to Permitted Liens. To the Knowledge of the Company, no Real Property is subject to any PILOT agreement.
(b) Section 4.13(b) of the Company Disclosure Letter contains a complete and correct list of (i) all Peabody Owned Leasehold Real Property as of the date hereof, including the common street address and the applicable Acquired Company leasing or subleasing such Leasehold Real Property and (ii) each ground lease, lease or sublease pursuant to which the applicable Acquired Company leases such Leasehold Real Property as lessee or sublessee, including all amendments thereto, guaranties thereof and each other written agreement relating thereto (the “Leasehold Ground Leases”). Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) an Acquired Company has a valid and enforceable leasehold estate in all Leasehold Real Property and either good and valid fee simple title to or valid leasehold interest in all buildings, structures and other improvements and fixtures located on or under such Leasehold Real Property, in each case free and clear of any Liens, subject only to Permitted Liens and (ii) all Peabody no Acquired Company has received any written notice from, or delivered any written notice to, any lessor or sub-lessor of such Leasehold Real Property of the existence of any default, event or circumstance that, with notice or lapse of time, or both, would constitute a default by the party that is the lessee, sub-lessee, lessor or sub-lessor of such Leasehold Real Property. Complete and correct copies of the Leasehold Ground Leases and have been made available to Parent.
(iiic) all Mining Rights included in the Peabody Properties. Section 4.7(a4.13(c) of the Peabody Company Disclosure Letter also identifies contains (i) a complete and correct list of all Peabody Properties that also are used Owned Real Property as of the date hereof by other businesses of Peabody which is subject to a ground lease or its Affiliates similar arrangement under which the Company or any Subsidiary is the landlord or sub-landlord or serves in a similar capacity, and describes the nature (ii) each ground lease, lease or sublease of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i)but excluding any Space Leases, (ii) together with the date and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties including all amendments thereto, in accordance with their respective termsguaranties thereof and each other written agreement relating thereto) (the “Fee Ground Leases”). No Peabody Lease has been amendedNeither the Company nor any of its Subsidiaries, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereofon the one hand, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabodythe Company, any other party theretoparty, on the other hand, is in breach default under any Fee Ground Lease, except for defaults that do not have or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Complete and correct copies of the Fee Ground Leases have, in all material respects, been made available to Parent.
(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, to the Knowledge of the Company, as of the date of this Agreement (i) none of the Acquired Companies has received written notice of any violation of any Law affecting any portion of any of its respective obligations thereunderthe Real Properties issued by any Governmental Authority that has not been resolved and (ii) none of the Acquired Companies has received written notice to the effect that there are (A) condemnation or rezoning proceedings that are pending or threatened in writing with respect to any of the Real Properties, and no event has occurred (including B) zoning, building or similar Laws, codes, ordinances, orders or regulations that are violated by the failure to obtain maintenance, operation or use of any consentbuildings or other improvements on any of the Real Properties, or (C) which, with notice any defaults under any Contract evidencing any Lien or lapse other Contract affecting any of time or both, would constitute a breach or default thereunderthe Real Properties.
(e) Except for as would not, individually or in the Peabody Propertiesaggregate, neither Peabody nor any of its Affiliates owns reasonably be expected to have a Company Material Adverse Effect, (i) the Acquired Companies have good and marketable title to, or leases any real a valid and enforceable leasehold interest in, all material personal property owned, used or held for use primarily in or related primarily by them, and (ii) the Acquired Companies’ ownership of any such personal property is free and clear of any Liens, subject only to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any Permitted Liens.
(f) No fee interest in real property or leasehold interest in any real property ground lease has been conveyed, transferred, assigned, or otherwise disposed of by the Acquired Companies (a “Prior Sale Contract”) since July 1, 2024, except for use primarily in easements or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to similar interests. To the Knowledge of Peabodythe Company as of the date hereof, threatened condemnationnone of the Acquired Companies has received any written notice of any outstanding claims under any Prior Sale Contract, eminent domain and no event or similar proceedings affecting circumstance has occurred under any Prior Sale Contract, in each case, that with the Peabody Properties. There are no existing public improvements which may passage of time or receipt of notice would reasonably be expected to result in liability to any special assessment against any Peabody Owned Real PropertyAcquired Company in an amount, in the aggregate, in excess of $1,500,000.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation Section 4.13(g) of the Peabody Business Company Disclosure Letter includes the rent roll for the Space Leases (such information in substantially Section 4.13(g) of the manner Company Disclosure Letter, the “Rent Roll”), which Rent Roll is accurate as of the applicable dates set forth in which the Peabody Business Rent Roll except such discrepancies as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Complete and correct copies in all material respects of the Rent Roll have been made available to Parent. To the Knowledge of the Company, complete and correct copies of all Space Leases as of the date hereof have, in all material respects, been made available to Parent. Neither the Company nor any of its Subsidiaries, on the one hand, nor, to the Knowledge of the Company, any other party, on the other hand, is currently operatedin default under any Space Lease, except for defaults that do not have or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Other than Permitted EncumbrancesTo the knowledge of the Company, there are no encroachments upon brokerage commissions or brokerage fees which are now due or which may be due in the Peabody Properties and no improvements future relating to any Peabody of the Space Leases.
(h) The budget set forth in Section 4.13(h)(i) of the Company Disclosure Letter (the “Operating Expenditure Budget”) discloses, as of the date set forth in the applicable budget, the aggregate budgeted operating expenses of the Acquired Companies for the Real Properties encroach onto through December 31, 2026. The budget set forth in Section 4.13(h)(ii) of the Company Disclosure Letter (the “Capital Expenditure Budget”) discloses, as of the date hereof, the budgeted amount of all allowances (including tenant allowances, and leasing commissions), expenditures and fundings, budgeted to be funded by or on behalf of the Company or any adjacent propertyof its Subsidiaries with respect to such Real Properties, except for such encroachments including in connection with renovations, construction projects, restorations, developments and redevelopments and any projects that are in pre-development, in each case with respect to each project or line item in excess of $200,000; provided that both the Operating Expenditure Budget and the Capital Expenditure Budget are subject to change up to and beyond the date set forth in the most recent applicable budget, subject to Section 6.01(b)(xviii). Except as have has not had and had, or, as would not reasonably be expected likely to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not Company Material Adverse Effect, (i) violate set-backthere are no pending common area maintenance (CAM), building or side lines, or any applicable land use covenants, zoning regulations percentage rent or similar enforceable restrictions audits by any third party of which the Company has Knowledge or has received written notice, (ii) encroach there are no pending claims regarding violation of co-tenancy clauses in any Space Leases of which the Company has Knowledge or has received written notice, (iii) there are no pending real property tax protests or litigation, investigation, complaint or action regarding any Company Properties or Space Leases of which the Company has Knowledge or has received written notice, (iv) to the Knowledge of the Company, no tenants under Fee Ground Leases or Space Leases have “gone dark” or given written notice of its intention to “go dark” or filed for bankruptcy and (v) to the Knowledge of the Company, there are no brokerage commissions or fees which are now due or which may be due in the future relating to any of the Fee Ground Leases. To the Company’s Knowledge, all rent has been properly calculated and billed to tenants pursuant to the Fee Ground Leases and Space Leases and by landlord pursuant to the Leasehold Ground Leases, except for such failures to properly calculate or bill rent as has not had, or would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect.
(i) There is no outstanding Indebtedness for borrowed money pursuant to which the Company or any Subsidiary of Company is a lender as of the date hereof to any Person other than to a wholly owned Subsidiary of the Company in an amount in excess of $300,000.
(j) No Real Property is owned directly or indirectly jointly by the Company or any Subsidiary with any Person other than the Company or any Subsidiary.
(k) Section 4.13(k) of the Company Disclosure Letter lists each Real Property that is (i) under development or redevelopment as of the date hereof (other than normal repair and maintenance but including any construction project the cost of which is in excess of (A) $1,000,000 annually or (B) $2,000,000 in the aggregate) and describes (1) the status of such development or redevelopment as of the date hereof (including the anticipated completion date), and (2) the estimated costs to complete, (ii) subject to a binding agreement for development or redevelopment or commencement of construction by an Acquired Company involving (A) annual payments of more than $1,000,000 or (B) aggregate payments of more than $2,000,000 (each, a “Construction Contract”) or (iii) land held for development, in each case, other than those pertaining to customary capital repairs, replacements and other similar correction of deferred maintenance items in the ordinary course of business.
(l) As of the date hereof, (i) neither the Company nor any Subsidiary of the Company has exercised any Transfer Right with respect to real property or one or more Persons for aggregate consideration in excess of $1,000,000, which transaction has not yet been consummated and (ii) no third party has exercised in writing any Transfer Right with respect to any Subsidiary of the Company or Real Property or Participation Agreement, which transaction has not yet been consummated.
(m) No Person other than an Acquired Company manages or operates any of the Real Property on behalf of any easements located on Acquired Company or, to the Peabody knowledge of the Company, a Minority Equity Joint Venture.
(n) The Company has not received any written notices from lenders currently requiring material repairs or other material alterations to Company Properties.
(o) No Acquired Company has received written notice that any Acquired Company is in violation or default under any operation and reciprocal easement agreement or other similar agreements to which a member of the Company or any of its Subsidiaries is a party (each, a “REA”), except for violations or defaults that have been cured or that have not had or would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect. No Acquired Company has delivered a written default notice to a party under a REA, except for defaults that have been cured or that have not had or would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect.
(p) Section 4.13(p) of the Company Disclosure Letter sets forth the common street address for all real property owned or ground leased by the Joint Ventures or any of their Subsidiaries in whole or in part, and setting forth the Joint Venture Agreements pertaining thereto (the “JV Real Property”).
(q) No material claim has been made against any policy of title insurance for Real Property insuring, as of the effective date of such insurance policy, fee simple title interest held by the applicable Acquired Company.
(r) such policy of title insurance issued for any Real Property that remains outstanding as of the date hereof.
Appears in 1 contract
Real Property. Section 4(a)(xviii) of the Stockholders’ Disclosure Schedule lists, as of the date of this Agreement: (a) Section 4.7(aeach of the senior living facilities directly or indirectly owned, leased or subleased by any of the Companies or any of the Designated Subsidiaries (the “Facilities”), (b) the street address and the licensed capacity of each such Facility, (c) the Designated Subsidiary that owns each such Facility, and, if applicable, the identity of any other Designated Subsidiary or NY License-Holder that leases such Facility from the relevant owner, (d) where applicable, the identity of the current lease agreement for each lease pursuant to which a Company or a Designated Subsidiary leases all or part of a Facility from a third party (each a “Lease”) and (e) any other material Real Estate Agreement (excluding Resident Leases and Permitted Liens). No Company or Designated Subsidiary leases, subleases or otherwise permits the occupancy by any third party (other than a resident under a Resident Lease and other than a commercial enterprise that provides services to residents at a Facility) of all or any portion of any of the Peabody Disclosure Letter sets forth a correct Facilities. None of the Companies or the Designated Subsidiaries owns, leases, subleases any real property other than the Facilities. With respect to each parcel of real property owned by the Companies and complete list the Designated Subsidiaries (each, an “Owned Real Property” which Owned Real Property as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included shall be so designated in the Peabody Properties. Section 4.7(a4(a)(xviii) of the Peabody Stockholders’ Disclosure Letter also identifies all Peabody Properties Schedule):
(A) the Company or Designated Subsidiary that also are used as is the record owner of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation Facility indicated in Section 4(a)(xviii)(A) of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
Stockholders’ Disclosure Schedule (b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Propertiesor, in the case of each of clauses (i)the Facility known as “Marland Place”, (iiMarland Place Associates Limited Partnership) that is located on such Owned Real Property has good, marketable and (iii)valid fee simple title to such Owned Real Property, free and clear of all Encumbrances (including Royalties)any mortgage, deed of trust, claim against title, pledge, security interest, easement, right of way, reservation, agreement or other than lien, encumbrance or title defect of any kind that reasonably could be expected to impair in any material respect the current use, occupancy or operation by the Companies or the Designated Subsidiaries of the property subject thereto, except only for Permitted Encumbrances.Liens;
(cB) There all Facilities located on the Owned Real Property are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(dx) Each of the Peabody Leases is in full force supplied with utilities and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary services adequate for the operation or conduct of said Facilities, (y) are in working order sufficient for their normal operation in the business of the Peabody Business or has Companies and the Designated Subsidiaries, subject only to normal wear and tear, and without any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary material structural defects and (z) are adequate and suitable for the operation or conduct purposes for which they are presently being used;
(C) each of the Peabody Business.Facilities located on the Owned Real Property 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;
(fD) There there are no pending or, to the Knowledge of Peabodythe Stockholders, threatened condemnation proceedings relating to the Owned Real Property;
(E) there are no outstanding agreements, contracts, commitments, options, or rights of first refusal granted to third parties to purchase the Owned Real Property, the Facilities thereon, or any portion thereof or interest therein;
(i) there are no material existing zoning violations with respect to any Owned Real Property, (ii) there are no pending proceedings initiated by or on behalf of any Company or Company Subsidiary to change or redefine the zoning classification of all or any portion of any the Owned Real Property, and (iii) no Stockholder, Company or Designated Subsidiary has received written notice of, and to the Knowledge of the Stockholders there is no, proposed proceeding of such kind in each case that reasonably could be expected to have a material adverse effect on the current use, occupancy or operation of any Facility; and
(G) the Owned Real Property is assessed by local property assessors as a tax parcel or parcels separate from all other tax parcels. With respect to the Leased Real Property:
(H) the Company or Designated Subsidiary that is the lessee under each Real Estate Agreement listed on Section 4(a)(xviii) of the Stockholders’ Disclosure Schedule has valid leasehold title to such Leased Real Property, free and clear of any mortgage, pledge, security interest, easement or other lien or encumbrance of any kind, other than Permitted Liens, that impair in any material respect the current use, occupancy or operation by the Companies or the Designated Subsidiaries of the property subject thereto;
(I) a correct and complete copy of each Lease and all amendments thereto have been made available to Acquiror.
(J) all Facilities located on the Leased Real Property are (x) supplied with utilities and other services adequate for the present operation of said Facilities, (y) are in working order sufficient for their normal operation in the business of the Companies and the Designated Subsidiaries, subject only to normal wear and tear and (z) are adequate and suitable for the purposes for which they are presently being used, occupied or operated;
(K) each of the Facilities located on the Leased Real Property has sufficient access to and from publicly dedicated streets, without any constraints that interfere with the normal use, occupancy and operation of the Facilities;
(L) except as set forth in the relevant Lease, the landlord therefor does not have any outstanding options or rights to terminate any Lease with regard to Leased Real Property prior to the expiration of the term thereof (except for termination rights following a casualty, condemnation, eminent domain default or similar proceedings affecting the Peabody Properties. There event);
(M) there are no pending or, to the Knowledge of the Stockholders, threatened condemnation proceedings relating to the Leased Real Property; and
(N) (i) there are no material existing public improvements which may zoning violations with respect to any Leased Real Property, (ii) there are no pending proceedings initiated by any Company or Company Subsidiary to change or redefine in any material respect the zoning classification of all or any portion of any the Leased Real Property, and (iii) no Stockholder, Company or Designated Subsidiary has received written notice of, and to the Knowledge of the Stockholders there is no, proposed proceeding of such kind, in each case that reasonably could be expected to have a material adverse effect on the current use, occupancy or operation of any Facility located on such Leased Real Property. With respect to both the Owned Real Property and the Leased Real Property:
(O) The Companies’ or the applicable Designated Subsidiary’s fee simple or leasehold title to each Owned Real Property or Leased Real Property is insured pursuant to a title insurance policy duly issued by a national title insurance company (each such policy, a “Company Title Insurance Policy”) and, to the Knowledge of the Stockholders, each Company Title Insurance Policy is valid, in full force and effect and no claim has been made thereunder;
(P) Section 4(a)(xviii)(P) of the Stockholders’ Disclosure Schedule lists, as of the date of this Agreement, each material renovation or construction project with aggregate projected costs in excess of $2,000,000 currently being performed at any Real Property (the “Construction Projects”). Section 4(a)(xviii)(P) of the Stockholders’ Disclosure Schedule sets forth, as of the date of this Agreement, the budgeted cost and cost to complete each Construction Project. None of the Companies or Designated Subsidiaries has received written notice of material default by it of any obligation with respect to the Construction Projects and, to the Knowledge of the Stockholders, the contractors obligated to complete any of the Construction Projects are not in material default with respect to such obligations;
(Q) As of the date hereof, to the Knowledge of the Stockholders, the Companies and the Designated Subsidiaries have not received any written notice from the relevant taxing authority of (i) an increase in the assessed value and/or millage rate applicable to any Owned Real Property that reasonably can be expected to result in any special assessment against any Peabody an increase of greater than 5% in the real property taxes payable with respect to that Owned Real Property.
Property for the next taxable period (g) All utility easements, rights of access and other easements and similar rights serving as measured against the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or real property taxes owed in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereofcomparable period) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach the imposition of any public improvement assessment or other special charge applicable to any Owned Real Property involving an amount payable in the next tax period that will exceed the amount payable for such item in the current tax period, if any, by greater than $100,000; and
(R) A Company or a Designated Subsidiary has valid title to all material personal property located on any easements located on Real Property, free and clear of all liens, except for Permitted Liens and liens that are immaterial or relate to debt and encumbrances and which do not materially detract from the Peabody Propertiesvalue of such property.
(S) each of the Real Estate Agreements is in full force and effect and is valid, binding and, to the Knowledge of the Stockholders, enforceable in accordance with its terms against the lessor or lessee. Neither any Company nor any Designated Subsidiary has received written notice of any default by it or, to the Knowledge of the Stockholders, by any other party, pursuant to the terms of any Real Estate Agreement. The Parties agree that the representations in this Section 4(a)(xviii) do not relate to and shall not be interpreted as addressing compliance with Environmental Laws, it being understood that all representations relating to those matters are set forth exclusively in Section 4(a)(xiii).
Appears in 1 contract
Sources: Merger Agreement (Ventas Inc)
Real Property. (a) Section 4.7(aSchedule 4.6(a) of the Peabody Disclosure Letter sets forth a complete and correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) together with all Peabody Leases and (iii) all Mining Rights included appurtenant rights used in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of connection with such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted EncumbrancesReal Property.
(b) Peabody or a controlled Affiliate of PeabodyExcept as set forth on Schedule 4.6(b):
(i) Each Target Entity, as applicable, has (i) good good, valid and indefeasible marketable fee simple title to all Peabody of the Owned Real Property, (ii) good and valid title such properties are not subject to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties)any Lien, other than Permitted EncumbrancesLiens. Seller has delivered, or caused to be delivered, to Buyer copies of all title policies or title commitments, surveys, plans, zoning information or letters and other material documents in the possession of Seller or the Target Entities with respect to such Owned Real Property.
(cii) There All leases pursuant to which such Target Entity leases real property are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto enforceable against such Target Entity, and, to the Knowledge of Peabody, Seller and the other parties theretoapplicable Target Entity, enforceable against Peabody or by such Affiliates andTarget Entity, to the Knowledge of Peabody, the other parties thereto, in each case in accordance with their respective terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect, affecting the enforcement of creditors’ rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity. No Peabody Lease Seller has been amendedMade Available to Buyer complete and accurate copies of all leases with respect to the Leased Real Property, modified including any agreements, licenses, subleases, guaranties and any extensions, renewals, amendments or supplementedmodifications thereof with respect to such Leased Real Property. No party Each lessee of Leased Real Property has a good, valid and undisturbed leasehold interest in the Leased Real Property, in each case free and clear of any Liens except for Permitted Liens.
(iii) With respect to all of the Real Property, except for temporary non-material use of the Real Property in furtherance of the business of the Target Entities in the ordinary course and in accordance with applicable legal requirements, neither Seller nor any of its Subsidiaries or Affiliates (including the Target Entities) has leased, subleased or otherwise granted to any Peabody Lease has repudiated Person (other than the Target Entities), the right to use or occupy the Real Property or any provision portion thereof.
(iv) There are no pending, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, or to the Knowledge of PeabodySeller, any other party theretothreatened, is in breach of any of its respective obligations thereundercondemnation or eminent domain proceedings, and no event has occurred (including the failure to obtain any consent) which, with notice lawsuits or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, administrative actions relating to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, . The Target Entities have reasonably sufficient rights of access ingress and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements egress with respect to the Peabody Properties (applicable Real Property pursuant to public streets and the current uses thereof) do not (i) violate set-back, building roads or side lines, by easements or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiespermits.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Black Hills Corp /Sd/)
Real Property. (a) Section 4.7(aThe Company does not own any real property or interests in real property. Schedule 4.11(a) of the Peabody Disclosure Letter sets forth a complete list of all real property and interests in real property leased by the Company (individually, a “Company Leased Property” and collectively, the “Company Leased Properties”) as lessee or lessor, including a description of each real property lease (“Real Property Lease”) for such Company Leased Properties (including the name of the third party lessor or lessee and the date of the lease or sublease and all amendments thereto). The Company Leased Properties constitute all material interests in real property currently used, occupied or currently held for use in connection with the business of the Company. All of the Company Leased Properties and the buildings, fixtures and improvements thereon are in materially good operating condition (ordinary wear and tear excepted) without structural defects, and all mechanical and other systems located thereon are in materially good operating condition, and no condition exists requiring material repairs, alterations or corrections. To the Knowledge of the Company, none of the improvements located on the Company Leased Properties constitute a legal non-conforming use. The Company has delivered or made available to Parent true, correct and complete list as copies of the date hereof of (i) all Peabody Owned Real PropertyProperty Leases, (ii) together with all Peabody Leases and (iii) all Mining Rights included in the Peabody Propertiesamendments, modifications or supplements, if any, thereto. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody The Company Leased Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased subject to any third partyleases, and Peabody has not granted any third party any licenserights of first refusal, possessory options to purchase or occupancy right or other similar right therein other than Permitted Encumbrancesrights of occupancy, except the Real Property Leases set forth on Schedule 4.11(a).
(b) Peabody or To the Knowledge of the Company, the Company has a controlled Affiliate of Peabodyvalid, as applicable, has (i) good binding and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the enforceable leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of interest under each of clauses (i), (ii) and (iii)the Real Property Leases under which it is a lessee, free and clear of all Encumbrances (including Royalties), Liens other than Permitted Encumbrances.
(c) There are no outstanding optionsExceptions. The Company has not received or given any notice of any default or event that with notice or lapse of time, rights of first offer or rights of first refusal to purchase both, would constitute a default by the Company under any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Real Property Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabodythe Company, no other party is in default of any of the other parties theretoReal Property Leases, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No and no party to any Peabody Real Property Lease has repudiated exercised any provision thereof, termination rights with respect thereto.
(c) The Company has all material certificates of occupancy and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach material Permits of any Governmental Body necessary for the use and operation of its respective obligations thereundereach Company Leased Property as currently used and operated by the Company. No default or violation, and no or event has occurred (including that with the failure to obtain any consent) which, with notice or lapse of time or bothgiving of notice or both would become a default or violation, would constitute a breach has occurred in the due observance of any Permit other than any defaults or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to haveviolations that would, individually or in the aggregate, not reasonably be expected to have a material adverse effect on a particular item of real property. The improvements Material Adverse Effect.
(d) There does not exist any actual or, to the Peabody Properties (Knowledge of the Company, threatened or contemplated condemnation or eminent domain proceedings that affect any Company Leased Property or any part thereof, and the current uses thereof) do Company has not (i) violate set-back, building received any written notice of the intention of any Governmental Body or side lines, other Person to take or use all or any applicable land use covenantspart thereof.
(e) The Company has not received any written notice from any insurance company that has issued a policy with respect to any Company Leased Property requiring performance of any structural or other repairs or alterations to such Company Leased Property.
(f) The Company does not own, zoning regulations does not hold, is not obligated under and is not a party to, any option, right of first refusal or similar enforceable restrictions other contractual right to purchase, acquire, sell, assign or (ii) encroach on dispose of any easements located on the Peabody Propertiesreal estate or any portion thereof or interest therein.
Appears in 1 contract
Real Property. (a) Section 4.7(aSchedule 4.10(a) of the Peabody Disclosure Letter Schedules sets forth a correct true and complete list as of each parcel of real property owned by any Target Company (together with all improvements thereon and appurtenances thereto, the “Owned Real Property” and collectively, the “Owned Real Properties”). The applicable Target Company has good and valid fee simple title to all Owned Real Property, free and clear of all Liens other than Permitted Liens.
(b) Schedule 4.10(b) of the date hereof Disclosure Schedules sets forth a true and complete list of each lease, sublease or other occupancy agreement (each, a “Lease”) under which any Target Company leases, subleases or otherwise occupies any real property owned by a third Person (the “Leased Real Property”), specifying in each case the parties thereto and the location of the Leased Real Property covered thereby. The Owned Real Property and the Leased Real Property comprise all of the real property used in the conduct of the Business.
(i) all Peabody Owned The applicable Target Company has a valid leasehold interest in each parcel of Leased Real Property, (ii) all Peabody Leases each Lease is in full force and effect, (iii) all Mining Rights included in the Peabody Properties. Section 4.7(arent and other material sums and charges payable thereunder are current and (iv) none of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as Target Companies is in Default under any Lease, and to the Knowledge of the date hereof by Company, no other businesses of Peabody or its Affiliates party thereto is in Default under any Lease. Each Lease is a valid and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation binding obligation of the Peabody Business. No Peabody Property is leased other party or subleased to any third partyparties thereto, and Peabody has not granted any third enforceable against such party any licenseor parties in accordance with its terms, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title except that such enforcement may be subject to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest thereinEnforceability Exceptions.
(d) Each No Target Company has received written notice since January 1, 2015 that (and since January 1, 2018, to the Knowledge of the Peabody Leases is Company, the Company has not received any written or oral notice that) the uses and operations of the Real Property by the Target Companies do not comply in full force all material respects with all applicable Laws, covenants, conditions, restrictions, easements, disposition agreements and effect and constitutes similar matters affecting the legalReal Property.
(e) No material portion of the Real Properties are subject to any pending condemnation or eminent domain Litigation by any Person, valid and binding obligations of Peabody or its Affiliates that are parties thereto including without limitation, a Governmental Authority and, to the Knowledge of Peabodythe Company, the there is no threatened condemnation, eminent domain, or other parties Litigation with respect thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, No Person other than the applicable Target Company is in possession of any portion of the Real Property. No Contract exists granting any Person (other than a Target Company) the right to use or occupy any portion of the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easementsTo the Knowledge of the Company, rights of access all structures and structural, mechanical and other easements physical systems that constitute part of the Real Property are free of material defects and similar rights serving in good operating condition and repair, ordinary wear and tear excepted. To the Peabody Properties Knowledge of the Company, no maintenance or repair to the Real Property or any such structural, mechanical or other physical system has been unreasonably deferred.
(h) To the Knowledge of the Company, all utilities required by any applicable Law or by use and operation of the Real Property in the conduct of the Business as presently conducted are legally enforceable operable and are adequate to permit service the Real Property in the operation of the Peabody Business as presently conducted.
(i) No Target Company has received written notice since January 1, 2015 of (and since January 1, 2018, to the Knowledge of the Company, the Company has not received any written or oral notice of) a condition existing that would reasonably be expected to result in substantially the manner termination or reduction of the current access from the Real Property to existing roads, water, sewer or other utility services presently serving the Real Property. To the Knowledge of the Company, none of the Target Companies’ equipment located at the Real Property or the operation or maintenance thereof, or the conduct of the Business, violates in which any material respect any restrictive covenant or encroaches in any material respect on any property owned by a third Person or any easement, right of way or other restriction affecting the Peabody Real Property. To the Knowledge of the Company, the Real Property and its continued use, occupancy and operation as used, occupied and operated in the conduct of the Business as presently conducted does not constitute a nonconforming use and is currently operated. Other than Permitted Encumbrances, there are no encroachments upon not the Peabody Properties and no improvements to subject of a special use license under any Peabody Properties encroach onto any adjacent propertyapplicable Law, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material be materially adverse effect on a particular item of real property. The improvements to the Peabody Properties Business, Assets, operations or condition of the Company (and the current uses thereof) do not (i) violate set-backtogether with its Subsidiaries), building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiestaken as a whole.
Appears in 1 contract
Sources: Merger Agreement (SPX Corp)
Real Property. (a) Section 4.7(a3.9(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of Schedule lists the date hereof of (i) all Peabody street or postal address of the parcel of real property owned by the Company or its Subsidiaries; and (ii) record title holder of such real property (the “Owned Real Property”). Neither the Company nor any of its subsidiaries owns any real property other than the Owned Real Property. With respect to the Owned Real Property, (i) the Company or one of its Subsidiaries has good fee simple title thereto, free and clear of Liens, except Permitted Liens; (ii) all Peabody Leases neither the Company nor any of its Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also there are used as of the date hereof by other businesses of Peabody no outstanding options to purchase such Owned Real Property or its Affiliates and describes the nature of such use by such other businesses of Peabody any portion thereof or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesinterest therein.
(b) Peabody or a controlled Affiliate Section 3.9(b) of Peabody, as applicable, has the Disclosure Schedule sets forth (i) good a true, correct and indefeasible fee title to complete list of all Peabody real property leased, licensed, subleased, used or otherwise occupied (but not owned) by the Company or any of its Subsidiaries (the “Leased Real Property” and the Leased Real Property, together with the Owned Real Property, collectively, the “Real Property”) (ii) good the Contracts, leases, licenses, subleases or other occupancy agreements pursuant to which such Leased Real Property is leased, including any modifications, amendments, supplements, assignments, assignations and valid title to extension notices affecting the leasehold estates in all Peabody Leases Leased Real Property, each, a “Real Property Lease”, and (iii) good and valid title to all Mining Rights included in collectively the Peabody Properties, in the case of each of clauses (i“Real Property Leases”), (ii) the street or postal address of each parcel of Leased Real Property, (iii) the identity of the lessor, lessee, and current occupant (if different from lessee) of each such parcel of Leased Real Property, (iv) the rental amount currently paid and the expiration of the term of the Real Property Lease for each Leased Real Property, (v) the guarantors of each Real Property Lease, if any, and (iii)vi) the amount of all security deposits currently held by the applicable landlord. The Leased Real Property constitutes all parcels of real property and interests in real property currently used in the conduct of the business of the Company and its Subsidiaries. The Company has made available to Cash Purchaser in the Data Room true, correct and complete copies of each Real Property Lease and none of the Real Property Leases have been modified except to the extent that such modifications are disclosed by the copies delivered or made available to Cash Purchaser.
(c) Except as set forth in Section 3.9(c) of the Disclosure Schedule, each of the Company and its Subsidiaries, as applicable, (i) has a good and valid leasehold interest (or in Scotland a valid and marketable interest in the tenant’s right to the lease) in all of its Leased Real Property, and in Scotland, there being, to Seller’s Knowledge, no insurance policies relating to any issue of title affecting any of the Leased Real Property, in each case, free and clear of all Encumbrances (including Royalties)Liens, other than Permitted Encumbrances.
Liens, (cii) enjoys peaceful and undisturbed possession of each Leased Real Property, and (iii) is not a sublessor or grantor under any sublease or other instrument granting to any other Person any right to the possession, lease, occupancy or enjoyment of any Leased Real Property. There are no outstanding optionsPersons, rights of first offer or rights of first refusal to purchase any Peabody Property other than the Company or any portion Subsidiary, in occupation or possession of or any interest thereinLeased Real Property.
(d) Each Real Property Lease in respect of the Peabody Leases Leased Real Property is a valid, existing and binding obligation of the Company or its Subsidiaries, as applicable, is in full force and effect and constitutes is enforceable in accordance with its terms with respect to the legal, valid Company and binding obligations of Peabody or its Affiliates that are parties thereto Subsidiaries and, to the Knowledge of PeabodySeller’s Knowledge, the other parties thereto, enforceable against Peabody or such Affiliates and, thereto except to the Knowledge of Peabodyextent that such enforcement may be affected by Laws relating to bankruptcy, the other parties theretoreorganization, in accordance with their respective terms. No Peabody Lease has been amended, modified insolvency or supplementedcreditors’ rights. No party to any Peabody a Real Property Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) noris in monetary or material non-monetary breach or default thereunder and, to the Knowledge of PeabodySeller’s Knowledge, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) whichthat, with or without notice or lapse of time time, or both, would constitute a monetary or material non-monetary breach of or monetary or material non-monetary default thereunder.
under, or give rise to a right of termination, cancellation, irritancy or acceleration of any material obligation under any Real Property Lease. Except as set forth in Section 3.9(d) of the Disclosure Schedule, since the Lookback Date (e1) Except for all rents and other sums due under the Peabody PropertiesReal Property Leases have been paid, neither Peabody nor (2) the Company or its Subsidiaries, as applicable, has performed, in all material respects, all material obligations to be performed by it under each Real Property Lease, (3) all obligations of the landlord under the Real Property Leases have been completed and accepted in all material respects, and (4) there are no material pending or threatened in writing claims or demands by the landlord under any Real Property Lease. Each Real Property and the use and operation thereof in the conduct of the Company’s or its Subsidiaries’, as applicable, business does not violate in any material respect any applicable Law or Order, covenant, restriction, easement, license or permit and there are no contractual or legal restrictions that preclude or restrict the Company’s, or any of its Affiliates owns or leases any real property used or held Subsidiaries’, as applicable, ability to use, in all material respects, each Real Property for use primarily the purposes for which it is currently used. The facilities, structures and improvements located on each Real Property are in or related primarily to or good condition and repair (ordinary wear and tear excepted) and are supplied with utilities and other services necessary and adequate for the operation of such facilities. With respect to each Real Property, neither the Company nor any Subsidiary has received any notice of any expropriation, compulsory purchase or conduct condemnation or proposed condemnation (or, in Scotland, other local authority or statutory notice) affecting the Real Property and there are no actions, suits, claims or proceedings pending or threatened in writing against or affecting the Real Property or any portion thereof or interest therein in the nature or in lieu of compulsory purchase, condemnation or eminent domain proceedings. Furthermore, in Scotland, no notice of any alleged breach of a title condition affecting the Peabody Business Leased Real Property has been received by the Company or any Subsidiary and the Company nor any Subsidiary has received notice of any options application to acquire any fee interest the Lands Tribunal to vary or leasehold interest in discharge any real property for use primarily in burdens, servitudes or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings lease terms affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Leased Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vse Corp)
Real Property. (a) Section 4.7(aThe Company and the Guarantors shall use commercially reasonable efforts to deliver to the Notes Collateral Agent within 90 days following the Issue Date, with respect to each real property asset owned by the Company or any Guarantor listed on Schedule A attached hereto (the “Initial Mortgaged Property”), the following:
(1) fully executed and notarized mortgages, deeds of trust or debentures encumbering the fee interest of the Peabody Disclosure Letter sets forth a correct and complete list Company or any Guarantor in each such Initial Mortgaged Property, together with such UCC-1 financing statements or other fixture filings as shall be appropriate with respect to such Initial Mortgaged Property;
(2) evidence that counterparts of the date hereof mortgages, deeds of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody trust or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabodydebentures, as applicable, has and such other documents referenced in clause (i1) good of this Section 10.10(a)) for each Initial Mortgaged Property have been filed or recorded (or have been delivered to the title insurance company and indefeasible fee are in form suitable for filing or recording) in all filing or recording offices that are reasonably necessary or desirable in order to create a valid and subsisting first priority Lien on the property described therein in favor of the Notes Collateral Agent;
(3) a fully paid and effective pro forma title to all Peabody Owned Real insurance policy, along with appropriate title affidavits, surveys, and zoning reports, in each case if required, and any other customary documents, certificates or deliverables required by a title company for each Initial Mortgaged Property, (ii) good which, upon the recording of the mortgages, deeds of trust or debentures, as applicable, will insure the mortgages, deeds of trust or debentures, as applicable, to be valid and valid title to subsisting Liens on the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)Initial Mortgaged Property described therein, free and clear of all Encumbrances material Liens, except Permitted Liens;
(including Royalties4) a written opinion from local counsel in each jurisdiction in which the Initial Mortgaged Property is located with respect to the creation, enforceability and perfection of Liens created by the applicable mortgage, deed of trust or debenture and any related fixture filings, in customary form and substance and subject to customary assumptions, limitations and qualifications; and
(5) prior to accepting any mortgage, deed of trust or debenture pursuant to this Section 10.10, the Company shall deliver to the Notes Collateral Agent and the Trustee an Officer’s Certificate to the effect that all conditions precedent provided for in this Indenture to the delivery of such mortgage, deed of trust or debenture, as applicable, have been complied with.
(b) To the extent any security interest in the Initial Mortgaged Property securing the Notes is not created or perfected, or such items listed in Section 10.10(a) have not been provided, on or prior to the Issue Date, the Company and the Guarantors will continue to use commercially reasonable efforts to take such actions (subject to Section 10.10(c) unless the Company determines that any further efforts to take any such action after 90 days following the Issue Date would be commercially futile, as evidenced by an Officer’s Certificate to that effect delivered to the Trustee), other than Permitted Encumbrances.
(c) There are no outstanding optionsFor the avoidance of doubt, rights it will not be a Default or Event of first offer Default if any security interest in the Initial Mortgaged Property securing the Notes is not created or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legalperfected, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, items listed in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may beSection 10.10(a) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to havebeen provided, individually or in if the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (Company and the current uses thereof) Guarantors are unable to do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesso using commercially reasonable efforts.
Appears in 1 contract
Sources: Indenture (Radio One, Inc.)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real PropertyThe Borrower has good, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good marketable and indefeasible title in fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), Mortgaged Property free and clear of all Encumbrances Liens except Permitted Liens. All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable legal requirements in connection with the transfer of the Mortgaged Property to the Borrower have been paid. Each Mortgage when properly recorded in the appropriate records, together with any Uniform Commercial Code Financing Statements required to be filed in connection therewith, will create (including Royalties)a) a valid, other than Permitted Encumbrances.
perfected first priority Lien on the Borrower's interest in the respective Mortgaged Property, (b) valid and perfected collateral assignments of, all leases relating to such Mortgaged Property, and (c) valid and perfected first priority security interests in all other related assets constituting Fixed Asset Collateral, all in accordance with the terms thereof, in each case subject only to any applicable Permitted Liens. All mortgage, recording, stamp, intangible or other similar taxes required to be paid by any Person under applicable legal requirements in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Loan Documents have been paid. No condemnation or other material proceeding has been commenced or, to Borrower's best knowledge, is contemplated with respect to all or part of the Mortgaged Property or for the relocation of roadways providing access to the Mortgaged Property. There are no claims for payment for work, labor or materials affecting the Mortgaged Property which are or may become a Lien prior to, or of equal priority with, the Liens created by the Loan Documents. Other than as disclosed to the Administrative Agent, there are no outstanding options, rights of first offer options to purchase or rights of first refusal to purchase any Peabody Property affecting all or any portion of or any interest therein.
(d) Each the Mortgaged Property. To the best of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of PeabodyBorrower's knowledge, the other parties ALTA survey delivered by Borrower with respect to each parcel of Mortgaged Property does not fail to reflect any material matter affecting the applicable Mortgaged Property or the title thereto. To the best of Borrower's knowledge, enforceable against Peabody or all of the improvements included in determining the appraised value of each parcel of Mortgaged Property lie wholly within the boundaries and building restriction lines of such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunderMortgaged Property, and no event has occurred (including improvement on an adjoining property encroaches upon such Mortgaged Property, and no easement or other encumbrance upon the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor Real Property encroaches upon any of its Affiliates owns or leases any real property used or held for use primarily the improvements, except in or related primarily to or necessary for each case those insured against by the operation or conduct title insurance policy insuring the Lien of the Peabody Business or has applicable Mortgage. Each parcel comprising each Mortgaged Property is a separate tax lot and is not a portion of any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct other tax lot that is not a part of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Propertiesapplicable Mortgaged Property. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted EncumbrancesTo Borrower's knowledge, there are no encroachments upon pending or proposed special or other assessments for public improvements or otherwise affecting any of the Peabody Properties and no improvements to Mortgaged Property, or any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The contemplated improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building Mortgaged Property that may result in such special or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesother assessments.
Appears in 1 contract
Real Property. (a) Section 4.7(a4.13(a) of the Peabody Company Disclosure Letter sets forth a forth, with respect to each parcel of the Company Leased Real Property existing as of the date hereof, the Contracts which provide the Company with rights to lease, sublease, license, use or otherwise occupy such parcel of the Company Leased Real Property as of the date hereof, including any amendments or modifications thereto and any guaranties thereof (all such Contracts, together with the Contracts that provide the Company with rights to lease, sublease, license, use or otherwise occupy the Company Leased Real Property as of the Closing Date, including any amendments or modifications thereto and any guaranties thereof, collectively, the “Company Leases”), the address (or other identifying description) of such parcel and the identity of the lessor, lessee and current occupant (if different from lessee) of such parcel. True, correct and complete list copies of all Company Leases existing as of the date hereof have been provided to Parent and true, correct and complete copies of (i) all Peabody Owned Real Property, (ii) all Peabody Company Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) existing as of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used Closing Date to the extent not existing as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Businesswill be provided to Parent at Closing. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has The Company (i) good has a valid and indefeasible fee title to all Peabody Owned binding leasehold interest in, and enjoys peaceful and undisturbed possession of, each parcel of the Company Leased Real Property, Property existing as of the date of this Agreement and (ii) good will have a valid and valid title to binding leasehold interest in each parcel of the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in Company Leased Real Property that will exist as of the Peabody PropertiesClosing Date, in the case of each of clauses (i), (ii) and (iii)case, free and clear of all Encumbrances (including Royalties)Liens, other than Permitted EncumbrancesLiens. The Company Leased Real Property constitutes all interests in real property currently used or held for use in connection with the business of the Company Entities. All Company Leases for Company Leased Real Property located in Germany are in compliance with the formal requirements of sec. 550, 126 of the German Civil Code (BGB).
(cb) There are no outstanding optionsWith respect to each Company Lease, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of neither the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) applicable Company Entity nor, to the Knowledge knowledge of Peabodythe Company, any other party thereto, counterparty thereto is in breach of default thereunder in any of its respective obligations thereundermaterial respect, and there are no event has occurred (including events which with the failure to obtain any consent) which, with notice or lapse passage of time or notice, or both, would constitute a material default thereunder on the part of such Company Entity, or, to the knowledge of the Company, any other party thereto. To the knowledge of the Company, no landlord, attorney, or other authorized Person has sought to confess judgment against the Company as tenant under any Company Lease. The Company Leased Real Property is in compliance in all material respects with all laws, rules, regulations and ordinances related to the business as it is currently conducted on such Company Leased Real Property. Except as otherwise indicated on Section 4.13(b) of the Company Disclosure Letter, no Company Entity has subleased or granted to a third party any right to use or occupy all or any portion of the Company Leased Real Property. True, correct and complete copies of all Contracts subleasing or granting to a third party any such rights existing as of the date hereof have been provided to Parent and true, correct and complete copies of all Contracts subleasing or granting to a third party any such rights existing as of the Closing Date to the extent not existing as of the date hereof will be provided to Parent at Closing.
(c) To the knowledge of the Company, there are no eminent domain or similar Proceedings pending or threatened in writing affecting all or any material portion of the Company Leased Real Property. To the knowledge of the Company, there is no writ, injunction, decree, order or judgment outstanding, nor any action claim, suit or other Proceeding pending or threatened in writing against any Company Entity or relating to the lease, use, occupancy or operation by any Company Entity of the Company Leased Real Property. The buildings, improvements and structures located on the Company Leased Real Property are in good operating condition and repair.
(d) Assuming that all consents, approvals, authorizations and other actions described herein or set forth in Section 4.13(d) of the Company Disclosure Letter have been obtained, the transactions contemplated by this Agreement do not require the consent of any other party to any Company Lease, will not result in a breach of or default thereunderunder any Company Lease, or otherwise cause any Company Lease to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the Closing.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates No Company Entity owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Businessproperty.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Sources: Merger Agreement (Meet Group, Inc.)
Real Property. (a) Section 4.7(a4.10(a) of the Peabody CCBCC Disclosure Letter sets forth a correct and complete list as Schedule lists the street address of each parcel of CCBCC Owned Real Property. A CCBCC Party or an Affiliate of the date hereof CCBCC Parties has good and transferable title to all of (i) the CCBCC Owned Real Property free and clear of all Peabody Liens, except for Permitted Liens or Liens created by or through the CCBU Parties or any of their Affiliates. There are no leases, licenses, or other occupancy agreements affecting the CCBCC Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) nor are there any tenants or occupants of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere CCBCC Owned Real Property with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesrights thereto.
(b) Peabody or Section 4.10(b) of the CCBCC Disclosure Schedule lists the street address of each parcel of CCBCC Leased Real Property and a controlled Affiliate list of Peabody, as applicable, has (i) good all leases and indefeasible fee title occupancy agreements with respect to all Peabody Owned the CCBCC Leased Real Property, (ii) good and valid title together with a notation as to which parcels constitute “CCBCC Critical Leased Property”. The CCBCC Parties have delivered to the leasehold estates in CCBU Parties a true, correct and complete copy of each such lease and occupancy agreement, together with all Peabody Leases and (iii) good and amendments thereto. A CCBCC Party or an Affiliate of the CCBCC Parties has a valid title to all Mining Rights included leasehold, usufruct or similar interest in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii)CCBCC Leased Real Property, free and clear of all Encumbrances (including Royalties), other than Liens except for Permitted EncumbrancesLiens or Liens created by or through the CCBU Parties or any of their Affiliates.
(c) There To the Knowledge of the CCBCC Parties, there are no outstanding options, rights condemnation or appropriation or similar proceedings pending or threatened against any of first offer or rights of first refusal to purchase any Peabody the CCBCC Owned Real Property or any portion of the CCBCC Leased Real Property (collectively, the “CCBCC Real Property”) or any interest thereinthe improvements thereon.
(d) Each The CCBCC Parties have not received written notice of the Peabody Leases is actual or pending imposition of any assessment against the CCBCC Real Property for public improvements.
(e) The CCBCC Parties have not received written notice from any Person within the past three (3) years of any default or breach under any covenant, condition, restriction, right of way, easement or license affecting the CCBCC Real Property, or any portion thereof, that remains uncured, except where any failure to cure would not result in a material cost or disruption to the CCBCC Business. Any easements and rights-of-way that serve the CCBCC Real Property are valid and enforceable, in full force and effect and constitutes the legalare not subject to any prior Liens (other than Permitted Liens) that could result in a forfeiture thereof, valid and binding obligations of Peabody except where such invalidity, unenforceability, ineffectiveness or its Affiliates that are parties thereto and, forfeiture would not result in a material cost or disruption to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody CCBCC Business.
(f) There All applicable permits, licenses and other evidences of compliance that are no pending orrequired for the occupancy, operation and use of the CCBCC Owned Real Property have been obtained and complied with, except where the failure to the Knowledge of Peabody, threatened condemnation, eminent domain so obtain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to comply would not result in any special assessment against any Peabody Owned Real Propertymaterial cost to the CCBCC Business.
(g) All utility easements, rights The CCBCC Parties have not received written notice of access and other easements and similar rights serving any special assessments to be levied against the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in CCBCC Real Property for which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and CCBU Parties would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesresponsible.
Appears in 1 contract
Sources: Asset Exchange Agreement (Coca Cola Bottling Co Consolidated /De/)
Real Property. (a) Section 4.7(aSchedule 3.15(a) of the Peabody Company Disclosure Letter Schedules sets forth a true, correct and complete list as of all real property owned by any Acquired Company (the date hereof of (i) all Peabody “Owned Real Property, (ii) all Peabody Leases ”). The Acquired Companies have good and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) marketable title to each of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(cEncumbrances which do not materially interfere with the Company’s use and enjoyment of the Owned Real Properties or materially detract from or diminish the value thereof. Schedule 3.15(a) There of the Company Disclosure Schedules, there are no outstanding purchase options, rights of first offer refusal or similar rights outstanding with respect to any of first refusal the Owned Real Properties. No Acquired Company has received notice of any pending, and to purchase the Company’s knowledge there is no threatened, condemnation with respect to any Peabody Property of the Owned Real Properties. The Company has made available to Parent true, correct and complete copies of all leases pursuant to which any Acquired Company leases all or any a portion of or any interest therein.
(d) Owned Real Property to a third party. Each of the Peabody Leases such lease is valid, binding and in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective termseffect. No Peabody Lease has been amended, modified termination event or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as condition or uncured default of a material nature on the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach part of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending Acquired Company or, to the Knowledge of PeabodyCompany’s knowledge, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in tenant thereunder exists under any special assessment against any Peabody Owned Real Propertysuch lease.
(gb) All utility easementsSchedule 3.15(b) of the Company Disclosure Schedules set forth a true, rights correct and complete list of access all leases, subleases and other easements and similar rights serving agreements under which any Acquired Company uses or occupies or has the Peabody Properties are legally enforceable right to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrancesuse or occupy, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually now or in the aggregatefuture, any real property (the “Real Property Leases”). The Company has made available to Parent true, correct and complete copies of all Real Property Leases (including all modifications, amendments, supplements, waivers and side letters thereto). Each Real Property Lease is valid, binding and in full force and effect, and all rent and other material sums and charges payable by any Acquired Company as tenants thereunder are current. No termination event or condition or uncured default of a material adverse effect nature on the party of any Acquired Company or, to the Company’s knowledge, the landlord thereunder exists under any Real Property Lease. Each Acquired Company has a particular item good and valid leasehold interest in each parcel of real property. The improvements to the Peabody Properties (property leased by it free and the current uses thereof) do not clear of all mortgages, pledges, liens, encumbrances and security interests, except (i) violate set-backthose reflected or reserved against in the current Company Financial Statements, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on Taxes and general and special assessments not in default and payable without penalty and interest, and (iii) other Encumbrances which do not materially interfere with any easements located on Acquired Company’s use and enjoyment of such real property or materially detract from or diminish the Peabody Propertiesvalue thereof. No Acquired Company has received notice of any pending, nor is there to Company’s knowledge any threatened, condemnation with respect to any property leased pursuant to any of the Real Property Leases.
Appears in 1 contract
Sources: Merger Agreement (Summa Industries/)
Real Property. (a) Section 4.7(aSchedule 4.13(a) of the Peabody Disclosure Letter sets forth a correct Schedules lists the street address and complete list as tax identification number of each parcel of Owned Real Property and the date hereof current owner of (i) all Peabody each parcel of Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody The Company or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) Subsidiaries have good and indefeasible marketable fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties)Encumbrances, other than Permitted Encumbrances.
. Except as set forth on Schedule 4.13(a) of the Disclosure Schedules: (ci) There neither the Company nor any Subsidiaries has leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or portion thereof, (ii) other than the right of the Buyer pursuant to this Agreement, there are no outstanding options, rights of first offer offer, or rights of first refusal to purchase any Peabody such Owned Real Property or any portion thereof or interest therein, and (iii) neither the Company nor any of its Subsidiaries is a party to any agreement or option to purchase any real property or interest therein.
(db) Each Schedule 4.13(b) of the Peabody Leases Disclosure Schedules lists the street address of each parcel of Leased Real Property and the identity of the lessor, lessee and current occupant (if different from lessee) of each such parcel of Leased Real Property. The Company or its Subsidiaries have a valid leasehold estate in all Leased Real Property pursuant to the applicable leases, free and clear of all Encumbrances, other than Permitted Encumbrances. Each Lease is in full force and effect and constitutes the legal, valid and binding obligations of Peabody on the Company or its Affiliates that are parties thereto the applicable Subsidiary, as the case may be, and, to the Knowledge of Peabodythe Company, the other parties counterparties thereto, and is in full force and effect, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other similar Laws and principles of equity affecting creditors’ rights and remedies generally. No Peabody Lease has been amendedWith respect to each Leased Real Property, modified or supplemented. No party except as disclosed on Schedule 4.13(b) of the Disclosure Schedules: (i) neither the Company nor any of its Subsidiaries, and to Knowledge of Seller, no lessor with respect to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party theretoLease, is in breach of material default under any of its respective obligations thereunder, Lease and no event has occurred (including the failure to obtain any consent) or circumstance exists which, with the delivery of notice or lapse passage of time or both, would constitute a breach or default thereunder.
under any Lease, (eii) Except for neither the Peabody Properties, neither Peabody Company nor any of its Affiliates owns Subsidiaries have subleased, licensed or leases otherwise granted any real property used Person the right to use or held for use primarily occupy such Leased Real Property or portion thereof, (iii) neither the Company nor any of the Subsidiaries have collaterally assigned or granted any other security interest in such Lease or related primarily any interest therein (except as required under the Credit Facilities), (iv) the Company has delivered a true and complete copy of all Leases pertaining to the Leased Real Property to the Buyer, and no Leases have been modified, extended, renewed or necessary assigned to any Person since the date of such delivery and (v) neither the Company nor any of its Subsidiaries has paid a security deposit.
(c) Except as set forth in Schedule 4.13(c) of the Disclosure Schedules, all of the Real Property is in good condition and repair (subject to normal wear and tear) and is sufficient for the operation or conduct of the Peabody Real Property and the Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to as currently conducted. To the Knowledge of Peabodythe Seller, threatened there are no material (i) defects in, (ii) mechanical failures of, or (iii) damages to the Real Property. None of the Company or its Subsidiaries has received written notice of any condemnation, expropriation, eminent domain or similar proceedings proceeding affecting all or any material portion of the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(gd) All utility easementsThe conveyance of the Transferred Real Property will not violate or conflict with the terms of any options, rights of access and first offer, rights of first refusal or other easements and similar rights serving agreements affecting the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesTransferred Real Property.
Appears in 1 contract
Real Property. (a) Section 4.7(a) The Company has provided Purchaser with the address, general use of, and period of ownership or occupancy of all of the Peabody Disclosure Letter sets forth a correct real property that the Company and complete list as of the date hereof of (i) all Peabody Owned Real PropertySubsidiaries use or occupy or have the right to use or occupy, (ii) all Peabody Leases and (iii) all Mining Rights included now or in the Peabody Properties. Section 4.7(a) of future, pursuant to any lease, sublease, or other occupancy agreement (the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business"COMPANY LEASED FACILITIES"). No Peabody Property real property is leased owned, leased, subleased or subleased to any third party, and Peabody has not granted any third party any license, possessory used by the Company or occupancy right or other similar right therein the Subsidiaries in the course of their respective businesses other than Permitted Encumbrancesthe Company Leased Facilities.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has With respect to each Company Leased Facility:
(i) good the Company has made available to Purchaser a true, correct, and indefeasible fee title complete copy of the lease, sublease or other occupancy agreement for such Company Leased Facility (and all modifications, amendments, and supplements thereto and all side letters to all Peabody Owned Real Property, which Company or any of the Subsidiaries is a party affecting the obligations of any party thereunder) (each such agreement is referred to herein as a "COMPANY REAL PROPERTY LEASE");
(ii) the Company or its Subsidiary using or occupying such Company Leased Facility has a good and valid title to the leasehold estates interest in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), such Company Leased Facility free and clear of all Encumbrances Encumbrances, except (including Royalties)x) Taxes and general and special assessments not in default and payable without penalty and interest, and (y) easements, covenants and other than Permitted Encumbrances.restrictions that do not materially impair the current use, occupancy or value of the Company's or such Subsidiary's interest in such real property;
(ciii) There are no outstanding optionsto the Seller's and Company's knowledge, rights of first offer or rights of first refusal to purchase any Peabody each Company Real Property or any portion of or any interest therein.
(d) Each Lease constitutes the valid and legally binding obligation of the Peabody Leases parties thereto, enforceable in accordance with its terms, and is in full force and effect effect;
(iv) all rent and constitutes other sums and charges payable by the legal, valid and binding obligations of Peabody Company or its Affiliates that Subsidiary using or occupying such Company Leased Facility as tenant under the Company Real Property Lease covering such Company Leased Facility are parties thereto andcurrent, and no event or condition giving rise to a right to terminate or uncured default on the part of the tenant or, to the Knowledge of PeabodySeller's and Company's knowledge, the other parties theretolandlord, enforceable against Peabody or exists under such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplementedCompany Real Property Lease. No party to any Peabody such Company Real Property Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, given written notice to the Knowledge of Peabody, any other party thereto, is Company or such Subsidiary or made a claim in breach writing against the Company or such Subsidiary in respect of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.; and
(ev) Except for neither the Peabody PropertiesCompany nor its Subsidiary using or occupying such Company Leased Facility has assigned, neither Peabody nor any of transferred, conveyed, mortgaged, deeded in trust or encumbered its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Businesssuch Company Leased Facility.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Real Property. (a) Section 4.7(aSchedule 6.9(a) lists all real property owned in fee or held under or pursuant to an easement or other non-leasehold right to use and occupy real property, in either case by any Company Group Member (beneficially or of record) (the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody “Owned Real Property, (ii) all Peabody Leases ”). The Company Group has good and (iii) all Mining Rights included in marketable title to the Peabody PropertiesOwned Real Property. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody The Owned Real Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein encumbered by Liens other than Permitted EncumbrancesLiens.
(b) Peabody or a controlled Affiliate of PeabodySchedule 6.9(b) lists all leases (and the lands covered thereby) pursuant to which any Company Group Member leases real property for use in connection with the Business (all such listed leases collectively, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties“Scheduled Leases”), in each case specifying the case name of the lessor, lessee, sublessor or sublessee and the date and term of each lease. A true and complete copy of each of clauses (i)the Scheduled Leases, (iias amended to date, has been furnished to Buyer. Each Company Group Member identified on Schedule 6.9(b) as the lessee or sublessee under any particular Scheduled Lease is the lessee or has succeeded to the rights of the lessee under such Scheduled Lease and (iii), owns the leasehold interest created pursuant to such lease free and clear of all Encumbrances (including Royalties), other than Liens except Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Liens. Each of the Peabody Leases Scheduled Lease is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabodythe Sellers, the other parties theretoconstitutes a binding obligation of each landlord, lessor or sublessor thereunder, enforceable against Peabody such landlord, lessor or such Affiliates andsublessor in accordance with its terms subject to Creditor’s Rights. No event has occurred that constitutes, or that with the giving of notice or the passage of time or both would constitute, a material default under any Scheduled Lease by any Company Group Member or by Buyer after the Closing or, to the Knowledge of Peabodythe Sellers, by any other party to any Scheduled Lease. Each Company Group Member identified on Schedule 6.9(b) as the other parties thereto, lessee or sublessee under any particular Scheduled Lease either owns the improvements located on the lands covered by such Scheduled Lease or validly occupies such improvements in accordance with their respective termsthe terms of such Scheduled Lease free and clear of all Liens except Permitted Liens. No Peabody Lease As of the Closing Date, all consents required under the Scheduled Leases in connection with the transactions contemplated by this Agreement shall have been obtained or given and shall have been furnished in writing to Buyer.
(c) Except as set forth on Schedule 6.9(c), the Owned Real Property and the real property leased pursuant to the Scheduled Leases constitute all of the real property (“Real Property”) which has been amendedused in connection with the ownership and operations of any Company Group Member since January 1, modified 2003. Except as set forth in Schedule 6.9(c), other than the Company Group Members, there are no parties in possession of any portion of any Real Property as lessees, subtenants, tenants at sufferance or supplementedtrespassers. No party Except as otherwise set forth on Schedule 6.9(c), the Company Group has full right and authority to any Peabody Lease has repudiated any provision thereofoccupy, use and neither Peabody (nor its Affiliates that are parties theretooperate all of the improvements located on the Real Property, as subject to applicable Legal Requirements and the case may be) nor, to Permitted Liens. To the Knowledge of Peabodythe Sellers, any other party theretosuch improvements are being used, is in breach of any of its respective obligations thereunderoccupied, and no event has occurred (including maintained in all material respects in accordance with all applicable easements, contracts, permits, insurance requirements, restrictions, building setback lines, covenants and reservations. Except as set forth on Schedule 6.9(c), certificates of occupancy and all other material licenses, permits, authorizations, and approvals required by any Governmental Authority having jurisdiction over the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except Real Property have been issued for the Peabody PropertiesCompany Group’s occupancy of each of such improvements and all such certificates, neither Peabody nor any of its Affiliates owns or leases any real property used or held licenses, permits, authorizations and approvals have been paid for use primarily and are in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) full force and effect. There are is no pending or, to the Knowledge of Peabodythe Sellers, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any proceeding or special assessment against affecting any Peabody of the Real Property, nor has any Company Group Member received notification that any such proceeding or assessment is contemplated. Except as set forth on Schedule 6.9(c), to the Knowledge of the Sellers, the improvements located on the Real Property (the “Facilities”) are free from material structural and mechanical defects (including roofs) and have been used by the Company Group in the Ordinary Course of Business and remain as of the date hereof in suitable and adequate condition for such continued use. The Company Group has not deferred maintenance of the Facilities in contemplation of the transactions contemplated by this Agreement. All of the Owned Real Property has direct access to public roads without the use of any easement, license or right of way.
(d) The Sellers have furnished Buyer with true and complete copies of all deeds, leases, title opinions, title insurance policies and surveys in their possession or in the possession of the Company Group that relate to the Real Property, together with copies of all reports of any engineers, environmental consultants or other consultants in their possession relating to any of the Real Property.
(ge) All utility easementsutilities (including, rights of access without limitation, water, sewer or septic, gas, electricity, trash removal and other easements telephone service) are available to the Real Property in sufficient quantities and similar rights serving quality to adequately serve the Peabody Properties are legally enforceable to permit Real Property in connection with the operation of the Peabody Business in substantially conducted therefrom as such operations are currently conducted thereon.
(f) To the manner in which Knowledge of the Peabody Business is currently operated. Other than Permitted EncumbrancesSellers, there are no encroachments upon the Peabody Properties and no improvements Company Group Member has any obligation to any Peabody Properties encroach onto tenant, governmental or quasi-governmental entities or any adjacent property, except for such encroachments as have not had other Person which commitment relates to the Real Property and would not reasonably survive Closing and be expected a binding obligation of Buyer thereafter, in each case to havepay or contribute property or money or to construct, individually install or maintain any improvements on or off the Real Property (except as may be disclosed in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions a document of public record or (ii) encroach on any easements located on the Peabody Propertiesinformation provided by Sellers to Buyer in connection with this Agreement).
Appears in 1 contract
Sources: Stock Purchase Agreement (Nexeo Solutions Holdings, LLC)
Real Property. (a) Attached to Section 4.7(a2.13(a) of the Peabody Disclosure Letter sets forth Schedule is a true and correct computer printout listing each parcel of real property (by subdivision, lot number and complete list state in which the real property is located) owned by Landmark and the Subsidiaries as of the date hereof Closing Date (collectively, the "Real Property"). Landmark and the Subsidiaries have title insurance on all of (i) all Peabody Owned the Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included the title insurance policies for each such parcel of Real Property are attached to such Schedule. Except as disclosed in the Peabody Properties. Section 4.7(a2.13(a) of the Peabody Disclosure Letter also identifies Schedule, Landmark and the Subsidiaries are in possession of all Peabody Properties that also are used Real Property, have not entered into any Contracts relating thereto which would adversely affect title thereto. Except as set forth in the title insurance policies with respect to the Real Property, the Environmental Reports or any section of the date hereof Disclosure Schedules, Seller has no Knowledge of any material fact that will prohibit any of the Real Property from being used for general homebuilding purposes. There are no leases, subleases, licenses, concessions or other Contracts, entered into by other businesses or known to Seller granting to any Person the right of Peabody use or occupancy of any portion of the parcel of Real Property owned or leased by Landmark, Galloway or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use Subsidiaries. Galloway does not interfere with the operation of the Peabody Businessown any Real Proper▇▇. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody ▇▇▇▇▇▇▇ 2.13(b) of the Disclosure Schedule sets forth a true and accurate description of each real property lease (each a "Lease" and collectively, "Leases") entered into by each of Landmark and the Subsidiaries and states the rent payable under the Lease, any brokerage commissions or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title similar payments still owing with respect to the leasehold estates in all Peabody Leases Lease, and (iii) good and valid title to all Mining Rights included in any security deposit under the Peabody PropertiesLease, in the case commencement date of the Lease, the expiration date of the current term under the Lease, a description of each of clauses Company's options (i), (iiif any) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer to extend the Lease or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each the property that is the subject of the Peabody Leases Lease, and a statement as to whether the Lease requires such Company to obtain the landlord's consent to the transactions contemplated hereby. The applicable Company is the holder of the interest of tenant under each Lease and has not assigned or encumbered its interest in full force and effect and constitutes the any Lease. Each Lease is a legal, valid and binding obligations agreement, enforceable in accordance with its terms, of Peabody or its Affiliates such Company that are parties is a party thereto and, to the Knowledge of PeabodySeller, the of each other parties Person that is a party thereto, enforceable against Peabody or such Affiliates andand except as set forth in Section 2.13(b) of the Disclosure Schedule, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified Seller there is no default (or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no condition or event has occurred (including the failure to obtain any consent) which, with after notice or lapse of time or both, would constitute a breach default) thereunder. Galloway does not lease any real property. There are no leasing, br▇▇▇▇'▇ ▇r finder's commissions of any kind due and owing or to become due and owing to anyone by any Company with respect to any of the Leases. None of the Companies has paid and none will pay prior to Closing any prepayment of any rent under any Lease, except for the rental due on the first day of each current month during the term of each Lease and the last month's rent (if required under any Lease). No Company nor, to the Knowledge of Seller, any landlord has made any election to terminate any Lease pursuant to any right, if any, that it might have had prior to or as of the Closing Date to do so and no Company nor, to the Knowledge of Seller, any landlord has any current right to terminate any Lease. To Seller's Knowledge, each Company that is a party thereto has fulfilled all of its duties under each Lease and is not in material default thereunderin the performance of any of the provisions of any Lease. Seller has no Knowledge of any Claim under any Lease by any Company against any landlord or by any landlord against any Subsidiary, or of any present defense, offset, deduction or credit under the Lease against rents or other charges due or to become due under the Lease by any Company or any landlord. Seller has no Knowledge of any assignment of the landlord's interest in any Lease or of any prior sale, pledge or other transfer of any Lease or rents under any lease. No Company has assigned any Lease or any portion of the premises under any Lease and does not occupy any premises under any assignment or sublease. All premises under all Leases, to the Seller's Knowledge, comply with all applicable Laws.
(ec) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct As of the Peabody Business or date hereof, no notice of any proceedings has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending been received, or, to the Knowledge of Peabodythe Seller, threatened condemnationthreatened, by an authority having the power of eminent domain or similar proceedings affecting to condemn any part of any of the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned parcels of Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Real Property. Seller does not own any real property or possess any interest in real property, except for its leasehold interest in the Real Property pursuant to the Ground Lease and the leaseholds created under the Real Property Leases identified in Schedule 1.1.1
(a) Section 4.7(aSaid Schedule 1.1.1
(a) contains an accurate and complete description of the Peabody Disclosure Letter sets forth a correct monthly rental rate under each such Real Property Lease, the termination date thereof, and complete list as extension periods thereunder. Except for the members and guests, no person has any right to occupy any part of the Club, except for those subtenants, if any, identified in Schedule 1.1.1(a) (which, with respect to each such sublease, identifies the monthly rental rate payable thereunder, the termination date hereof of (i) all Peabody Owned Real Propertythereof, (ii) all Peabody Leases extension periods, if any, thereunder and (iii) all Mining Rights included in the Peabody Propertiesuse thereunder by the subtenant). Section 4.7(a) The Club enjoys peaceful and undisturbed possession of the Peabody Disclosure Letter also identifies all Peabody Properties that also premises covered by the Ground Lease and each Real Property Lease, which premises are used as of the date hereof by supplied with utilities and other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with services reasonably necessary for the operation of the Peabody Businessthereof. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, Except as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates otherwise disclosed in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (iSchedule 1.1.1(a), (iia) the Ground Lease and (iii), free all such Real Property Leases and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There subleases are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is legally valid and binding and are in full force and effect effect; (b) there have not been and constitutes there currently are not any material defaults thereunder by Seller or by any other party thereto; (c) no event has occurred which (whether with or without notice, lapse of time or the legal, valid and binding obligations happening or occurrence of Peabody any other event) would constitute a default thereunder entitling the landlord or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody tenant (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, or any other party thereto, is in breach of to terminate the Ground Lease and/or any of its respective obligations thereundersuch Real Property Lease or sublease, and no event has occurred (including d) the failure to obtain any consent) whichReal Property, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for all Improvements thereon and the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for uses thereof that are the operation or conduct subject of the Peabody Business Ground Lease and/or such Real Property Leases or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending orsubleases conform with all applicable ordinances, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access regulations and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.building,
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Sports Club Co Inc)
Real Property. (a) Neither the Company nor any of its Subsidiaries owns any real property.
(b) Section 4.7(a3.15(b) of the Peabody Disclosure Letter sets forth a true, correct and complete list of all leases, subleases and other agreements under which the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy, now or in the future, any real property (the “Real Property Leases”). The Company has heretofore delivered to Parent true, correct and complete copies of all Real Property Leases (including all modifications, amendments, supplements, waivers and side letters thereto). Each Real Property Lease is valid, binding and in full force and effect, all rent and other sums and charges payable by the Company or any of its Subsidiaries as tenants thereunder are current in all material respects. No termination event or condition or uncured default of a material nature on the part of the date hereof of (i) all Peabody Owned Real PropertyCompany or, (ii) all Peabody Leases and (iii) all Mining Rights included in if applicable, its Subsidiary or, to the Peabody Properties. Section 4.7(a) knowledge of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as Company, the landlord thereunder exists under any Real Property Lease. The Company and each of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody Subsidiaries has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates interest in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case each parcel of each of clauses (i), (ii) and (iii), real property leased by it free and clear of all Encumbrances mortgages, pledges, liens, encumbrances and security interests, except (including Royalties), other than Permitted Encumbrances.
(ci) There are no outstanding options, rights of first offer those reflected or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each reserved against in the balance sheet of the Peabody Leases is Company as of December 31, 2009 and included in full force the Company SEC Reports, (ii) Taxes and effect general and constitutes special assessments not in default and payable without penalty and interest and (iii) other liens, mortgages, pledges, encumbrances and security interests which do not materially interfere with the legal, valid Company’s use and binding obligations enjoyment of Peabody such real property or its Affiliates that are parties thereto and, to materially detract from or diminish the Knowledge of Peabody, value thereof. Neither the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody Company nor any of its Affiliates owns or leases Subsidiaries has received notice of any real pending, and to the knowledge of the Company there is no threatened, condemnation with respect to any property used or held for use primarily in or related primarily leased pursuant to any of the Real Property Leases. The Company and each of its Subsidiaries has sufficient title to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold other interest in any real property for use primarily in or related primarily all other assets necessary to or necessary for the operation or conduct of the Peabody Businessits business as currently conducted.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Sources: Merger Agreement (Ats Medical Inc)
Real Property. Within ten (a10) Section 4.7(a) Business Days after execution of this Agreement, Purchaser shall cause ▇▇▇▇▇▇▇ Title Guaranty Company (the Peabody Disclosure Letter sets forth “Title Company”), to deliver to Seller and Purchaser a correct and complete list as preliminary title commitment issued by the Title Company for 4832-5501-9850v.12 0058243-000353 each parcel of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included naming Purchaser as the proposed insured, pursuant to which the Title Company shall expressly commit to issue an ALTA standard owner’s policy of title insurance in the Peabody Properties. Section 4.7(a) amount of that portion of the Peabody Disclosure Letter also identifies Real Property Purchase Price attributable to each parcel of Real Property as set forth on Schedule 1.1(n) (each, a “Title Commitment”) together with all Peabody Properties exceptions or conditions to such title, including without limitation, all liens, mortgages, trust deeds, easements, restrictions, rights-of-way, covenants, reservations, and all other encumbrances affecting the Real Property. To enable the issuance of an extended owner’s policy, Seller agrees to provide to the Title Company at Closing a commercially reasonable owner’s affidavit in form and substance reasonably acceptable to Seller for each parcel of Real Property. If Purchaser desires to obtain extended coverage owner’s policies and/or endorsements thereto with respect to any such policy of title insurance, Purchaser may request the Title Company to issue such extended coverage, provided that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature sole cost of such use coverage shall be paid by Purchaser (including the cost of any survey), in no event shall Closing be delayed to accommodate issuance of any extended coverage form of title insurance and Purchaser shall be solely responsible for satisfying any conditions or requirements imposed by the Title Company in order to issue such other businesses of Peabody or its Affiliatesextended coverage. Seller shall pay the premium for each title insurance policy issued pursuant to the Title Commitments, subject to Purchaser’s obligation to pay all costs and such use does not interfere expenses associated with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, extended coverage and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabodyadditional endorsement requested by Purchaser, as applicable, has (i) good described above. . Seller and indefeasible fee title Purchaser shall take all steps reasonably required to all Peabody Owned Real Property, (ii) good and valid title transfer the Participation Loans to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties theretoSeller, in accordance with their respective termscustomary loan participation procedures. No Peabody Lease . Seller has been amendedentered into Swap Agreements with certain counterparties to offset the ISDA Agreements listed on Schedule 1.1(k). Purchaser will use commercially reasonable efforts to become eligible to have the Swap Agreements assigned to it; however, modified or supplementedif Purchaser is not able to become eligible to have such Swap Agreements assigned to it by the Closing Date, Seller will act as an interim counterparty for such Swap Agreements on terms to be mutually agreed between Seller and Purchaser. No party For the avoidance of doubt, commercially reasonable efforts, shall not require Purchaser to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as increase the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any amount of its respective obligations thereunder, and no event has occurred (including total assets in order to become eligible to have the failure Swap Agreement assigned to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderit.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (People's Utah Bancorp)
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody There is no Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, The Leased Real Property is listed on Schedule 7. Seller has (i) good provided to Purchaser true and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear correct copies of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Real Property Leases, including all exhibits, schedules and amendments. All Real Property Leases is are valid and binding and in full force and effect and constitutes effect. As of the legalExecution Date, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease there has been amended, modified no breach or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody default (nor its Affiliates that are parties thereto, as has there been any occurrence or condition which with the case may be) nor, to the Knowledge giving of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse passage of time or both, would constitute a breach or default) on the part of Seller, nor, to the best of Seller's knowledge, a subtenant, or lessor under any Real Property Lease. As of the Closing Date, there will have been no breach or default thereunder(nor has there been any occurrence or condition which with the giving of notice or passage of time or both, would constitute a breach or default) on the part of Seller, nor, to the best of Seller's knowledge, a subtenant or lessor under any Real Property Lease except with respect to these matters as to which Purchaser has been notified in writing.
(c) Seller is conducting business at each of the Leased Real Property locations in a manner consistent with applicable zoning laws.
(d) There are no leases, subleases, licenses or similar agreements permitting any party, whether affiliated or not affiliated with Seller, to lease, use or occupy space in the Leased Real Property.
(e) Except for On the Peabody PropertiesClosing Date, neither Peabody nor any the leasehold and other improvements pertaining to the Leased Real Property will be in as good repair and condition as they were on the date of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for this Agreement, reasonable wear and tear excepted. On the operation or conduct Execution Date, the plumbing, heating, air conditioning, electrical and sewage systems at each of the Peabody Business or has any options to acquire any fee interest or leasehold interest Leased Real Property are in any real property for use primarily in or related primarily to or necessary for good working condition and the operation or conduct roofs are free of leaks. On the Closing Date, the plumbing, heating, air conditioning, electrical and sewage systems at each of the Peabody BusinessLeased Real Property will be in good working condition and the roofs will be free of leaks except with respect to those matters as to which Purchaser and the related subtenant or lessor has been notified in writing.
(f) There are no pending orfacts or circumstances existing, or to the Knowledge best knowledge of PeabodySeller threatened, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to that could result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item change in the present or future use of real propertythe Leased Real Property as mortgage loan origination offices. The improvements Seller has delivered to the Peabody Properties (and the current uses thereof) do not (i) violate set-backPurchaser all written reports, building notices or side linesclaims it has received regarding violations at any Leased Real Property of any fire, zoning, health, building, hazardous waste or environmental code, ordinance, statute, regulation or order of any governmental authority or any applicable land use covenantsagency, zoning regulations body or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiessubdivision thereof.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Haven Bancorp Inc)
Real Property. (a) Section 4.7(a) Neither the Company nor any of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to Subsidiaries owns any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody Section 2.10 of the Sellers' Disclosure Schedule sets forth all leases, subleases and other agreements (the "REAL PROPERTY LEASES") under which the Company or a controlled Affiliate any of Peabodyits Subsidiaries uses, as applicableoccupies or sublets or has the right to use, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included occupy or sublet now or in the Peabody Propertiesfuture, any real property. Sellers have heretofore delivered to Buyer true, correct and complete copies of all Real Property Leases (and all modifications, amendments and supplements thereto and all side letters to which the Company or any of its Subsidiaries is a party affecting the obligations of any party thereunder). Each Real Property Lease constitutes the valid and legally binding obligation of the Company or its Subsidiaries, enforceable in the case accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar Laws of each of clauses (igeneral applicability relating to or affecting creditors' rights or by general equity principles), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect effect. All rent and constitutes other sums and charges payable by the legalCompany and its Subsidiaries as tenants, valid and binding obligations or payable to the Company or any of Peabody its Subsidiaries as sublessor, under each Real Property Lease are current, no termination event or its Affiliates that are parties thereto andcondition or uncured default of a material nature on the part of the Company or any such Subsidiary of the Company or, to the Knowledge of PeabodyCompany's knowledge, the other parties thereto, enforceable against Peabody landlord or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties theretosublessee, as the case may be, exists under any Real Property Lease. Each of the Company and its Subsidiaries has a good and valid leasehold interest in each parcel of real property leased by it free and clear of all Liens, except (i) norLiens for Taxes and general and special assessments not in default and payable without penalty and material interest and (ii) other liens, to mortgages, pledges, encumbrances and security interests which do not materially interfere with the Knowledge of Peabody, any other party thereto, is in breach of Company's or any of its respective obligations thereunder, Subsidiaries' use and no event enjoyment of such real property or materially detract from or diminish the value thereof.
(c) No party to any Real Property Lease has occurred (including given notice to the failure Company or any of its Subsidiaries of or made a claim against the Company or any of its Subsidiaries with respect to obtain any consent) which, with notice or lapse of time or both, would constitute a material breach or default thereunder.
(e) Except for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (thereunder and the current uses thereof) do not (i) violate set-back, building or side lines, or Company has no knowledge of any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiessuch claim.
Appears in 1 contract
Real Property. (a) Section 4.7(a) Neither the Company nor any of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned its Subsidiaries owns any Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate Schedule 2.9(b) lists as of Peabody, the date of this Agreement all Real Property Leases. The real property described on Schedule 2.9(b)is referred to as applicable, has (i) good and indefeasible fee title to all Peabody Owned the “Leased Real Property, .” Copies of all written (iiand summaries of all oral) good and valid title Real Property Leases have been provided to Buyer prior to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case date of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrancesthis Agreement.
(c) The Owned Real Properties and the Leased Real Properties and their condition are suitable for their current use by the Company and its Subsidiaries.
(d) All buildings, structures, improvements, fixtures, building systems and equipment, and all components thereof, included in the Owned Real Properties and the Leased Real Property are in good condition, ordinary wear and tear excepted and are suitable for their current use.
(e) There are adequate sanitary and storm sewer, public water, gas, electrical, telephone and other utilities and facilities at each of the Owned Real Properties and Leased Real Properties, and neither the Company nor any of its Subsidiaries has received notice from any provider of such services of any changes required to any facilities used in connection with such utilities. Neither the Company nor any Stockholder has Knowledge of any pending or threatened moratoriums or restrictions that are reasonably likely to adversely affect the cost or availability of any public utilities.
(f) The Company and its Subsidiaries enjoy peaceful and undisturbed possession of each Owned Real Property and Leased Real Property.
(g) There are no pending condemnation, eminent domain, or any other taking by public authority with or without payment of consideration therefor or similar actions with respect to any of the Owned Real Properties, or, to the Knowledge of the Company and the Stockholders, any of the Leased Real Properties, nor has any notice of such a proposed condemnation been received by the Stockholders or the Company or any of its Subsidiaries.
(h) None of the Owned Real Properties is subject to any lease, sublease, license or other agreement granting to any other Person any right to the use or occupancy of such Owned Real Property or any part thereof, and there are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Owned Real Property or any portion of or any interest therein.
(di) Each The Company or each of its Subsidiaries has the right to conduct its business in each Leased Real Property for the remaining term of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderapplicable Real Property Lease.
(ej) Except for With respect to the Peabody PropertiesLeased Real Property, neither Peabody all options to renew, rights of first offer and rights of first refusal exercisable prior to the date of this Agreement have been properly exercised.
(k) Neither the Company nor any of its Affiliates owns or leases Subsidiaries has entered into any real property used or held for use primarily in or related primarily subleases with respect to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Real Property. (a) Section 4.7(a) of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its AffiliatesThe Company does not own, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to has never owned, any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody or a controlled Affiliate Schedule 3.9(b) sets forth the address of Peabodyeach parcel of real property leased by the Company (collectively, the “Leased Real Property”). All of the Leased Real Property is leased pursuant to valid, binding and enforceable leases listed on Schedule 3.9(b) (the “Real Property Leases”). The Leased Real Property comprises all of the real property used by the Company in the operation of the Business. Except as applicableset forth on Schedule 3.9(b), has (i) good and indefeasible fee title with respect to all Peabody Owned each parcel of Leased Real Property, (iii) good and valid title there are no pending or, to the leasehold estates in all Peabody Leases and (iii) good and valid title knowledge of the Shareholder Parties, threatened condemnation proceedings or Actions relating to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i)it, (ii) and other than the Real Property Leases, there are no other leases, subleases, licenses or concessions, written or oral, granting to any Person the right to use or occupy any portion of the Leased Real Property, (iii) to the knowledge of the Shareholder Parties, the Company’s possession and quiet enjoyment of the Leased Real Property has not been disturbed and there are no disputes with respect to the Real Property Leases; (iv) no other party to such Real Property Lease is an Affiliate of, or otherwise has any economic interest in, the Company, except as set forth on Schedule 3.9(b), free and clear of all Encumbrances ; (including Royalties), v) the Company has not collaterally assigned or granted any Encumbrance (other than Permitted Encumbrances) in such Real Property Lease or any interest therein; (vi) there are no construction liens or similar Encumbrances with respect to the Leased Real Property; and (vii) no security deposit or portion thereof deposited with respect to such Real Property Lease has been applied in respect of a breach of or default under such Real Property Lease that has not been redeposited in full. The Company does not owe, nor will it owe in the future, any brokerage commissions or finder’s fees with respect to any of the Real Property Leases. Schedule 3.9(b) lists all amendments, modifications, estoppels, subordination, non-disturbance and attornment agreements and any other agreements or understandings related to the Leased Real Property or the Real Property Leases.
(c) There are no outstanding optionsNeither the Company nor any Shareholder Party has received written notice of any condemnation, rights expropriation or other proceeding in eminent domain affecting any parcel of first offer or rights of first refusal to purchase any Peabody Leased Real Property or any portion of thereof or any interest therein.
(d) Each To the knowledge of the Peabody Leases Shareholder Parties, the Leased Real Property is in full force compliance with all applicable building, zoning, subdivision, health and effect safety, land use and constitutes other applicable Laws, and all insurance requirements affecting the legal, valid and binding obligations Leased Real Property. The Company has not received any written notice of Peabody violation of any applicable Law or its Affiliates that are parties thereto insurance requirements affecting the Leased Real Property and, to the Knowledge knowledge of Peabodythe Shareholder Parties, there is no basis for the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of Peabody, any other party thereto, is in breach issuance of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with such notice or lapse the taking of time or both, would constitute a breach or default thereunderany action for such violation.
(e) Except for The current use and occupancy of the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for Leased Real Property and the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest of the Company as currently conducted thereon do not violate in any real property for use primarily respect any easement, covenant, condition, restriction or similar provision in or related primarily to or necessary for the operation or conduct any instrument of the Peabody Business.
(f) There are no pending record or, to the Knowledge knowledge of Peabodythe Shareholder Parties, threatened condemnation, eminent domain or similar proceedings other unrecorded agreement affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned such Leased Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Sources: Merger Agreement (Transcat Inc)
Real Property. (a) Section 4.7(a) Neither the Company nor any of the Peabody Disclosure Letter sets forth a correct and complete list as of the date hereof of (i) all Peabody Owned Real Propertyits Subsidiaries own or have since June 1, (ii) all Peabody Leases and (iii) all Mining Rights included 2019 owned any real property or interests in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrancesreal property.
(b) Peabody The Company has made available to Purchaser true, correct and complete copies of each lease, sublease, license, and occupancy agreement for each Leased Real Property and all amendments, supplements, extensions, modifications, assignments and/or guarantees thereto that either (A) exceed $1,000,000 in annual rent payments or (B) are otherwise material to the Business (collectively, the “Leases”). Section 5.8(b) of the Company Disclosure Schedule sets forth a controlled Affiliate true, correct and complete list of Peabodythe Leases. Except as set forth in Section 5.8(b) of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries are obligated or bound by any Contracts, options, rights of first refusal or other contractual rights to acquire any real property or lease any material real property (except under the Leases).
(c) The Company and its Subsidiaries, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) hold a good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of interest under each of clauses (i), (ii) and (iii), the Leases to which it is a party for the terms set forth therein free and clear of all Encumbrances (including Royalties), other than except Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each . All of the Peabody Leases is are in full force and effect and constitutes binding and enforceable by the legal, valid and binding obligations of Peabody Company or its Affiliates that are parties Subsidiary which is a party thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms, subject to the Enforceability Exceptions. No Peabody Lease Except as set forth in Section 5.8(c) of the Company Disclosure Schedule, there is no lease, sublease, license, use, occupancy or similar agreement granting to any Person (other than the Company and its Subsidiaries) any occupancy or use rights for any Leased Real Property, and, as of the Closing Date, no party, other than the Company or its applicable Subsidiary, will hold leasehold title to or occupancy rights or be in possession of all or any portion of the Leased Real Property. The Company and its Subsidiaries have not assigned, transferred, mortgaged, collaterally assigned, granted any security interest in, or pledged any interest in any of the Leases.
(d) The buildings, improvements and fixtures on the Leased Real Property, including all mechanical, electrical and other building systems and equipment located on the Leased Real Property, are in good operating condition and repair (normal wear and tear excepted), without material structural or mechanical defect. All such buildings, improvements and fixtures have been constructed, installed and maintained in all material respects in accordance with all applicable Laws. There is no ongoing or anticipated construction, development, alterations or renovations of any form at the Leased Real Property. None of the Leased Real Property has been amended, modified damaged or supplemented. No party to any Peabody Lease destroyed by fire or other casualty that has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as not been restored or not in the case may be) nor, to the Knowledge process of Peabody, any other party thereto, is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderbeing restored.
(e) Except for the Peabody Properties, neither Peabody nor The Company and its Subsidiaries have (i) all certificates of occupancy and permits or licenses of any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or Governmental Entities necessary for the current use and operation or conduct of the Peabody Business Leased Real Property and (ii) not received any notice of non-renewal of any such certificates, Permits or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Businesslicenses.
(f) There are no pending do not exist any actual or, to the Knowledge of Peabodythe Company, threatened condemnationActions by any Governmental Entity or Person to take, eminent domain by condemnation or similar proceedings affecting otherwise, any of the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Leased Real Property, and neither the Company nor any of its Subsidiaries has received any written notice of the intention of any Governmental Entity or other Person to take or use any Leased Real Property or any part thereof or interest therein.
(g) All utility easementsNo Leased Real Property is subject to any sales contract, rights option, right of access and first refusal, right of first offer, similar agreement or other easements and similar rights serving the Peabody Properties are legally enforceable contractual obligation to permit the operation sell, assign or dispose of any of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements Leased Real Property or any portion thereof or interest therein to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody PropertiesPerson.
Appears in 1 contract
Sources: Stock Purchase Agreement (Arthur J. Gallagher & Co.)
Real Property. (a1) Neither the Company nor the Company Subsidiary owns, nor has owned since the Lookback Date, any real property, nor is the Company or the Company Subsidiary party to an agreement to purchase real property or an interest in real property.
(2) Section 4.7(a3.10(b) of the Peabody Seller Disclosure Letter Schedule sets forth a true, correct and complete list list, as of the date hereof hereof, of all real property leased, subleased, licensed, occupied or used by the Company Group in the Business (i) all Peabody Owned each, a “Leased Real Property”) and which includes the Columbia Property and the San Antonio Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of including the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case legal name of each of clauses the parties to such Lease and the address of each Leased Real Property and an accurate description of any oral Lease. The Company Group has (i)or with respect to the Columbia Property and the San Antonio Property, (iiwill have at the Closing) and (iii), free and clear of all Encumbrances (including Royalties), other than Permitted Encumbrances.
(c) There are no outstanding options, rights of first offer or rights of first refusal to purchase any Peabody Property or any portion of or any interest therein.
(d) Each of the Peabody Leases is in full force and effect and constitutes the legal, valid and binding obligations of Peabody or its Affiliates that are parties thereto and, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties theretoexisting leasehold estates or, as the case may be, leasehold interests, as tenant in all Leased Real Property. As of the Closing Date, neither the Company nor the Company Subsidiary will have any existing or continuing obligations or liabilities with respect to that certain real property located at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ leased by Seller under that certain Lease Agreement dated March 3, 2006 by and between Harbor East Parcel B - Commercial, LLC and Seller. There is no lease, sublease, license, use, occupancy or similar agreement granting to any party (other than the Company Group or Seller) norany occupancy or use rights for any Leased Real Property, and, as of the Closing Date, no party, other than the relevant Company Group member, will hold leasehold title to or occupancy rights or be in possession of any Leased Real Property. To the Knowledge of PeabodySeller, there is no pending or threatened condemnation or other Proceeding with respect to any other party theretoLeased Real Property. Possession and quiet enjoyment of the Leased Real Property by the relevant Company Group member under each Lease (or, with respect to the Columbia Property and the San Antonio Property, Seller as the current tenant thereunder) has not been disturbed in any material respect. Except as set forth on Section 3.10(b) of the Seller Disclosure Schedule, as of the date hereof there has been no rent deferred under any Lease due to the COVID-19 pandemic or otherwise that is in breach currently unpaid or outstanding, and true, correct and complete copies of any such deferral arrangements and agreements have been provided to Purchaser. No material capital improvements to the Leased Real Property have been planned or started by Seller or the Company Group that are not complete as of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with notice or lapse of time or both, would constitute a breach or default thereunderdate hereof.
(e3) Except All of the Leased Real Property and tangible assets and properties of the Company Group or located on the Leased Real Property are in all material respects in serviceable operating condition and repair (giving due account to the age and length of use of the same, ordinary wear and tear excepted) and are adequate for the Peabody Properties, neither Peabody nor any of its Affiliates owns or leases any real property used or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct as of the Peabody Business.
(f) There are no pending ordate hereof, to the Knowledge of Peabody, threatened condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the same manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Propertiesit has heretofore been conducted.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Laureate Education, Inc.)
Real Property. (aSet forth on Schedule 4.11(a) Section 4.7(a) is a complete list and the location of the Peabody Disclosure Letter sets forth a correct all Real Property. True and complete list as of the date hereof copies of (i) all Peabody deeds, leases, title insurance policies and surveys in possession of the Selling Parties or Subject Companies (other than Rexam Mega) relating to the Real Property and (ii) all documents in possession of the Selling Parties or Subject Companies (other than Rexam Mega) evidencing any Encumbrances upon the Real Property have heretofore been furnished or made available to Purchaser. With respect to each Owned Real Property, (ii1) all Peabody Leases and a Subject Company (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(bRexam Mega) Peabody or a controlled Affiliate of Peabodyand to the Selling Parties’ Knowledge, as applicableRexam Mega, has (i) owns good and indefeasible marketable fee simple title to all Peabody such Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Properties, in the case of each of clauses (i), (ii) and (iii), free and clear of all Encumbrances except for Permitted Encumbrances, (including Royalties), 2) other than Permitted Encumbrances.
(c) There the rights of Purchaser pursuant to this Agreement, there are no outstanding options, rights of first offer or first negotiation or rights of first refusal in favor of any other party to purchase any Peabody such Owned Real Property or any portion of thereof or any interest therein.
therein and (d3) Each none of the Peabody Leases Selling Parties, Subject Companies (other than Rexam Mega) or, to the Selling Parties’ Knowledge, Rexam Mega has received written notice of any condemnation proceeding or proposed action or agreement for taking in lieu of condemnation, nor to the Selling Parties’ Knowledge, is any such proceeding, Action or agreement pending or threatened, with respect to any portion of such Owned Real Property. With respect to each Leased Real Property, (A) a Subject Company (other than Rexam Mega) and to the Selling Parties’ Knowledge, Rexam Mega, holds good and marketable leasehold interests in full force and effect and constitutes the legalLeased Real Property, valid and binding obligations of Peabody or its Affiliates that are parties thereto (B) a Subject Company (other than Rexam Mega) and, to the Knowledge Selling Parties’ Knowledge, each of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of PeabodyReal Property Lease (including Rexam Mega) has performed in all material respects all obligations required to be performed by it under each Real Property Lease, the (C) neither a Subject Company (other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may bethan Rexam Mega) nor, to the Knowledge of PeabodySelling Parties’ Knowledge, any other party thereto, (including Rexam Mega) to the Real Property Lease is in breach of or default in any of its respective obligations thereunder, and no material respect (nor has any event has occurred (including the failure to obtain any consent) whichthat, with the giving of notice or lapse of time time, or both, would constitute a such breach or default thereunder.
(edefault) Except for the Peabody Properties, neither Peabody nor under any of its Affiliates owns the Real Property Leases to which each such entity is a party and (D) no Selling Party or leases any real property used Subject Company (other than Rexam Mega) or held for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(f) There are no pending or, to the Knowledge Selling Parties’ Knowledge, Rexam Mega, has received written notice of Peabody, threatened any condemnation proceeding or proposed Action or agreement for taking in lieu of condemnation, eminent domain or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Property.
(g) All utility easements, rights of access and other easements and similar rights serving the Peabody Properties are legally enforceable to permit the operation of the Peabody Business in substantially the manner in which the Peabody Business is currently operated. Other than Permitted Encumbrances, there are no encroachments upon the Peabody Properties and no improvements to any Peabody Properties encroach onto any adjacent property, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody Properties.
Appears in 1 contract
Real Property. (ai) The REO Properties constitute the only Owned Real Property. Section 4.7(a3.2(k)(i) of the Peabody Seller Disclosure Letter Schedule sets forth (A) the address, the tax parcel/folio number and the owner/lessee for each parcel of Real Property owned or leased as of the Effective Date; (B) a true and complete list of all Leases for each parcel of Leased Real Property, together with the landlord, lessor, sublessor or licensor under each Lease, the tenant, lessee, sublessee or licensee under each Lease, the date of the Lease and all amendments or other agreements related thereto; and (C) the current use of each such Real Property. The Sellers have delivered or made available to Buyer a true, correct and complete list as copy of the date hereof of (i) all Peabody Owned Real Property, (ii) all Peabody Leases and (iii) all Mining Rights included in the Peabody Properties. Section 4.7(a) of the Peabody Disclosure Letter also identifies all Peabody Properties that also are used as of the date hereof by other businesses of Peabody or its Affiliates and describes the nature of such use by such other businesses of Peabody or its Affiliates, and such use does not interfere with the operation of the Peabody Business. No Peabody Property is leased or subleased to any third party, and Peabody has not granted any third party any license, possessory or occupancy right or other similar right therein other than Permitted Encumbrances.
(b) Peabody or a controlled Affiliate of Peabody, as applicable, has (i) good and indefeasible fee title to all Peabody Owned Real Property, (ii) good and valid title to the leasehold estates in all Peabody Leases and (iii) good and valid title to all Mining Rights included in the Peabody Propertieseach Lease and, in the case of each any oral Lease, a written summary of clauses (i)the material terms of such Lease. The Leased Real Property identified in Section 3.2(k)(i) of the Seller Disclosure Schedule comprises all of the real property used or intended to be used in, or otherwise related to, the Business.
(ii) Except as set forth on Section 3.2(k)(ii) of the Seller Disclosure Schedule, with regard to the Leases and Leased Real Property: (iii)A) subject to the respective terms and conditions in the Leases, the applicable Company Group member is the sole legal and equitable owner of the leasehold interest in the Leased Real Property and possesses good and marketable, indefeasible leasehold estate thereto, free and clear of all Encumbrances Liens (including Royalties), other than Permitted Encumbrances.
Liens); (cB) There the applicable Company Group member’s possession and quiet enjoyment of the Leased Real Property has not been disturbed and there are no outstanding options, rights disputes with respect to any Leases; (C) no security deposit or portion thereof has been applied in respect of first offer a breach or rights of first refusal default under any Lease that has not been redeposited in full; (D) the other party to purchase each Lease is not in any Peabody Property way affiliated with a Seller or any portion Company Group member; and (E) no Company Group member has collaterally assigned or granted any security interest in any of the Leases or any interest therein.
(d) . Each of the Peabody Leases Lease is legal, valid, binding, enforceable, in full force and effect and constitutes the legal, valid and binding obligations of Peabody effect. No Lease has been breached or its Affiliates that are parties thereto andcanceled by any Company Group member or, to the Knowledge of Peabody, the other parties thereto, enforceable against Peabody or such Affiliates and, to the Knowledge of Peabody, the other parties thereto, in accordance with their respective terms. No Peabody Lease has been amended, modified or supplemented. No party to any Peabody Lease has repudiated any provision thereof, and neither Peabody (nor its Affiliates that are parties thereto, as the case may be) nor, to the Knowledge of PeabodySellers, any other party thereto, . There is in breach of any of its respective obligations thereunder, and no event has occurred (including the failure to obtain any consent) which, with upon giving of notice or lapse of time or both, would constitute a breach or default thereunderunder any Lease or would permit the termination, modification or acceleration of a Lease.
(eiii) Except for as set forth on Section 3.2(k)(iii) of the Peabody PropertiesSeller Disclosure Schedule, neither Peabody nor any with regard to the Owned Real Property, the applicable Company Group member is the sole legal and equitable owner in fee of its Affiliates owns the Owned Real Property and possesses good and marketable, indefeasible fee simple title thereto, free and clear of all Liens (other than Permitted Liens). To the Knowledge of Sellers, there are no adverse matters that would reasonably be expected to materially impair the value of the Owned Real Property or leases any materially impair the use by the Company of the Owned Real Property as residential real estate.
(iv) To the Knowledge of the Sellers, there are no Liens pertaining to the Leased Real Property, or appurtenances and common areas of the property used or held for use primarily in or related primarily to or necessary for of which the Leased Real Property is a part, that have a material and adverse effect on the operation or conduct of the Peabody Business or has any options to acquire any fee interest or leasehold interest in any real property for use primarily in or related primarily to or necessary for the operation or conduct of the Peabody Business.
(fv) There are no pending The Leased Real Property is occupied and utilized for the Business under valid and current certificates of occupancy, permits and the like, and the transactions contemplated by this Agreement will not require the issuance of any new or amended certificates of occupancy, permits or the like. The Leased Real Property and the use and operation thereof in the Business in accordance with past practice do not violate in any material respect any Applicable Law or, to the Knowledge of Peabodythe Sellers, threatened condemnationany covenant, eminent domain condition, restriction, easement, license, permit or similar proceedings affecting the Peabody Properties. There are no existing public improvements which may reasonably be expected to result in any special assessment against any Peabody Owned Real Propertyagreement of record.
(gvi) All utility easementsTo the Knowledge of the Sellers, rights all Facilities on the Leased Real Property are in good condition and repair (normal wear and tear excepted) and are fit for occupancy and use by the applicable Company Group member in accordance with past practice.
(vii) No Company Group member owes or will owe in the future pursuant to any agreement(s) entered into prior to Closing, any brokerage commissions or finders’ fees with respect to the Leased Real Property or the Lease.
(viii) No Company Group member has licensed, subleased, leased or granted any third party the right to possess, use, occupy or enjoy the Leased Real Property, and there are no parties in possession of access and other easements and similar rights serving the Peabody Properties Leased Real Property that are legally enforceable not entitled to permit such possession.
(ix) The Leased Real Property is sufficient for the continued operation of the Peabody Business in substantially accordance with past practice.
(x) To the manner in which Knowledge of the Peabody Business is currently operated. Other than Permitted EncumbrancesSellers, there are is no encroachments upon Proceeding of any kind pending or, threatened against the Peabody Properties Leased Real Property or any portion thereof, or against any Company Group member with respect to the Leased Real Property, or other Proceedings adversely affecting the applicable Company Group member’s occupancy and use thereof.
(xi) No Company Group member is a party to any agreement to acquire or sell any interest in real property, and no improvements Company Group member has any options or rights of first refusal to purchase or acquire any Peabody Properties encroach onto real property or any adjacent propertydirect or indirect interest therein, except for such encroachments as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on a particular item of real property. The improvements other than with respect to the Peabody Properties (and the current uses thereof) do not (i) violate set-back, building or side lines, or any applicable land use covenants, zoning regulations or similar enforceable restrictions or (ii) encroach on any easements located on the Peabody REO Properties.
Appears in 1 contract