Assigned Contracts. (a) A true and correct copy (and, if oral, an accurate written description) of each Assigned Contract, including any modifications, amendments, renewals or extensions thereof (other than purchase orders) that (v) is a Contract with any of the customers of the Business listed on SCHEDULE 5.8(f), (w) has a duration of twelve (12) months or more, (x) requires or could require any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, and any Related Person, on the other hand, or (z) is material to the Business has been provided to Purchaser. The Assigned Contracts represent all of the Contracts that are used primarily in the Business. (b) SCHEDULE 5.8(b) contains a true and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement in excess of $100,000 and that remain outstanding as of the date hereof. (c) Except as set forth on SCHEDULE 5.8(c), each of the Assigned Contracts is in full force and effect and there exists no Default under any of the Assigned Contracts by Seller or any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts or any event which, will or is reasonably likely to create a Default thereunder by Seller or any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts. Except as set forth on SCHEDULE 5.2, each Assigned Contract is fully assignable without the Consent of any Third Party. (d) Except as indicated on SCHEDULES 5.8(d) OR 5.13, there exists no actual or, to the Knowledge of Seller, any threatened dispute under, termination, cancellation, or limitation of, or any amendment, modification, or change to any Assigned Contract, including (i) the business relationship with any customer, distributor, or related group of customers or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or in the aggregate are Material to the operations and financial condition of the Business, (ii) the requirements of any customer or related group of customers listed on SCHEDULE 5.8(f) or such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or (iii) the business relationship with any supplier set forth on SCHEDULE 5.24 or any other material supplier to the Business. (e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or with respect to the Business or the Acquired Assets that remains outstanding. (f) SCHEDULE 5.8(f) sets forth for the year ended December 31, 2002 and for the three (3) month period ended March 31, 2003 (a) the names and addresses of the twenty (20) largest customers of the Business, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(f), Seller has no Knowledge that any such customer has ceased, or will cease, to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Date. (g) SCHEDULE 5.8(g) contains an accurate and complete list of all Contracts, transfers of assets or liabilities or other commitments or transactions, whether or not entered into in the Ordinary Course of Business, to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required to be set forth in SCHEDULE 5.8(g) was on terms and conditions as favorable to Seller or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basis, any interest in any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person owns, or has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has (i) had business dealings or a material financial interest in any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g), each of which has been conducted in the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter market.
Appears in 1 contract
Assigned Contracts. (a) A true 4.15.1 Exhibit B identifies and correct copy (and, if oral, provides an accurate written description) and ---------- complete description of each Assigned Contract, including any modifications, amendments, renewals or extensions thereof (other than purchase orders) that (v) is a Contract with any of the customers of the Business listed on SCHEDULE 5.8(f), (w) . The Seller has a duration of twelve (12) months or more, (x) requires or could require any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, and any Related Person, on the other hand, or (z) is material delivered to the Business has been provided to PurchaserBuyer accurate and complete copies of all Contracts identified in Exhibit B, --------- including all amendments thereto. The Assigned Contracts represent all of the Contracts that are used primarily Each Contract is valid and in the Businessfull force and effect.
(b) SCHEDULE 5.8(b) contains a true and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement in excess of $100,000 and that remain outstanding as of the date hereof.
(c) 4.15.2 Except as set forth on SCHEDULE 5.8(c), each in Section 4.15 of the Seller's Disclosure Schedule: (i) no party has violated or breached, or declared or committed any default under, any Assigned Contracts is Contract; (ii) no event has occurred, and no circumstance or condition exists, that might (with or without notice or lapse of time) (A) result in full force and effect and there exists no Default under a violation or breach of any of the provisions of any Assigned Contracts by Contract, (B) give any party the right to declare a default or exercise any remedy under any Assigned Contract, (C) give any party the right to accelerate the maturity or performance of any Assigned Contract, or (D) give any party the right to cancel, terminate or modify any Assigned Contract; (iii) the Seller has not received any notice or other communication (in writing or otherwise) regarding any Subsidiary thereof oractual, to the Knowledge of Selleralleged, possible or potential violation or breach of, or default under, any other party to Business Contract; and (iv) the Assigned Contracts or Seller has not waived any event which, will or is reasonably likely to create a Default thereunder by Seller or right under any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts. Business Contract.
4.15.3 Except as set forth on SCHEDULE 5.2in Section 4.15 of the Seller's Disclosure Schedule, each the Seller has never guaranteed or otherwise agreed to cause, insure or become liable for, and the Seller has never pledged any of its assets to secure, the performance or payment of any obligation or other Liability of any other party.
4.15.4 No party is renegotiating, or has the right to renegotiate, any amount paid or payable to the Seller under any Assigned Contract is fully assignable without the Consent or any other term or provision of any Third PartyAssigned Contract.
(d) Except as indicated on SCHEDULES 5.8(d) OR 5.13, there exists 4.15.5 The Seller has no actual or, to the Knowledge knowledge of Seller, any threatened dispute under, termination, cancellation, or limitation of, or basis upon which any amendment, modification, or change party to any Assigned Contract, including Contract may object to (i) the business relationship with assignment to the Buyer of any customer, distributorright under such Assigned Contract, or related group of customers or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or in the aggregate are Material to the operations and financial condition of the Business, (ii) the requirements delegation to or performance by the Buyer of any customer or related group of customers listed on SCHEDULE 5.8(f) or obligation under such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or (iii) the business relationship with any supplier set forth on SCHEDULE 5.24 or any other material supplier to the BusinessAssigned Contract.
(e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or with respect to the Business or the Acquired Assets that remains outstanding.
(f) SCHEDULE 5.8(f) sets forth for the year ended December 31, 2002 and for the three (3) month period ended March 31, 2003 (a) the names and addresses of the twenty (20) largest customers of the Business, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(f), Seller has no Knowledge that any such customer has ceased, or will cease, to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Date.
(g) SCHEDULE 5.8(g) contains an accurate and complete list of all Contracts, transfers of assets or liabilities or other commitments or transactions, whether or not entered into in the Ordinary Course of Business, to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required to be set forth in SCHEDULE 5.8(g) was on terms and conditions as favorable to Seller or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basis, any interest in any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person owns, or has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has (i) had business dealings or a material financial interest in any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g), each of which has been conducted in the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter market.
Appears in 1 contract
Sources: Asset Purchase Agreement (Crescent Communications Inc)
Assigned Contracts. (a) Exhibit A true and correct copy (and, if oral, an accurate written description) of identifies each Assigned Contract. The Seller has delivered to the Purchaser accurate and complete copies of all Contracts identified in Exhibit A, including any modifications, amendments, renewals or extensions thereof (other than purchase orders) that (v) all amendments thereto. Each Contract is a Contract with any of the customers of the Business listed on SCHEDULE 5.8(f), (w) has a duration of twelve (12) months or more, (x) requires or could require any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, valid and any Related Person, on the other hand, or (z) is material to the Business has been provided to Purchaser. The Assigned Contracts represent all of the Contracts that are used primarily in the Businessfull force and effect.
(b) SCHEDULE 5.8(b) contains a true and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement Except as set forth in excess of $100,000 and that remain outstanding as Schedule 3.13 of the date hereofSeller’s Disclosure Schedule: (i) no party has violated or breached, or declared or committed any default under, any material provision of an Assigned Contract; (ii) no event has occurred, and no circumstance or condition exists, that might (with or without notice or lapse of time) (A) result in a violation or breach of any of the material provisions of any Assigned Contract, (B) give any party the right to declare a default or exercise any remedy under any Assigned Contract, (C) give any party the right to accelerate the maturity or performance of any Assigned Contract, or (D) give any party the right to cancel, terminate or modify any Assigned Contract; (iii) the Seller has not received any notice or other communication (in writing or otherwise) regarding any actual, alleged, possible or potential violation or material breach of, or default under, any Assigned Contract; and (iv) the Seller has not waived any material right under any Assigned Contract.
(c) Except as set forth on SCHEDULE 5.8(c), each in Schedule 3.13 of the Assigned Contracts is in full force Seller’s Disclosure Schedule, the Seller has not guaranteed or otherwise agreed to cause, insure or become liable for, and effect and there exists no Default under the Seller has never pledged any of its assets to secure, the Assigned Contracts by Seller performance or payment of any Subsidiary thereof or, to the Knowledge obligation or other Liability of Seller, any other party to the Assigned Contracts or any event which, will or is reasonably likely to create a Default thereunder by Seller or any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts. Except as set forth on SCHEDULE 5.2, each Assigned Contract is fully assignable without the Consent of any Third Partyparty.
(d) Except as indicated on SCHEDULES 5.8(d) OR 5.13No party is renegotiating, there exists no actual oror has the right to renegotiate, any amount paid or payable to the Knowledge of Seller, any threatened dispute under, termination, cancellation, or limitation of, or any amendment, modification, or change to Seller under any Assigned Contract, including (i) the business relationship with any customer, distributor, or related group of customers or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or in the aggregate are Material to the operations and financial condition of the Business, (ii) the requirements of any customer or related group of customers listed on SCHEDULE 5.8(f) or such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or (iii) the business relationship with any supplier set forth on SCHEDULE 5.24 Contract or any other material supplier to the Businessterm or provision of any Assigned Contract.
(e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or with respect to the Business or the Acquired Assets that remains outstanding.
(f) SCHEDULE 5.8(f) sets forth for the year ended December 31, 2002 and for the three (3) month period ended March 31, 2003 (a) the names and addresses of the twenty (20) largest customers of the Business, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(f), The Seller has no Knowledge that knowledge of any such customer has ceased, or will cease, basis upon which any party to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Date.
(g) SCHEDULE 5.8(g) contains an accurate and complete list of all Contracts, transfers of assets or liabilities or other commitments or transactions, whether or not entered into in the Ordinary Course of Business, any Assigned Contract may object to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required to be set forth in SCHEDULE 5.8(g) was on terms and conditions as favorable to Seller or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basis, any interest in any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person owns, or has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has (i) had business dealings or a material financial interest in the assignment to the Purchaser of any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g)right under such Assigned Contract, each of which has been conducted in the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served the delegation to or performance by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock Purchaser of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter marketobligation under such Assigned Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ember Therapeutics, Inc. - Ny)
Assigned Contracts. (a) A true and correct copy (and, if oral, an accurate written description) of each Assigned Contract, including any modifications, amendments, renewals or extensions thereof (other than purchase orders) that (v) is a Contract with any of the customers of the Business listed on SCHEDULE 5.8(f), (w) has a duration of twelve (12) months or more, (x) requires or could require any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, and any Related Person, on the other hand, or (z) is material to the Business has been provided to Purchaser. The Assigned Contracts represent all of the Contracts that are used primarily in the Business.
(b) SCHEDULE 5.8(bSchedule 5.6(a) contains a true and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement in excess of $100,000 and that remain outstanding as each of the date hereof.
(c) Assigned Contracts. Except as set forth on SCHEDULE 5.8(cin Schedule 5.6(a), Seller has made available true, complete and correct copies (except as redacted as to pricing terms) of each of the written Assigned Contracts to Buyer and made available true, complete and correct (except as redacted as to pricing terms) summaries of the material terms of each of the oral Assigned Chain Contracts to Buyer. Each of the Assigned Contracts that Seller has directly entered into was entered into by Seller in the ordinary course of business consistent with past practice for like customers. Each of the Assigned Contracts is in full force and effect as of the date hereof and there exists no Default material breach or violation of or material default under any of the Assigned Contracts by Seller or any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts or any event which, will or is reasonably likely to create a Default thereunder by Seller or any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts. , or any event which, with or without notice or the lapse of time, or both, will create a material breach or violation thereof or material default thereunder by Seller or, to the Knowledge of Seller, any other party to such Assigned Contracts.
(b) Except as set forth on SCHEDULE 5.2, each Assigned Contract is fully assignable without the Consent of any Third Party.
(d) Except as indicated on SCHEDULES 5.8(d) OR 5.13in Schedule 5.6(b), there exists no actual or, to the Knowledge of Seller, any threatened dispute underthreatened, termination, cancellation or material amendment or modification to any Assigned Chain Contract.
(c) Except as set forth in Schedule 5.6(c), since January 1, 2002, no other party to any of the Assigned Chain Contracts has terminated their contract, or reduced or, to the Knowledge of Seller, threatened to reduce the volume of transactions processed under any of the Assigned Chain Contracts.
(d) Except as set forth in Schedule 5.6(d), neither the execution and delivery of this Agreement or any of the Seller Ancillary Agreements by Seller, nor the consummation of the transactions contemplated hereunder and thereunder by Seller (excluding, for the avoidance of doubt, the performance by Seller under the Transition Services Agreement), will result in a breach of the terms, conditions or provisions of, or constitute a default, an event of default or an event creating rights of acceleration, termination or cancellation, or limitation ofa loss of rights under, or any amendment, modification, or change to any Assigned Contract, including (i) the business relationship with any customer, distributor, or related group of customers or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or result in the aggregate are Material to the operations and financial condition creation or imposition of any Encumbrance upon, any of the Business, (ii) the requirements of any customer or related group of customers listed on SCHEDULE 5.8(f) or such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or (iii) the business relationship with any supplier set forth on SCHEDULE 5.24 or any other material supplier to the BusinessAssigned Contracts.
(e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or with respect to the Business or the Acquired Assets that remains outstanding.
(f) SCHEDULE 5.8(f) sets forth for the year ended December 31, 2002 and for the three (3) month period ended March 31, 2003 (a) the names and addresses of the twenty (20) largest customers of the Business, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(f), Seller has no Knowledge that any such customer has ceased, or will cease, to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Date.
(g) SCHEDULE 5.8(g) contains an accurate and complete list of all Contracts, transfers of assets or liabilities or other commitments or transactions, whether or not entered into in the Ordinary Course of Business, to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required to be set forth in SCHEDULE 5.8(g) was on terms and conditions as favorable to Seller or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basis, any interest in any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person owns, or has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has (i) had business dealings or a material financial interest in any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g), each of which has been conducted in the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter market.
Appears in 1 contract
Assigned Contracts. (a) A true 4.15.1 Exhibit B identifies and correct copy (and, if oral, provides an accurate written description) and complete description of each Assigned Contract. The Seller has delivered to the Buyer accurate and complete copies of all Contracts identified in Exhibit B, including any modifications, amendments, renewals or extensions thereof (other than purchase orders) that (v) all amendments thereto. Each Contract is a Contract with any of the customers of the Business listed on SCHEDULE 5.8(f), (w) has a duration of twelve (12) months or more, (x) requires or could require any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, valid and any Related Person, on the other hand, or (z) is material to the Business has been provided to Purchaser. The Assigned Contracts represent all of the Contracts that are used primarily in the Businessfull force and effect.
(b) SCHEDULE 5.8(b) contains a true and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement in excess of $100,000 and that remain outstanding as of the date hereof.
(c) 4.15.2 Except as set forth on SCHEDULE 5.8(c), each in Section 4.15 of the Seller’s Disclosure Schedule: (i) no party has violated or breached, or declared or committed any default under, any Assigned Contracts is Contract; (ii) no event has occurred, and no circumstance or condition exists, that might (with or without notice or lapse of time) (A) result in full force and effect and there exists no Default under a violation or breach of any of the provisions of any Assigned Contracts by Contract, (B) give any party the right to declare a default or exercise any remedy under any Assigned Contract, (C) give any party the right to accelerate the maturity or performance of any Assigned Contract, or (D) give any party the right to cancel, terminate or modify any Assigned Contract; (iii) the Seller has not received any notice or other communication (in writing or otherwise) regarding any Subsidiary thereof oractual, to the Knowledge of Selleralleged, possible or potential violation or breach of, or default under, any other party to Business Contract; and (iv) the Assigned Contracts or Seller has not waived any event which, will or is reasonably likely to create a Default thereunder by Seller or right under any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts. Business Contract.
4.15.3 Except as set forth on SCHEDULE 5.2in Section 4.15 of the Seller’s Disclosure Schedule, each the Seller has never guaranteed or otherwise agreed to cause, insure or become liable for, and the Seller has never pledged any of its assets to secure, the performance or payment of any obligation or other Liability of any other party.
4.15.4 No party is renegotiating, or has the right to renegotiate, any amount paid or payable to the Seller under any Assigned Contract is fully assignable without the Consent or any other term or provision of any Third PartyAssigned Contract.
(d) Except as indicated on SCHEDULES 5.8(d) OR 5.13, there exists 4.15.5 The Seller has no actual or, to the Knowledge knowledge of Seller, any threatened dispute under, termination, cancellation, or limitation of, or basis upon which any amendment, modification, or change party to any Assigned Contract, including Contract may object to (i) the business relationship with assignment to the Buyer of any customer, distributorright under such Assigned Contract, or related group of customers or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or in the aggregate are Material to the operations and financial condition of the Business, (ii) the requirements delegation to or performance by the Buyer of any customer or related group of customers listed on SCHEDULE 5.8(f) or obligation under such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or (iii) the business relationship with any supplier set forth on SCHEDULE 5.24 or any other material supplier to the BusinessAssigned Contract.
(e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or with respect to the Business or the Acquired Assets that remains outstanding.
(f) SCHEDULE 5.8(f) sets forth for the year ended December 31, 2002 and for the three (3) month period ended March 31, 2003 (a) the names and addresses of the twenty (20) largest customers of the Business, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(f), Seller has no Knowledge that any such customer has ceased, or will cease, to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Date.
(g) SCHEDULE 5.8(g) contains an accurate and complete list of all Contracts, transfers of assets or liabilities or other commitments or transactions, whether or not entered into in the Ordinary Course of Business, to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required to be set forth in SCHEDULE 5.8(g) was on terms and conditions as favorable to Seller or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basis, any interest in any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person owns, or has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has (i) had business dealings or a material financial interest in any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g), each of which has been conducted in the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter market.
Appears in 1 contract
Assigned Contracts. (a) A true Complete and correct copy (andaccurate copies of all Assigned Contracts have been provided to Buyer.
4.11.1 Each Assigned Contract is legal, if oralvalid and in full force and effect, an accurate written description) enforceable in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally and by the availability of each equitable remedies. To Seller's Knowledge, no other party to any Assigned Contract has taken the position that any provision of such contract is unenforceable.
4.11.2 Seller not breached any Assigned Contract, including and, to Seller's Knowledge, no other Person has breached any modificationsAssigned Contract.
4.11.3 To Seller's Knowledge, amendmentsno event has occurred, renewals and no circumstance or extensions thereof (other than purchase orders) condition exists, that (vwith or without notice or lapse of time) is will, or could reasonably be expected to, (A) result in a Contract with breach of any of the customers provisions of the Business listed on SCHEDULE 5.8(f)any Assigned Contract, (wB) has give any Person the right to declare a duration of twelve (12) months default or moreexercise any remedy under any Assigned Contract, (xC) requires give any Person the right to accelerate the maturity or could require performance of any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, and any Related Person, on the other handAssigned Contract, or (zD) give any Person the right to cancel, terminate or modify any Assigned Contract.
4.11.4 Seller has not received any notice or other communication regarding any actual or possible breach of any Assigned Contract that has not been resolved. Seller has not received notice of termination or cancellation of or intent to cancel or terminate any Assigned Contract.
4.11.5 Seller has not waived any of its rights under any Assigned Contract.
4.11.6 No Person is material renegotiating, or has a right pursuant to the Business has been provided terms of any Assigned Contract to Purchaser. The renegotiate any amount paid or payable to Seller under any Assigned Contracts represent all Contract or any other material term or provision of the Contracts that are used primarily in the Businessany Assigned Contract.
(b) SCHEDULE 5.8(b) contains a true 4.11.7 Each Assigned Contract will continue to be enforceable, and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement in excess of $100,000 and that remain outstanding as of the date hereof.
(c) Except as set forth on SCHEDULE 5.8(c), each of the Assigned Contracts is in full force and effect on identical terms immediately following the consummation of the Transactions, and there exists no Default under the consummation of the transactions shall not (either alone or upon the occurrence of additional acts or events) result in any payment or payments becoming due from Seller to any Person or give any Person the right to terminate or alter the provisions of such Assigned Contract. The consummation of the transactions contemplated by this Agreement will not affect any of the Assigned Contracts by Seller or any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts or any event which, will or is in a manner that could reasonably likely to create a Default thereunder by Seller or any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts. Except as set forth on SCHEDULE 5.2, each Assigned Contract is fully assignable without the Consent of any Third Party.
(d) Except as indicated on SCHEDULES 5.8(d) OR 5.13, there exists no actual or, to the Knowledge of Seller, any threatened dispute under, termination, cancellation, or limitation of, or any amendment, modification, or change to any Assigned Contract, including (i) the business relationship with any customer, distributor, or related group of customers or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or in the aggregate are Material to the operations and financial condition of the Business, (ii) the requirements of any customer or related group of customers listed on SCHEDULE 5.8(f) or such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or (iii) the business relationship with any supplier set forth on SCHEDULE 5.24 or any other material supplier to the Business.
(e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or with respect to the Business or the Acquired Assets that remains outstanding.
(f) SCHEDULE 5.8(f) sets forth for the year ended December 31, 2002 and for the three (3) month period ended March 31, 2003 (a) the names and addresses of the twenty (20) largest customers of the Business, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(f), Seller has no Knowledge that any such customer has ceased, or will cease, to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Date.
(g) SCHEDULE 5.8(g) contains an accurate and complete list of all Contracts, transfers of assets or liabilities or other commitments or transactions, whether or not entered into in the Ordinary Course of Business, to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required be expected to be set forth in SCHEDULE 5.8(g) was on terms and conditions as favorable materially adverse to Seller or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basis, any interest in any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person owns, or has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has (i) had business dealings or a material financial interest in any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g), each of which has been conducted in the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter marketBuyer.
Appears in 1 contract
Sources: Asset Purchase Agreement (Casita Enterprises, Inc.)
Assigned Contracts. (a) A true and correct copy (and, if oral, an accurate written description) of each Assigned Contract, including any modifications, amendments, renewals or extensions thereof (other than purchase orders) that (v) is a Contract with any of the customers of the Business listed on SCHEDULE 5.8(f), (w) has a duration of twelve (12) months or more, (x) requires or could require any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, and any Related Person, on the other hand, or (z) is material to the Business has been provided to Purchaser. The Assigned Contracts represent all of the Contracts that are used primarily in the Business.
(b) SCHEDULE 5.8(b) contains a true and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement in excess of $100,000 and that remain outstanding as of the date hereof.
(ci) Except as set forth on SCHEDULE 5.8(c)Schedule 4(d)(i) with respect to contracts that have terminated, each Assigned Contract is valid, in full force and effect, and is enforceable by the Sellers entering into such Assigned Contract in accordance with its terms and upon the consummation of the Assigned Contracts is transactions contemplated hereby, will continue to be legal, valid, binding, enforceable and in full force and effect and there exists on its terms.
(ii) (A) The Sellers have not and, to the knowledge of the Sellers, no Default other Person has, violated, breached, or declared or committed any default under any of Assigned Contract; (B) the Assigned Contracts by Seller Sellers have not created any circumstance or any Subsidiary thereof orcondition, and, to the Knowledge of Sellerthe Sellers, no event has occurred, and no circumstance or condition exists, that would (with or without notice or lapse of time) (w) result in a violation or breach of any other party of the provisions of any Assigned Contract, (x) give any Person the right to declare a default or exercise any remedy under any Assigned Contract, (y) give any Person the right to accelerate the maturity or performance of any Assigned Contracts Contract, or (z) give any event whichPerson the right to cancel, will terminate or is reasonably likely to create a Default thereunder by Seller or modify the terms of any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts. Except Contract; (C) except as set forth on SCHEDULE 5.2Schedule 4(d)(ii), each Assigned Contract is fully assignable without the Consent of Sellers have not received any Third Party.
notice or other communication (din writing or otherwise) Except as indicated on SCHEDULES 5.8(d) OR 5.13regarding any actual, there exists no actual oralleged, to the Knowledge of Seller, any threatened dispute under, termination, cancellation, possible or limitation potential violation or breach of, or any amendmentdefault under, modification, or change to any Assigned Contract, including ; and (iD) the business relationship with any customer, distributor, or related group of customers or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or in the aggregate are Material to the operations and financial condition of the Business, (ii) the requirements of any customer or related group of customers listed on SCHEDULE 5.8(f) or such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or (iii) the business relationship with any supplier except as set forth on SCHEDULE 5.24 Schedule 4(d)(ii), the Sellers have not waived any of its rights under any Assigned Contract. Except for the Assigned Contracts, there is no agreement, written or oral, between the Sellers and any other material supplier to the Business.
(e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or party with respect to the Business or the Acquired Assets that remains outstanding.
(f) SCHEDULE 5.8(f) sets forth Titles. Except for the year ended December 31sublicenses identified on Schedule A-4, 2002 and for the three Sellers have not assigned and, to the Sellers' Knowledge, their respective assignees (3) month period ended March 31, 2003 (a) the names and addresses including Affiliates of the twenty (20Sellers) largest customers of the Business, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(f), Seller has no Knowledge that any such customer has ceased, or will cease, to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Date.
(g) SCHEDULE 5.8(g) contains an accurate and complete list of all Contracts, transfers of assets or liabilities or other commitments or transactions, whether or have not entered into in the Ordinary Course of Business, to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required to be set forth in SCHEDULE 5.8(g) was on terms and conditions as favorable to Seller or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basisassigned, any interest in of their rights (including by way of sublicense) or granted any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person owns, or has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has (i) had business dealings or a material financial interest in any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g), each of which has been conducted in rights under the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter marketAssigned Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Take Two Interactive Software Inc)
Assigned Contracts. (a) 4.14.1 Exhibit A true identifies and correct copy (and, if oral, provides an accurate written description) and complete ---------- description of each Assigned Contract. The Seller has delivered to the Buyer accurate and complete copies of all Contracts identified in Exhibit A, including any modifications, amendments, renewals or extensions thereof (other than purchase orders) that (v) ---------- all amendments thereto. Each Contract is a Contract with any of the customers of the Business listed on SCHEDULE 5.8(f), (w) has a duration of twelve (12) months or more, (x) requires or could require any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, valid and any Related Person, on the other hand, or (z) is material to the Business has been provided to Purchaser. The Assigned Contracts represent all of the Contracts that are used primarily in the Businessfull force and effect.
(b) SCHEDULE 5.8(b) contains a true and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement in excess of $100,000 and that remain outstanding as of the date hereof.
(c) 4.14.2 Except as set forth on SCHEDULE 5.8(c), each in Section 4.14 of the Seller's Disclosure Schedule: (i) no party has violated or breached, or declared or committed any default under, any Assigned Contracts is Contract; (ii) no event has occurred, and no circumstance or condition exists, that might (with or without notice or lapse of time) (A) result in full force and effect and there exists no Default under a violation or breach of any of the Assigned Contracts by Seller or any Subsidiary thereof or, to the Knowledge provisions of Seller, any other party to the Assigned Contracts or any event which, will or is reasonably likely to create a Default thereunder by Seller or any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts. Except as set forth on SCHEDULE 5.2, each Assigned Contract is fully assignable without the Consent of any Third Party.
(d) Except as indicated on SCHEDULES 5.8(d) OR 5.13, there exists no actual or, to the Knowledge of Seller, any threatened dispute under, termination, cancellation, or limitation of, or any amendment, modification, or change to any Assigned Contract, including (iB) give any party the business relationship with right to declare a default or exercise any customerremedy under any Assigned Contract, distributor(C) give any party the right to accelerate the maturity or performance of any Assigned Contract, or related group of customers (D) give any party the right to cancel, terminate or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or in the aggregate are Material to the operations and financial condition of the Business, (ii) the requirements of modify any customer or related group of customers listed on SCHEDULE 5.8(f) or such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or Assigned Contract; (iii) the business relationship with Seller has not received any supplier set notice or other communication (in writing or otherwise) regarding any actual, alleged, possible or potential violation or breach of, or default under, any Business Contract; and (iv) the Seller has not waived any right under any Business Contract.
4.14.3 Set forth on SCHEDULE 5.24 or any other material supplier to the Business.
(e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or with respect to the Business or the Acquired Assets that remains outstanding.
(f) SCHEDULE 5.8(f) sets forth for the year ended December 31, 2002 and for the three (3) month period ended March 31, 2003 (a) the names and addresses Section 4.14 of the twenty (20) largest customers of the BusinessSeller Disclosure Letter is a true, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(f), Seller has no Knowledge that any such customer has ceased, or will cease, to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Date.
(g) SCHEDULE 5.8(g) contains an accurate correct and complete list of all pre-paid accounts underlying the Assigned Contracts, transfers of assets or liabilities or other commitments or transactions, whether or not entered into in the Ordinary Course of Business, to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. ;
4.14.4 Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required to be set forth in SCHEDULE 5.8(g) was on terms Section 4.14 of the Seller's Disclosure Schedule, the Seller has never guaranteed or otherwise agreed to cause, insure or become liable for, and conditions as favorable the Seller has never pledged any of its assets to Seller secure, the performance or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party payment of any obligation or other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person Liability of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basis, any interest in any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person ownsother party.
4.14.5 No party is renegotiating, or has ownedthe right to renegotiate, of record any amount paid or as a beneficial owner, an equity interest payable to the Seller under any Assigned Contract or any other financial term or profit interest in provision of any Person that Assigned Contract.
4.14.6 The Seller has no knowledge of any basis upon which any party to any Assigned Contract may object to (i) had business dealings or a material financial interest in the assignment to the Buyer of any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g)right under such Assigned Contract, each of which has been conducted in the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served the delegation to or performance by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock Buyer of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter marketobligation under such Assigned Contract.
Appears in 1 contract
Assigned Contracts. (a) A true 4.16.1 Exhibit B identifies and correct copy (and, if oral, provides an accurate written description) and complete description of each Assigned Contract. The Seller has delivered to the Buyer accurate and complete copies of all Contracts identified in Exhibit B, including any modifications, amendments, renewals or extensions thereof (other than purchase orders) that (v) all amendments thereto. Each Contract is a Contract with any of the customers of the Business listed on SCHEDULE 5.8(f), (w) has a duration of twelve (12) months or more, (x) requires or could require any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, valid and any Related Person, on the other hand, or (z) is material to the Business has been provided to Purchaser. The Assigned Contracts represent all of the Contracts that are used primarily in the Businessfull force and effect.
(b) SCHEDULE 5.8(b) contains a true and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement in excess of $100,000 and that remain outstanding as of the date hereof.
(c) 4.16.2 Except as set forth on SCHEDULE 5.8(c), each in Section 4.16 of the Seller’s Disclosure Schedule: (i) no party has violated or breached, or declared or committed any default under, any Assigned Contracts is Contract; (ii) no event has occurred, and no circumstance or condition exists, that might (with or without notice or lapse of time) (A) result in full force and effect and there exists no Default under a violation or breach of any of the provisions of any Assigned Contracts by Contract, (B) give any party the right to declare a default or exercise any remedy under any Assigned Contract, (C) give any party the right to accelerate the maturity or performance of any Assigned Contract, or (D) give any party the right to cancel, terminate or modify any Assigned Contract; (iii) the Seller has not received any notice or other communication (in writing or otherwise) regarding any Subsidiary thereof oractual, to the Knowledge of Selleralleged, possible or potential violation or breach of, or default under, any other party to Business Contract; and (iv) the Assigned Contracts or Seller has not waived any event which, will or is reasonably likely to create a Default thereunder by Seller or right under any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts. Business Contract.
4.16.3 Except as set forth on SCHEDULE 5.2in Section 4.16 of the Seller’s Disclosure Schedule, each the Seller has never guaranteed or otherwise agreed to cause, insure or become liable for, and the Seller has never pledged any of its assets to secure, the performance or payment of any obligation or other Liability of any other party.
4.16.4 No party is renegotiating any amount paid or payable to the Seller under any Assigned Contract is fully assignable without the Consent or any other term or provision of any Third PartyAssigned Contract; provided, however, Buyer understands the rights of the parties under Assigned Contracts are subject to the provisions of such contracts.
(d) Except as indicated on SCHEDULES 5.8(d) OR 5.13, there exists 4.16.5 The Seller has no actual or, to the Knowledge knowledge of Seller, any threatened dispute under, termination, cancellation, or limitation of, or basis upon which any amendment, modification, or change party to any Assigned Contract, including Contract may object to (i) the business relationship with assignment to the Buyer of any customer, distributorright under such Assigned Contract, or related group of customers or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or in the aggregate are Material to the operations and financial condition of the Business, (ii) the requirements delegation to or performance by the Buyer of any customer or related group of customers listed on SCHEDULE 5.8(f) or obligation under such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the BusinessAssigned Contract, or (iii) the business relationship with any supplier set forth on SCHEDULE 5.24 or any other material supplier to the Business.
(e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or with respect to the Business or the Acquired Assets that remains outstanding.
(f) SCHEDULE 5.8(f) sets forth for the year ended December 31, 2002 and for the three (3) month period ended March 31, 2003 (a) the names and addresses of the twenty (20) largest customers of the Business, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(f), Seller has no Knowledge that specified with the terms of any such customer has ceased, or will cease, to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Datecontract.
(g) SCHEDULE 5.8(g) contains an accurate and complete list of all Contracts, transfers of assets or liabilities or other commitments or transactions, whether or not entered into in the Ordinary Course of Business, to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required to be set forth in SCHEDULE 5.8(g) was on terms and conditions as favorable to Seller or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basis, any interest in any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person owns, or has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has (i) had business dealings or a material financial interest in any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g), each of which has been conducted in the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter market.
Appears in 1 contract
Assigned Contracts. (a) A true Each Assigned Contract is legal, valid, binding, enforceable and correct copy (and, if oral, an accurate written description) of each Assigned Contract, including any modifications, amendments, renewals or extensions thereof (other than purchase orders) that (v) is a Contract with any of the customers of the Business listed on SCHEDULE 5.8(f), (w) has a duration of twelve (12) months or more, (x) requires or could require any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, and any Related Person, on the other hand, or (z) is material to the Business has been provided to Purchaser. The Assigned Contracts represent all of the Contracts that are used primarily in the Business.
(b) SCHEDULE 5.8(b) contains a true and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement in excess of $100,000 and that remain outstanding as of the date hereof.
(c) Except as set forth on SCHEDULE 5.8(c), each of the Assigned Contracts is in full force and effect against the applicable Seller and, to Sellers’ Knowledge, against each counterparty thereto, subject to the Enforceability Exceptions. No Seller or, to Sellers’ Knowledge, no counterparty to an Assigned Contract is in breach or default, in any material respect, under such Assigned Contract and there to Sellers’ Knowledge, no event has occurred or circumstance exists which, with notice, lapse of time or both would constitute such a material breach or default, and during the last twelve months, no Default under Seller Party has received any written or, to Seller’s Knowledge, other notice of the any alleged default. No Party to an Assigned Contracts by Seller Contract has terminated, materially modified, accelerated or any Subsidiary thereof orcancelled such Assigned Contract nor, to the Knowledge of Sellerthe Sellers, does any counterparty to an Assigned Contract intend to do so. Buyer has been provided with a true, correct and complete copy of each Assigned Contract. Except for (i) each of the Contracts set forth on Schedule 2.7, (ii) any Contracts of insurance, (iii) intercompany arrangements in respect of or relating to the Purchased Assets, each of which will be terminated as of Closing with no further obligations or liabilities to any part thereto, and (iv) any Contract that will have no effect on Buyer, the Purchased Assets or Buyer’s ownership of the Purchased Assets from and after the Closing Date, none of the Purchased Assets is subject to, or the subject of, any Contract or agreement (whether written or oral), including any lease, other party to the Assigned Contracts or any event which, will or is reasonably likely to create a Default thereunder by Seller or any Subsidiary thereof or, to the Knowledge of Seller, any other party to than the Assigned Contracts. Except As of the date hereof, Sellers and their Affiliates have purchased Parts and Services (as set forth on SCHEDULE 5.2, each Assigned Contract is fully assignable without defined in the Consent of any Third Party.
(dGE MMP Contract) Except as indicated on SCHEDULES 5.8(d) OR 5.13, there exists no actual or, from GE pursuant to the Knowledge of SellerGE MMP Contract in an aggregate amount equal to at least $12,500,000, any threatened dispute under, termination, cancellation, or limitation of, or any amendment, modification, or change to any Assigned Contract, including which amount is credited in full against the Minimum Spend Amount (i) the business relationship with any customer, distributor, or related group of customers or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or as defined in the aggregate are Material to the operations and financial condition of the Business, (ii) the requirements of any customer or related group of customers listed on SCHEDULE 5.8(f) or such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or (iii) the business relationship with any supplier set forth on SCHEDULE 5.24 or any other material supplier to the Business.
(e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or with respect to the Business or the Acquired Assets that remains outstanding.
(f) SCHEDULE 5.8(f) sets forth for the year ended December 31, 2002 and for the three (3) month period ended March 31, 2003 (a) the names and addresses of the twenty (20) largest customers of the Business, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(fGE MMP Contract), Seller has no Knowledge that any such customer has ceased, or will cease, to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Date.
(g) SCHEDULE 5.8(g) contains an accurate and complete list of all Contracts, transfers of assets or liabilities or other commitments or transactions, whether or not entered into in the Ordinary Course of Business, to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required to be set forth in SCHEDULE 5.8(g) was on terms and conditions as favorable to Seller or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basis, any interest in any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person owns, or has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has (i) had business dealings or a material financial interest in any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g), each of which has been conducted in the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter market.57073941 ACTIVE/131483433.18 #205642 v2
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Assigned Contracts. (a) 4.14.1 Exhibit A true and correct copy (and, if oral, an accurate written description) of identifies each Assigned Contract. Seller has delivered to Buyer accurate and complete copies of all Contracts identified in Exhibit A, including any modificationsall amendments thereto. Each Assigned Contract is valid and binding against Seller and, amendmentsto Seller’s knowledge, renewals or extensions thereof (each other than purchase orders) that (v) is a Contract with any of the customers of the Business listed on SCHEDULE 5.8(f), (w) has a duration of twelve (12) months or more, (x) requires or could require any party thereto to pay $100,000 or more, (y) is between Seller or any Subsidiary thereof, on the one hand, and any Related Person, on the other hand, or (z) is material to the Business has been provided to Purchaser. The Assigned Contracts represent all of the Contracts that are used primarily in the Businessthereto.
(b) SCHEDULE 5.8(b) contains a true and correct list of all commitments for capital expenditures that have been approved or made by Seller or any Subsidiary thereof with respect to the Business prior to the date of this Agreement in excess of $100,000 and that remain outstanding as of the date hereof.
(c) 4.14.2 Except as set forth on SCHEDULE 5.8(c), each in Section 4.14 of the Seller Disclosure Schedule: (i) to Seller’s knowledge no party has violated or breached, or declared or committed any default under, any Assigned Contracts is Contract; (ii) to Seller’s knowledge no event has occurred, and no circumstance or condition exists, that might (with or without notice or lapse of time) (A) result in full force and effect and there exists no Default under a violation or breach of any of the provisions of any Assigned Contracts by Contract, (B) give any party the right to declare a default or exercise any remedy under any Assigned Contract, (C) give any party the right to accelerate the maturity or performance of any Assigned Contract, or (D) give any party the right to cancel, terminate or modify any Assigned Contract; (iii) Seller has not received any notice or other communication (in writing or otherwise) regarding any actual, alleged, possible or potential violation or breach of, or default under, any Assigned Contract; and (iv) Seller has not waived any right under any Assigned Contract.
4.14.3 No party is renegotiating, or has the right to renegotiate, any amount paid or payable to Seller under any Assigned Contract or any Subsidiary thereof or, to the Knowledge other term or provision of Seller, any other party to the Assigned Contracts or any event which, will or is reasonably likely to create a Default thereunder by Seller or any Subsidiary thereof or, to the Knowledge of Seller, any other party to the Assigned Contracts. Contract.
4.14.4 Except as set forth on SCHEDULE 5.2in Section 4.14 of the Seller Disclosure Schedule, each Assigned Contract is fully assignable without the Consent Seller has no knowledge of any Third Party.
(d) Except as indicated on SCHEDULES 5.8(d) OR 5.13, there exists no actual or, to the Knowledge of Seller, basis upon which any threatened dispute under, termination, cancellation, or limitation of, or any amendment, modification, or change party to any Assigned Contract, including Contract may object to (i) the business relationship with assignment to Buyer of any customer, distributorright under such Assigned Contract, or related group of customers or distributors listed on SCHEDULE 5.8(f) or such other customer, distributor or related group of customers or distributors whose purchases individually or in the aggregate are Material to the operations and financial condition of the Business, (ii) the requirements delegation to or performance by Buyer of any customer or related group of customers listed on SCHEDULE 5.8(f) or obligation under such other customer or related group of customers of the Business whose purchases individually or in the aggregate are material to the operations and financial condition of the Business, or (iii) the business relationship with any supplier set forth on SCHEDULE 5.24 or any other material supplier to the BusinessAssigned Contract.
(e) Neither Seller nor any Subsidiary thereof has granted any power of attorney affecting or with respect to the Business or the Acquired Assets that remains outstanding.
(f) SCHEDULE 5.8(f) sets forth for the year ended December 31, 2002 and for the three (3) month period ended March 31, 2003 (a) the names and addresses of the twenty (20) largest customers of the Business, as ranked by revenues from such customers and (b) the amount invoiced with respect to each of such customers during each such period, and except as disclosed on SCHEDULE 5.8(f), Seller has no Knowledge that any such customer has ceased, or will cease, to purchase merchandise or services from Seller or its Subsidiaries, or has substantially reduced or will substantially reduce the use of such merchandise or services following the Closing Date.
(g) SCHEDULE 5.8(g) contains an accurate and complete list of all Contracts, transfers of assets or liabilities or other commitments or transactions, whether or not entered into in the Ordinary Course of Business, to or by which Seller or any Subsidiary thereof, on the one hand, and any Affiliate thereof, on the other hand, are or have been a party or otherwise bound or affected, and that are currently pending or in effect and relate to or affect the Business. Except as disclosed in SCHEDULE 5.8(g), each Contract, transfer of assets or liabilities or other commitment or transaction set forth or required to be set forth in SCHEDULE 5.8(g) was on terms and conditions as favorable to Seller or its Subsidiary as would have been obtainable by it at the time in a comparable arm's-length transaction with a Third Party other than an Affiliate. Except as disclosed in SCHEDULE 5.8(g), no Related Person of Seller or any Subsidiary thereof owns, directly or indirectly, on an individual or joint basis, any interest in any Acquired Assets. Except as disclosed in SCHEDULE 5.8(g), neither Seller nor any Related Person owns, or has owned, of record or as a beneficial owner, an equity interest or any other financial or profit interest in any Person that has (i) had business dealings or a material financial interest in any transaction with Seller other than business dealings or transactions disclosed in SCHEDULE 5.8(g), each of which has been conducted in the Ordinary Course of Business at substantially prevailing market prices and on substantially prevailing market terms or (ii) engaged in a Competing Business in any market presently served by Seller or any Subsidiary thereof with respect to the Business, except for ownership of less than one percent (1%) of the outstanding capital stock of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter market.
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