Contracts; No Defaults. (a) Section 4.13(a) of the Disclosure Letter lists and the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document): (i) any Contracts with any director, manager or officer or Affiliate of the Company; (ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents; (iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000; (iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects; (v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document); (vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee; (vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee; (viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities; (ix) any Contracts relating to any currency hedging; (x) any Contracts containing “standstill” or similar provisions; (xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies; (xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction; (xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization; (xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000; (xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000; (xvi) any Loan Documents; (xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000; (xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location; (xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company; (xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000; (xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000; (xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and (xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.” (b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 4 contracts
Sources: Merger Agreement (Inland American Real Estate Trust, Inc.), Merger Agreement (Inland American Real Estate Trust, Inc.), Merger Agreement (Inland American Real Estate Trust, Inc.)
Contracts; No Defaults. (a) Section 4.13(a) 4.12 of the Company Disclosure Letter lists and the Company made available to Parent prior to the date hereof copies Schedule contains a listing of each all of the following Contracts (and all amendments, modifications and supplements thereto) to which the Company or any Acquired Company of its Subsidiaries is a party or by which otherwise has any of their respective properties remaining rights or assets are bound obligations (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Documentother than Company Benefit Plans covering more than one individual):
(i) each Contract that the Company reasonably anticipates will involve annual payments or consideration furnished by or to the Company or any Contracts with any director, manager or officer or Affiliate of the Companyits Subsidiaries of more than $50,000;
(ii) any Contracts evidencing, governing or each Contract relating to Debt Indebtedness, including the borrowing of money, or mortgaging, pledging or otherwise placing a Lien on any assets of the Company or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documentsits Subsidiaries;
(iii) each Contract for the acquisition of any Contracts that reflect transactionsPerson or any business division thereof or the disposition of any material assets of the Company or any of its Subsidiaries;
(iv) each lease, rental or occupancy agreement, real property license, installment and conditional sale agreement or other Contract that, in each case, provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property;
(v) each Contract providing for any royalty, milestone or similar payments by, or owed to, the Company or any of its Subsidiaries on or after the date hereof;
(vi) each joint venture Contract, partnership agreement or limited liability company agreement with a third party;
(vii) each Contract requiring capital expenditures after the date of this Agreement in an annual amount in excess of $20,000;
(viii) each Contract in which the Company or any of its Subsidiaries is subject to noncompetition or non-solicitation (other than confidentiality agreements with customers of the Company or any of its Subsidiaries entered into in the ordinary course of business, that involve expenditures, business and set forth in cash the Company’s standard terms and conditions of sale or any other standard form of considerationemployment agreement, in excess forms of $1,000,000;
(ivwhich have previously been made available to Buyer) except for that restricts the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage its Subsidiaries in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesmaterial respect;
(ix) each (A) employment Contract (excluding offer letters for at-will employment that do not provide for severance or for advance notice of termination or for any Contracts relating to any currency hedgingchange of control, transaction, retention or other special remuneration) ;
(x) any Contracts containing “standstill” each Contract, plan, policy or similar provisionsprogram providing for severance, termination compensation, retention or stay pay, change in control payments or transaction-based bonuses;
(xi) each settlement Contract settling claims against the Company or any Contracts (A) to which of its Subsidiaries or any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businessescurrent or former directors, the absence of officers, employees or consultants (including any Contract in connection with which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companiesany employment-related claim is settled);
(xii) each Contract which contains any Contracts provisions with ongoing obligations requiring that the Company or any of the Acquired Companies give its Subsidiaries to indemnify any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
other party (xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property excluding indemnities contained in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition purchase, sale or disposition, directly license of products or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts services entered into in the ordinary course of business);
(xiii) each Contract containing covenants materially limiting (A) the types of business in which the Company or potential liability any of its Subsidiaries (or, after giving effect to the First Merger, Buyer or any of its Affiliates) may engage, (B) the geographic locations in which the Company or any of its Subsidiaries (or, after giving effect to the First Merger, Buyer or its Affiliates) may so engage in any business or (C) the products that the Company or any of its Subsidiaries (or, after giving effect to the First Merger, Buyer or any of its Affiliates) may research, develop, manufacture or commercialize;
(xiv) each Contract entered into by the Company or any of its Subsidiaries with any Affiliate of the Acquired Companies under Company or with any purchase price adjustment thatcurrent or former officer, director or stockholder of the Company or any of its Subsidiaries or any Affiliate thereof;
(xv) each Contract relating to grants, funding or other forms of assistance received by the Company or any of its Subsidiaries from any Governmental Authority;
(xvi) each Contract relating the research, development, clinical trial, manufacturing, distribution, supply, marketing or co-promotion of any products, product candidates or devices in development by or which has been or which is being researched, developed, marketed, distributed, supported, sold or licensed out, in each casecase by or on behalf of the Company or any of its Subsidiaries; and
(xvii) each Contract pursuant to which the Company or any of its Subsidiaries (A) licenses from, or has otherwise been assigned, transferred or granted any covenant not to assert by, a third party, any Intellectual Property used in connection with the Exploitation of any Company Regulated Product that is material to the Company’s business (other than (1) (x) click-wrap, shrink-wrap and off-the-shelf software licenses, and (y) any other software licenses that are available on standard terms to the public generally, in each case of (x) and (y) with license, maintenance, support and other fees less than $10,000 per year) and (2) standard employee and consultant assignment agreements in the form made available to Buyer, (B) has licensed, assigned, sold or transferred to a third party, or otherwise granted to a third party, any right or covenant not to assert under any Company Intellectual Property, or (C) has agreed to indemnify a third party against any claim of infringement, violation or misappropriation of any Intellectual Property.
(b) True and complete copies of the Contracts listed (or required to be listed) on Section 4.12 of the Company Disclosure Schedule have been delivered to or made available to Buyer or its representatives. All of the Contracts set forth (or required to be set forth) on Section 4.12 of the Company Disclosure Schedule are (i) in full force and effect, subject to the Remedies Exception, and (ii) represent the valid and binding obligations of the Company or its Subsidiary or Subsidiaries party thereto and, to the Knowledge of the Company, represent the valid and binding obligations of the other parties thereto. Neither the Company nor, to the Knowledge of the Company, any other party thereto is in breach of or default under any such Contract. Neither Company nor any of its Subsidiaries has received any claim or notice of breach of or default under any such Contract. To the Knowledge of the Company, no event has occurred which, individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 4 contracts
Sources: Merger Agreement (Telix Pharmaceuticals LTD), Merger Agreement (Telix Pharmaceuticals LTD), Merger Agreement (Telix Pharmaceuticals LTD)
Contracts; No Defaults. (a) Section 4.13(a) True, correct and complete copies of the Disclosure Letter lists and the Company made available to Parent prior to the date hereof copies of each of the following Contracts (A) described in clauses (i) through (xv) below and all amendments, modifications and supplements thereto(B) to which the Company or any Acquired Company of the Company’s Subsidiaries is a party or by which any of their respective properties or assets they are bound have been delivered to or made available to Acquiror or its Representatives, together with all amendments thereto (notwithstanding anything hereincollectively, the “Material Contract” shall not include any Contract that (1Contracts”). Section 5.13(a) will be fully performed and satisfied on or prior to of the Closing, (2) is a Ground Lease or (3) is an Organizational Document):Company Disclosure Letter sets forth the list of such Material Contracts.
(i) any Contracts with any directorEach Contract involving obligations (contingent or otherwise), manager payments or officer revenues in excess of $200,000 in the last twelve (12) months prior to the date of this Agreement or Affiliate expected obligations (contingent or otherwise), payments or revenues in excess of $200,000 in the Companynext twelve (12) months after the date of this Agreement;
(ii) any Contracts evidencingEach note, governing debenture, other evidence of Indebtedness, guarantee, loan, credit or relating to Debt financing agreement or instrument or other Contract for money borrowed by, or other Indebtedness of, the Company or any guarantee by any Acquired Company of the Company’s Subsidiaries, including any other Person agreement or commitment for future loans, credit or financing, in each case, in excess of $750,000, other than the Loan Documents200,000;
(iii) Each Contract for the acquisition of any Contracts that reflect transactions, other than Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries in the ordinary course of business, that involve expenditureslast two (2) years, in cash or any other form of considerationeach case, involving payments in excess of $1,000,000200,000 other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, or (B) solely between the Company and its Subsidiaries;
(iv) except Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any Contracts that leasehold or other interest in any way purport to restrict the business activity real or personal property that involves aggregate payments in excess of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage $100,000 in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projectscalendar year;
(v) any Contracts that provide an obligation to fund Each Contract involving the formation, establishment, contribution to, or make operation of a (A) partnership, (B) corporation, limited liability company or other entity, or (C) joint venture, alliance or similar entity, or involving a sharing of profits or losses (including joint development and joint marketing Contracts), or any investment in in, loan to or acquisition or sale of the securities, Equity Securities or assets of any person involving payments of an amount higher than $500,000 (whether excluding, in the form case of a loanclauses (A) and (B), capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational DocumentCompany);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to between the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance Company or any similar right of its Subsidiaries, on the one hand, and any Company Related Party, on the other hand (collectively, “Related Party Agreements”), since July 25, 2019, other than (i) Contracts with respect to any securities a Company Related Party’s employment or other similar engagement and confidentiality agreements, and (Cii) providing any of the Acquired Companies with any right of first refusal with respect toend-user, consumer, client or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligationscustomer agreements entered into on an arm’s length basis, or (Biii) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course other agreements of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated)nature, in each case, having value of more than $500,000;
(xv) any Contracts relating to case with the development Company or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts its Subsidiaries entered into in the ordinary course of businessbusiness consistent with past practice;
(vii) Contracts with each current or potential liability former executive officer, director or executive level employee of any Group Company since January 1, 2021;
(viii) Contracts that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the Acquired Companies under transactions contemplated hereby;
(ix) Contracts containing covenants of the Company or any of the Company’s Subsidiaries (A) prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to engage in or compete with any Person in any line of business in any material respect or (B) prohibiting or restricting the Company’s and the Company’s Subsidiaries’ ability to conduct their business in any geographic area in any material respect;
(x) Each Contract (including license agreements, coexistence agreements, and agreements with covenants not to sue, but not including non-disclosure agreements, contractor services agreements, consulting services agreements, incidental trademark licenses incident to marketing, printing or advertising Contracts) pursuant to which the Company or any of the Company’s Subsidiaries (A) grants to a third Person the exclusive right to use Intellectual Property of the Company and its Subsidiaries that is material to the business of the Company and its Subsidiaries, taken as a whole, or (B) is granted by a third Person the right to use Intellectual Property that is material to the business of the Company and its Subsidiaries taken as a whole (other than Contracts granting nonexclusive rights to use commercially available off-the-shelf software and Open Source Licenses) (collectively, the Contracts within the scope of this clause (B), the “Material In-Licenses”);
(xi) Each Contract requiring capital expenditures by the Company or any of the Company’s Subsidiaries after the date of this Agreement in an amount in excess of $200,000 in any calendar year;
(xii) Any Contract that grants to any third Person any “most favored nation rights”;
(xiii) Contracts granting to any Person (other than the Company or its Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase price adjustment thator acquire equity interests in the Company or any of the Company’s Subsidiaries;
(xiv) Contracts in connection with the waiver, compromise, or settlement of any dispute, claim, litigation or arbitration involving an Action, claim or proceeding in an amount higher than $200,000; and
(xv) Contracts with a Governmental Authority or sole-source supplier of any product or service (other than utilities), in each case involving payments of an amount higher than $200,000.
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Share Exchange Closing Date, all of the Material Contracts are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or the relevant Subsidiary of the Company thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to the business of the Company and its Subsidiaries, taken as a whole, (x) the Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under such Material Contracts and neither the Company, the Company’s Subsidiaries, nor, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract, (y) during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Material Contract, and (z) to the knowledge of the Company, no event has occurred which individually or together with other events, has or would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or any of its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 4 contracts
Sources: Business Combination Agreement (Prime Number Holding LTD), Business Combination Agreement (Prime Number Holding LTD), Business Combination Agreement (Prime Number Holding LTD)
Contracts; No Defaults. (a) Section 4.13(a4.16(a) of the Disclosure Letter lists and and, except to the extent filed in full without redaction as an exhibit to a Company SEC Report, the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company or, to the knowledge of the Acquired Companies, any Minority JV Entity, is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease Lease, or (3) is an Organizational Documentany confidentiality, “standstill” or other similar agreement entered between the Company and any potential acquiror of the Company):
(i) any Contracts with any director, manager director or officer or Affiliate of the CompanyCompany or, to the knowledge of the Acquired Companies, any of the Minority JV Entities;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company or, to the knowledge of the Acquired Companies, any Minority JV Entity of Debt of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport purports to restrict the business activity of any Acquired Company or any of their AffiliatesAffiliates or, to the knowledge of the Acquired Companies, any of the Minority JV Entities, or to limit the freedom of any Acquired Company or any of their Affiliates or, to the knowledge of the Acquired Companies, any of the Minority JV Entities to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ or, to the knowledge of the Acquired Companies, any of the Minority JV Entities’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, JV Entity or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies or, to the knowledge of the Acquired Companies, any of the Minority JV Entities with any right of first refusal with respect to, or right to repurchase or redeem, any securities, except for Contracts evidencing Company Stock Options and Restricted Shares;
(ix) any Contracts providing for or relating to any warranty or similar obligation;
(x) any Contracts relating to any currency hedging;
(xxi) any Contracts containing “standstill” or similar provisions;
(xixii) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies or, to the knowledge of the Acquired Companies, any of the Minority JV Entities in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xiixiii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiiixiv) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xivxv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xvxvi) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies or, to the knowledge of the Acquired Companies, any of the Minority JV Entities in excess of $1,000,000500,000;
(xvixvii) any Loan Documents;
(xviixviii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviiixix) any Contracts relating to the operations of the Properties, other than including the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 250,000 per Property location;
(xixxx) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly wholly-owned Subsidiary of the Company;
(xxxxi) any Contracts other than in connection with currently required to be filed as an exhibit to the Franchise Agreements, Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Management Agreement Documents or the Loan Documents Securities Act;
(xxii) any Contracts under which any of the Acquired Companies or, to the knowledge of the Acquired Companies, any of the Minority JV Entities has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies or, to the knowledge of the Acquired Companies, any of the Minority JV Entities under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000500,000;
(xxixxiii) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000500,000;
(xxiixxiv) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiiixxv) any Contract (other than Contracts referenced in clauses (i) through (xxiixxiv) of this Section 4.13(a4.16(a)) which by its terms calls for payments in excess of $1,000,000500,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies or, to the knowledge of the Acquired Companies, any of the Minority JV Entities is and and, to the knowledge of the Acquired Companies, no other party is in breach or violation of, or default under, any Material Contract, (ii) none of the Acquired Companies or, to the knowledge of the Acquired Companies, none of the Minority JV Entities has received any written claim of default under any such Material Contract, (iii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, or, to the knowledge of the Acquired Companies, any of the Minority JV Entities, if applicable, or any other party thereto, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iiiiv) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and, to the knowledge of the Acquired Companies, with respect to the Minority JV Entities, if applicable, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 3 contracts
Sources: Merger Agreement (Winston Hotels Inc), Merger Agreement (Winston Hotels Inc), Merger Agreement (Inland American Real Estate Trust, Inc.)
Contracts; No Defaults. (a) Section 4.13(a5.11(a) of the Company Disclosure Letter lists and Schedule contains a listing of all Contracts described in clauses (i) through (xiv) below to which the Company made available to Parent prior to the date hereof copies or any of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which any of their respective properties or assets are it is bound (notwithstanding anything hereineach Contract required to be listed on Section 5.11(a) of the Company Disclosure Schedule, a “Material Significant Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document”):
(i) any Contracts Contract with any directora Top 15 Vendor or Top 15 Customer (other than purchase or service orders accepted, manager confirmed or officer or Affiliate entered into in the Ordinary Course of the CompanyBusiness);
(ii) each employment Contract with any Contracts evidencing, governing employee of the Company or relating to Debt or any guarantee by any Acquired Company one of any other Person its Subsidiaries that provides for annual base compensation in excess of $750,000, other than the Loan Documents250,000;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000each collective bargaining Contract (a “Labor Contract”);
(iv) except for any Contract pursuant to which the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliatesits Subsidiaries leases, subleases, occupies or to limit otherwise uses any real property (the freedom of “Real Property Leases”);
(v) (A) any Acquired Contract under which the Company or any of their Affiliates its Subsidiaries has granted to engage a third party any license or covenant not to ▇▇▇ with respect to any Intellectual Property, other than non-exclusive licenses granted in the Ordinary Course of Business, or (B) any Contract pursuant to which the Company or any of its Subsidiaries obtains any license or covenant not to ▇▇▇ from a third party with respect to any Intellectual Property, other than licenses of Software that are commercially available to the public generally, with annual license, maintenance, support and other fees less than $25,000;
(vi) any Contract that (A)(1) contains a covenant not to compete in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except solicit persons for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person employment (other than non-disclosure agreements, confidentiality agreements entered into in the Ordinary Course of Business), (2) grants exclusive or preferential rights or “most favored nations” status to any Organizational Document);
person, or (vi3) obligates the Company or any Contracts providing for of its Subsidiaries to purchase or obtain a minimum or specified amount of any indemnification obligations product or service in effect for excess of $150,000 in the aggregate, in each case that is applicable to the Company or any current of its Subsidiaries or former officer, director, trustee (B) prohibits the Company or employeeany of its Subsidiaries from soliciting any customers or strategic partners;
(vii) any Contract under which the Company or any of its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for money borrowed (excluding, for the avoidance of doubt, any intercompany arrangements solely between or among the Company or any of its Subsidiaries), (B) granted a Lien on its assets or group of assets, whether tangible or intangible, to secure any indebtedness for money borrowed, (C) extended credit to any Person (other than Contracts evidencing involving immaterial advances made to an employee of the Company or any employment agreementsof its Subsidiaries in the Ordinary Course of Business) or (D) granted a material performance bond, severanceletter of credit or any other similar instrument, change in control or termination agreements with any officereach case, director, trustee or employeein excess of $100,000;
(viii) any Contract with any Governmental Authority;
(ix) each Contract with a Related Party (other than Company Benefit Plans or Contracts for compensation for services performed by a Related Party as director, officer, service provider or employee of the Company or any of its Subsidiaries and amounts reimbursable for routine travel and other business expenses in the Ordinary Course of Business;
(Ax) each Contract relating to the acquisition, issuance, voting, registrationacquisition or disposition of any business (whether by merger, sale of stock, sale of assets or transfer otherwise);
(xi) any Contract establishing any joint venture, strategic alliance, partnership or other collaboration;
(xii) any Contract involving any resolution or settlement of any securitiesactual or threatened litigation, arbitration, claim or other dispute under which the Company or any of its Subsidiaries has any ongoing obligations (Beither monetary or non-monetary); and
(xiii) providing any Contract which grants any Person with any preemptive righta right of first refusal, right of participation, right of maintenance first offer or any similar right with respect to any securities properties, assets or (C) providing businesses of the Company or any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;its Subsidiaries.
(ixb) any Contracts relating True and correct copies of each Significant Contract have been delivered to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) made available to which any Governmental Body Tuatara. Each Significant Contract is a party or under which any Governmental Body has any rights or obligationsin full force and effect and represents the legal, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by valid and binding obligations of the Acquired Companies parties thereto and is enforceable in accordance with its terms and conditions. Neither the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that Company nor any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposalits Subsidiaries nor, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary knowledge of the Company;
(xx) , any Contracts other than party to any such Significant Contract is in connection with breach of or in default under any Significant Contract. Neither the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which Company nor any of its Subsidiaries has received any written claim or notice of breach of or default under any Significant Contract, and, to the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability knowledge of the Acquired Companies under any purchase price adjustment thatCompany, in each caseno event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Significant Contract and (B) by the Company or any Subsidiary of the Company party thereto or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material ). No party to any Significant Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect has exercised termination rights with respect thereto or has indicated that it intends to terminate or materially modify its relationship with the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws Company or any of general applicability relating to or affecting creditors’ rights or by general equitable principlesits Subsidiaries.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Tuatara Capital Acquisition Corp), Agreement and Plan of Merger (Tuatara Capital Acquisition Corp), Merger Agreement (Tuatara Capital Acquisition Corp)
Contracts; No Defaults. (a) Section 4.13(a4.17(a) of the Buyer’s Disclosure Letter lists Schedule contains a complete and the Company accurate list, and Buyer has delivered or made available to Parent prior to the date hereof copies Sellers true and complete copies, of each of the following Contracts (and all amendmentseach, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Buyer Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document”):
(i) any Contracts with any directoreach Applicable Contract that involves performance of services or delivery of goods or materials by or to Buyer, manager or officer that was not entered into in the Ordinary Course of Business, of an amount or Affiliate value in excess of the Company$75,000;
(ii) any Contracts evidencingeach Applicable Contract affecting the ownership of, governing or relating to Debt leasing of, title to, use of or any guarantee by leasehold or other interest in, any Acquired Company real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of any other Person in excess less than $50,000 and with terms of $750,000, other less than the Loan Documentsone year);
(iii) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Contracts that reflect transactions, other than in of the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000Buyer Intellectual Property Assets;
(iv) except for the Loan Documentseach collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(v) each joint venture, the Franchise Agreementspartnership, the Management Agreement Documents and Organization Documentsother Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by Buyer with any Contracts other Person;
(vi) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company Buyer or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates Buyer to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreementseach written warranty, severanceguaranty, change and or other similar undertaking with respect to contractual performance extended by Buyer other than in control or termination agreements with any officer, director, trustee or employee;the Ordinary Course of Business; and
(viii) any Contracts (A) relating to the acquisitioneach written amendment, issuancesupplement, voting, registration, sale or transfer and modification in respect of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would notset forth in Section 4.17(b) of Buyer’s Disclosure Schedule:
(i) Buyer (and no Related Person of Buyer) has not or may not acquire any rights under, individually and Buyer has not or in may not become subject to any obligation or liability under; any Contract that relates to the aggregatebusiness of, have a Material Adverse Effect on or any of the Acquired Companiesassets owned or used by, Buyer; and
(ii) to the Knowledge of Buyer, no officer, director, agent, employee, consultant, or contractor of Buyer is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) none engage in or continue any conduct, activity, or practice relating to the business of the Acquired Companies has received any written claim of default under any such Material Contract and Buyer, or (B) assign to Buyer or to any other Person any rights to any invention, improvement, or discovery.
(c) To the knowledge Knowledge of Buyer, each Buyer Material Contract is in full force and effect and is valid and enforceable in accordance with its terms.
(d) To the Company Parties: Knowledge of Buyer:
(i) none Buyer is, and at all times since July 17, 2001 has been, in fail compliance with all applicable material terms and requirements of the Acquired Companies is and no other party is in breach or violation of, or default under, any each Buyer Material Contract, ;
(ii) each other Person that has or had any obligation or liability under any Buyer Material Contract under which Buyer has or had any rights is, and at all times since inception has been, in full compliance with all material applicable terms and requirements of such Buyer Material Contract; and
(iii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract circumstance exists that (in each case, with or without notice or lapse of time time) may result in a violation or both) and (iii) each breach of any Buyer Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesContract.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Vemics, Inc.), Stock Purchase Agreement (Vemics, Inc.), Stock Purchase Agreement (Vemics, Inc.)
Contracts; No Defaults. (a) Except for the Leases and Company Benefit Plans, Section 4.13(a5.12(a) of the Company Disclosure Letter lists sets forth a complete and accurate list of all of the following Contracts to which the Company made available to Parent and/or any of its Subsidiaries is a party or is otherwise bound as of the date hereof:
(i) Contracts with any Material Customer, Material Carrier or Material Supplier;
(ii) (x) Contracts entered into during the two (2) years prior to the date hereof copies with respect to mergers or acquisitions, sales or repurchases of each of securities or material assets or investments by the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of its Subsidiaries other than such Contracts between the Company and its Subsidiaries and/or their respective properties direct or assets are bound indirect equityholders (notwithstanding anything hereineach an “M&A Contract”), “Material Contract” shall not include any Contract that and (1y) will be fully performed and satisfied on or prior to M&A Contracts in which the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt Company or any guarantee by of its Subsidiaries have any Acquired Company of any other Person in excess of $750,000material obligations or liabilities, other than the Loan Documentsincluding deferred purchase price payments, earn-out payments or indemnification obligations;
(iii) Contracts establishing partnerships or joint ventures, in each case, that are material to the Company and its Subsidiaries, taken as a whole;
(iv) each Contract with Governmental Authorities that is not terminable by any party with ninety days’ notice or less requiring aggregate future payments to the Company and its Subsidiaries in excess of $1,000,000 in any calendar year;
(v) Contracts relating to any Indebtedness or any guarantee thereof, including any mortgage, indenture, note, installment obligation or other instrument or agreement related thereto, except any such Contract (A) with an aggregate outstanding principal amount not exceeding $300,000 or (B) between or among the Company and its Subsidiaries;
(vi) Contracts that reflect transactions, other than relate to the settlement or final disposition of any material Action within the last three (3) years pursuant to which the Company or any of its Subsidiaries has material ongoing obligations or liabilities;
(vii) each material Contract to which the Company or any of its Subsidiaries is a party whereby the Company or any of its Subsidiaries has granted any Person any license under any material Owned Intellectual Property or whereby the Company or any of its Subsidiaries is granted a license to any material Intellectual Property (excluding (A) non-exclusive licenses granted by or to customers in the ordinary course of business, that involve expenditures(B) licenses to open source software, in cash or any other form of consideration(C) nondisclosure agreements, in excess of $1,000,000;
(ivD) except for the Loan Documentsinvention assignment agreements with current and former employees, the Franchise Agreementsconsultants, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval independent contractors of the Acquired Companies’ development projects;
Company and its Subsidiaries, (vE) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for employment agreements with any current or former officeremployee, director, trustee or employee;
and (viiF) any Contracts evidencing any employment agreements, severance, change licenses in control or termination agreements with any officer, director, trustee or employeerespect of commercially available off-the-shelf software);
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesAffiliate Agreements;
(ix) Contract for the employment or engagement of each current executive, officer, director or current employee of the Company or its Subsidiaries providing for (i) an annual base salary in excess of $300,000 and (ii) severance benefits or payments (excluding Contracts for at-will employment that are terminable without any Contracts relating liability to the Company or any currency hedging;of its Subsidiaries); and
(x) any Contracts containing “standstill” each employee collective bargaining agreement or similar provisions;Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any labor union, works council or other recognized body representing employees or other service providers of the Company or the Company’s Subsidiaries, on the other hand.
(xib) any Contracts All of the foregoing set forth on Section 5.12(a) of the Company Disclosure Letter, including all amendments and modifications thereto, are referred to as “Material Contracts”. The Company has furnished or otherwise made available to Acquiror true, complete and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Company and/or its Subsidiaries and the other parties thereto. Each Material Contract is valid, binding and in full force and effect (A) subject to which any Governmental Body the Enforceability Exceptions and assuming such Material Contract is a valid and legally binding obligation of the counterparty thereto). None of the Company, its Subsidiaries nor, to the knowledge of the Company, any other party thereto is in default or under which violation of any Governmental Body has Material Contract in any material respect. There is no event or condition that exists that constitutes or, with or without notice or the passage of time or both, would constitute any such default or violation by the Company, its Subsidiaries or, to the knowledge of the Company, any other party thereto, or give rise to any acceleration of any obligation or loss of rights or obligationsany right of termination of a Material Contract. Since January 1, 2020, neither the Company nor any of its Subsidiaries has received any notice or request, in each case, in writing, on behalf of any other party to a Material Contract to terminate, cancel or not renew such Material Contract, to significantly reduce the purchase, supply or availability of any products, services, capacity, equipment or goods provided by the Company and/or such other party under such Material Contract, or (B) directly or indirectly benefiting to renegotiate any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would notmaterial term thereof that would, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) a Material Adverse Effect, or alleging or disputing any Contract relating to the settlement material breach or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any default under such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 3 contracts
Sources: Merger Agreement (KORE Group Holdings, Inc.), Merger Agreement (KORE Group Holdings, Inc.), Merger Agreement (Cerberus Telecom Acquisition Corp.)
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and the Company made available contains a listing of all Contracts described in clauses (i) through (xviii) below to Parent prior to which, as of the date hereof copies of each this Agreement, a Company or any Subsidiary of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets they are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):bound.
(i) any Contracts with any director, manager or officer or Affiliate of the CompanyTop Vendors;
(ii) any Contracts evidencingEach note, governing debenture, other evidence of Indebtedness, guarantee, loan, credit or relating to Debt financing agreement or instrument or other Contract for money borrowed by the Company or any guarantee by of its Subsidiaries, including any Acquired Company of any other Person in excess of $750,000agreement or commitment for future loans, other than the Loan Documentscredit or financing;
(iii) Each Contract for the acquisition of any Contracts that reflect transactions, other than Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries in the ordinary course of businesslast two (2) years, that involve expendituresor under which the Company or Subsidiary has any continuing obligation with respect to an “earn-out”, in cash contingent purchase price or any other form of consideration, in excess of $1,000,000contingent or deferred payment;
(iv) except Each lease, rental or occupancy agreement, license, instalment and conditional sale agreement, and other Contract that provides for the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any Contracts that leasehold or other interest in any way purport to restrict the business activity real or personal property that involves aggregate payments in excess of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage $250,000 in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projectscalendar year;
(v) any Contracts that provide an obligation to fund Each Contract involving the formation of a (A) joint venture, (B) partnership, or make any investment in (whether C) limited liability company (excluding, in the form case of a loanclauses (B) and (C), capital contribution or otherwise) any wholly owned Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational DocumentCompany);
(vi) Each Contract that involves profit-sharing, which requires, or would reasonably be expected to require (based on any Contracts providing for any indemnification obligations occurrence, development, or event contemplated by such Contract), aggregate payments to or from the Company and its Subsidiaries in effect for any current or former officer, director, trustee or employeeexcess of $500,000 over the life of the Contract;
(vii) any Contracts evidencing any (other than employment agreements, severanceemployee confidentiality and invention assignment agreements, change in control equity or termination agreements with incentive equity documents and Governing Documents) between the Company and its Subsidiaries, on the one hand, and Affiliates of the Company or its Subsidiaries (other than the Company or any officerof its Subsidiaries), directorthe officers, trustee directors or employeemanagers (or equivalents) of the Company or the Company’s Subsidiaries, the members or stockholders of the Company or its Subsidiaries, any employee of the Company or its Subsidiaries or a member of the immediate family of the foregoing Persons, on the other hand (collectively, “Affiliate Agreements”);
(viii) any Contracts with each current executive, officer, director or current employee of the Company or its Subsidiaries with a title of Vice President or higher, other than offer letters, equity award agreements, and confidentiality and assignment agreements, in each case, that do not (Ai) relating differ materially from the form of such agreements provided to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities OmniLit or (Cii) providing any of the Acquired Companies with any right of first refusal with respect to, provide for severance or right to repurchase change in control payments or redeem, any securitiesbenefits;
(ix) Contracts with any Contracts relating to employee, officer, manager, director or consultant of the Company or its Subsidiaries that provide for (A) annual compensation that may exceed $250,000, (B) change in control, retention or similar payments or benefits upon, in connection with, accelerated by or triggered by the consummation of the transactions contemplated hereby, and/or (C) severance, termination or notice payments or benefits upon a termination of the applicable Person’s service with the Company or any currency hedgingSubsidiary of the Company (excluding payments and benefits mandated by applicable Law);
(x) Contracts of the Company or any Contracts containing “standstill” of its Subsidiaries that (A) prohibit or similar provisionslimit the right of the Company or any of its Subsidiaries to engage in or compete with any Person in any line of business in any material respect; (B) prohibit or restrict the Company and its Subsidiaries’ ability to conduct their business with any Person in any geographic area in any material respect; or (C) contain any other provisions restricting or purporting to restrict in any material respect the ability of the Company or any of its Subsidiaries to sell, manufacture, develop, commercialize, test or research products, directly or indirectly through third parties, or to solicit any potential employee or customer in any material respect or that would so limit or purports to limit, in any material respect, the OmniLit or any of its Affiliates after the Closing;
(xi) Any collective bargaining (or similar) agreement or Contract with any Contracts (A) to which labor union or other body representing employees of the Company or any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companiesits Subsidiaries;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions Each Contract (including transactions that have not been consummated)license agreements, in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing coexistence agreements, and credit card agreementsagreements with covenants not to sue, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnershipbut not including Contracts, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts purchase orders and insertion orders entered into in the ordinary course of business, non-disclosure agreements, contractor services agreements, consulting services agreements, incidental trademark licenses incident to marketing, printing or advertising Contracts) pursuant to which the Company or potential liability any Subsidiary of the Acquired Companies Company (i) grants to a third Person the right to use material Intellectual Property of the Company and its Subsidiaries or (ii) is granted by a third Person the right to use Intellectual Property that is material to the business of the Company and its Subsidiaries (other than (A) Contracts granting nonexclusive rights to use commercially available off-the-shelf software and any other similar software licenses (including software-as-a-service) that are commercially available on standard terms to the public, (B) Open Source Licenses, (C) non-exclusive licenses for content or assets used in the products, services, or in the conduct of the business of the Company or any of its Subsidiaries involving payments of less than $500,000 per year and (D) employee confidentiality and invention assignment agreements);
(xiii) Each Contract requiring capital expenditures by the Company or any of its Subsidiaries after the date of this Agreement in an amount in excess of $750,000 in any calendar year;
(xiv) Contracts that (A) grants to any third Person any material “most favored nation rights” or similar provisions, obligations or restrictions, or (B) grants to any third Person price guarantees for a period greater than one (1) year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of $750,000 in any calendar year;
(xv) Contracts with any Person (A) pursuant to which the Company or any Subsidiary of the Company (or OmniLit or any of its Affiliates after the Closing) may be required to pay material milestones, royalties or other contingent payments based on any research, testing, development, regulatory filings or approval, sale, distribution, commercial manufacture or other similar occurrences, developments, activities or events or (B) under which the Company or any Subsidiary of the Company grants to any Person any right of first refusal, right of first negotiation, option to purchase, option to license or any other similar rights with respect to any Company product or Intellectual Property;
(xvi) Contracts granting to any Person (other than the Company or its Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase price adjustment thator acquire equity interests in the Company or any of its Subsidiaries;
(xvii) Any Contract for the settlement or conciliation of an Action or Legal Proceeding or other dispute with a third party (A) the performance of which would involve any payments after the date of this Agreement, (B) with a Governmental Authority or (C) that imposes any material, non-monetary obligations on the Company or any of its Subsidiaries (or the Surviving Corporation after the Closing); and
(xviii) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xvii) of this Section 4.12(a).
(b) All of the foregoing Contracts listed or required to be listed pursuant to Section 4.12(a) in the Company Disclosure Letter, including all amendment and modifications thereto, are sometimes collectively referred to as “Material Contracts”. True, correct and complete copies of the Material Contracts have previously been delivered to or made available to OmniLit or its agents or representatives. Each Material Contract is (i) in full force and effect, 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) represents the legal, valid and binding obligations of the Company or the Subsidiary of the Company party thereto and, to the knowledge of the Company, represents the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to the Company and its Subsidiaries, taken as a whole, (x) the Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under the Material Contracts and none of the Company, the Company Subsidiaries, or, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract, (y) during the 12 months prior to the date of this Agreement, none of the Company or any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or any of its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 3 contracts
Sources: Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.), Merger Agreement (OmniLit Acquisition Corp.)
Contracts; No Defaults. (a) Section 4.13(aPart 3.16(a) of the Seller Parties Disclosure Letter lists Schedule contains a complete and accurate list as of the Company Effective Date, and Seller Parties have made available to Parent prior to Purchaser in the date hereof Data Room true and complete copies of, each Contract, other instrument or document (including of each of the following Contracts (and all any amendments, modifications and supplements thereto) to which any the Acquired Company is a party or by which any of their respective properties or its assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on subject or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):bound:
(i) any Contracts with any director, manager or officer or Affiliate of the Acquired Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan DocumentsIndebtedness;
(iii) any Contracts that reflect transactions, other than not entered into in the ordinary course Ordinary Course of business, Business that involve expenditures, in cash involves expenditures or any other form of consideration, in excess of $1,000,000receipts;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport purports to restrict the business activity of any the Acquired Company or any of their Affiliates, its Affiliates or to limit the freedom of any the Acquired Company or any of their its Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) relating to the employment of, or the performance of services by, any Contracts that provide an obligation employee or consultant, or pursuant to fund which the Acquired Company is or may become obligated to make any investment in (whether in the form of a loanseverance, capital contribution termination or otherwise) similar payment to any Subsidiary of any of current or former employee or director; or pursuant to which the Acquired Companies, Company is or other Person may become obligated to make any bonus or similar payment (other than payments constituting base salary) to any Organizational Document)current or former employee or director;
(vi) (A) relating to the acquisition, transfer, development, sharing or license of any Contracts providing Proprietary Rights (except for any indemnification obligations Contract pursuant to which (1) any Proprietary Rights is licensed to the Acquired Company under any third party software license generally available to the public, or (2) any Proprietary Rights is licensed by the Acquired Company to any Person on a non exclusive basis); or (B) of the type referred to in effect for any current or former officer, director, trustee or employeeSection 3.20(d);
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with providing for indemnification of any officer, director, trustee employee or employeeagent;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities securities, or (C) providing any of the Acquired Companies Company with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) incorporating or relating to any guaranty, any warranty or any indemnity or similar obligation, except for Contracts substantially identical to the standard forms of end user licenses made available by Seller Parties to Purchaser in the Data Room;
(x) relating to any currency hedging;
(xxi) (A) imposing any Contracts confidentiality obligation on the Acquired Company or any other Person, or (B) containing “standstill” or similar provisions;
(xixii) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments Body (including any subcontract or documents entered into by other Contract between the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually Company and any contractor or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information subcontractor to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionGovernmental Body);
(xiii) relating to collective bargaining contemplating or involving the payment or delivery of cash or other agreement consideration in an amount or understanding with having a labor union value in excess of €5,000 in the aggregate, or labor organization;contemplating or involving the performance of services having a value in excess of €5,000 in the aggregate; and
(xiv) any Contracts relating to the sale or exchange ofother Contract, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect if a breach of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would such Contract could reasonably be expected to result in future payments of more than $1,000,000;have a Material Adverse Effect.
(xxib) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(bi) Except as Each Material Contract is valid and in full force and effect, and is enforceable against the Acquired Company in accordance with its terms, subject to bankruptcy and other similar Legal Requirements of general applicability relating to or affecting creditors’ rights and to general equity principles.
(ii) The Acquired Company has not violated or breached, or committed any default under, any Material Contract, except for violations, breaches and defaults that have not had and would not, individually or in the aggregate, not reasonably be expected to have a Material Adverse Effect Effect; and, to Sellers’ Knowledge, no other Person has violated or breached, or committed any default under, any Material Contract, except for violations, breaches and defaults that have not had and would not reasonably be expected to have a Material Adverse Effect.
(iii) Except as set forth on Part 3.16(b) of the Acquired CompaniesSeller Parties Disclosure Schedule, to Sellers’ Knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to, (A) none result in a violation or breach of any of the provisions of any Material Contract, (B) give any Person the right to declare a default or exercise any remedy under any Material Contract, (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Material Contract, (D) give any Person the right to accelerate the maturity or performance under any Material Contract, (E) result in the disclosure, release or delivery of the Acquired Companies Company Source Code, or (F) give any Person the right to cancel, terminate or modify any Material Contract, except in each such case for defaults, acceleration rights, termination rights and other rights that have not had and would not reasonably be expected to have a Material Adverse Effect.
(iv) The Acquired Company has not received any written claim of default under notice or other communication regarding any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in actual or possible violation or breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (except in each casesuch case for defaults, with or without notice or lapse of time or both) and (iii) each Material Contract is validacceleration rights, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer termination rights and other similar laws of general applicability relating rights that have not had and would not reasonably be expected to or affecting creditors’ rights or by general equitable principleshave a Material Adverse Effect.
Appears in 3 contracts
Sources: Option Purchase Agreement (Nuvasive Inc), Option Purchase Agreement (Nuvasive Inc), Option Purchase Agreement (Nuvasive Inc)
Contracts; No Defaults. (a) Section 4.13(aSchedule 3.12(a) attached hereto contains a listing of all Contracts described in clauses (i) through (xv) below to which, as of the Disclosure Letter lists and the date of this Agreement, Company made available to Parent prior to the date hereof copies or any of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which Company or any of their respective properties or assets are its Subsidiaries is bound (notwithstanding anything hereincollectively, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):Contracts”).
(i) any Each Contract (other than (A) purchase orders with suppliers or customers entered into in the ordinary course of business and (B) Contracts with any director, manager or officer or Affiliate of the Companytype (without giving effect to dollar thresholds) described in other clauses of this Section 3.12(a)) that has or Seller reasonably anticipates will involve aggregate payments or consideration furnished by or to Company or any of its Subsidiaries of more than $1,000,000 in any calendar year;
(ii) any Contracts evidencing, governing or relating Each Contract related to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan DocumentsIndebtedness;
(iii) Each Contract for the acquisition of any Contracts that reflect transactions, Person or any business unit thereof or the disposition of any assets of Company or any of its Subsidiaries (other than in the ordinary course of business), that involve expenditures, other than Contracts in cash which the applicable acquisition or any other form of consideration, in excess of $1,000,000disposition has been consummated and there are no obligations ongoing;
(iv) except Each Contract that provides for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity (A) ownership of any Acquired Owned Real Property and (B) leasing of the Leased Real Property;
(v) Each joint venture agreement, partnership agreement, or other similar Contract;
(vi) Each Contract requiring capital expenditures after the date of this Agreement in an amount in excess of $100,000;
(vii) Each license agreement under which any Intellectual Property that is material to the conduct of the Business as conducted by Company and its Subsidiaries as of the date of this Agreement is licensed to or from Company or one of its Subsidiaries, (excluding license agreements for commercially available “off-the-shelf software,” “click wrap” or “shrink wrap” software license agreements, non-disclosure agreements and confidentiality and Intellectual Property assignment agreements with Company’s or any of its Subsidiaries’ employees);
(viii) Each Contract that restricts the Business, Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in its Subsidiaries from conducting any line of business or to compete with any Person or operating in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesarea;
(ix) any Contracts relating to any currency hedgingEach Contract that provides for a written commitment of consultation services for annual payments in excess of $100,000;
(x) Each Contract that provides any Contracts containing “standstill” restrictions on competition or similar provisionsrestrictions running in favor of Company or any of its Subsidiaries;
(xi) any Contracts (A) to which any Governmental Body is a party or Each Contract under which Company or any Governmental Body has of its Subsidiaries is subject to a “most favored nation”, “meet or release” or similar pricing and delivery arrangements or that have a “cost-savings” or any rights other similar performance or obligationsfinancial goals, or (B) directly involves the payment by Company or indirectly benefiting any Governmental Body, except for those instruments of its Subsidiaries of amounts that include “take or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually pay” or in the aggregate, have a Material Adverse Effect on the Acquired Companiessimilar pricing or delivery arrangements;
(xii) any Contracts requiring Each Contract that is between Company or any of its Subsidiaries, on the Acquired Companies give one hand, and Seller or any notice of its Affiliates (other than Company or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposalof its Subsidiaries), or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionon the other hand;
(xiii) relating Each Contract that provides for rebates to collective bargaining customers to be paid by Company or other agreement or understanding with a labor union or labor organizationany of its Subsidiaries (excluding early payment discounts less than 5%);
(xiv) Each Contract that grants any Contracts relating power of attorney or similar rights with respect to the sale affairs of Company or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;its Subsidiaries; and
(xv) Each Contract that guarantees the obligations of any other Person.
(b) Except as set forth on Schedule 3.12(b) attached hereto or as would not be material, (i) all of the Contracts relating listed pursuant to Section 3.12(a) (A) are in full force and effect and (B) represent the legal, valid and binding obligations of Company or its Subsidiary party thereto, (ii) neither Company or any of its Subsidiaries nor, to the development or construction of, or additions or expansions toKnowledge of Company, any real property that would involve the expenditure by other party thereto is in breach of or default under any such Contract, (iii) neither Company nor any of the Acquired Companies in excess its Subsidiaries has received since September 1, 2010 any written claim or notice of $1,000,000;
any breach of or default under any such Contract that has not been cured and (xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwiseiv), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations Knowledge of the PropertiesCompany, no event has occurred, which individually or together with other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each caseevents, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance ). Seller or Company has provided Acquiror with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws a copy of general applicability relating to or affecting creditors’ rights or by general equitable principlesall Contracts set forth on Schedule 3.12(a).
Appears in 3 contracts
Sources: Stock Purchase Agreement (Pinafore Holdings B.V.), Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Contracts; No Defaults. (aSchedule 3(w) Section 4.13(a) of the Disclosure Letter lists attached hereto contains a complete and accurate list, and the Company has made available to Parent prior to the date hereof copies Purchaser true and complete copies, of:
1. each Applicable Contract (as defined below) that involves performance of each services or delivery of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party goods or by which any materials of their respective properties an amount or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person value in excess of $750,000, other than the Loan Documents25,000;
(iii) any Contracts 2. each Applicable Contract that reflect transactions, other than was not entered into in the ordinary course of business, business or is not cancelable by the Company or a subsidiary of the Company with no penalty upon advance notice of 30 days or less and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, the Company or its subsidiaries in excess of $1,000,0005,000;
(iv) except for 3. each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $5,000 and with terms of less than one year);
4. each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company or any of its subsidiaries with any other person or entity;
5. each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired of the Company and its subsidiaries or any affiliate of their Affiliates, the foregoing or to limit the freedom of any Acquired of the Company and its subsidiaries or any affiliate of their Affiliates the foregoing to engage in any line of business or to compete with any Person person or in any geographic area entity;
6. each employment or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval consulting agreement of the Acquired Companies’ development projectsCompany and its subsidiaries;
(v) 7. each Applicable Contract providing for payments to or by any Contracts that provide an obligation to fund person or make any investment in (whether in the form entity based on sales, purchases, or profits, other than direct payments for goods;
8. each power of a loan, capital contribution or otherwise) any Subsidiary of attorney executed by any of the Acquired Companies, or other Person (Company and its subsidiaries that is currently effective and outstanding;
9. each Applicable Contract entered into other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually business that contains or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure provides for an express undertaking by any of the Acquired Companies in excess of $1,000,000Company and its subsidiaries to be responsible for consequential damages;
(xvi) any Loan Documents;
(xvii) any Contracts 10. each Applicable Contract for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location25,000;
(xix) any partnership11. each written warranty, limited liability company agreementguaranty, joint venture or and other similar agreement or arrangement relating undertaking with respect to the formation, creation, operation, management or control of contractual performance extended by any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts Company and its subsidiaries other than in connection with the Franchise Agreementsordinary course of business; and
12. each amendment, supplement, and modification (whether oral or written) in respect of any of the Management Agreement Documents foregoing. As used in this Agreement, "Contract" means any agreement, contract, obligation, promise, or the Loan Documents undertaking (whether written or oral and whether express or implied) that is legally binding; "Applicable Contract" means any Contract (a) under which any of the Acquired Companies Company or its subsidiaries has continuing indemnification obligations or may acquire any rights, (b) under which any of the Company or its subsidiaries has or may become subject to any obligation or liability, or (c) by which any of the Company or its subsidiaries or any of the assets owned or used by it is or may become bound. Except as set forth in Schedule 3(w) attached hereto, (i) each of the Company and its subsidiaries is, and has been, in material compliance with all applicable terms and requirements of each Contract under which such company has or had any obligation or liability or by which such company or any of the assets owned or used by such company is or was bound; (ii) each other than person or entity that has or had any obligation or liability under any Contract under which any of the Company and its subsidiaries has or had any rights is, and has been, in material compliance with all applicable terms and requirements of such Contract; (iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a material violation or breach of, or give any of the Company and its subsidiaries or other person or entity the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and (iv) none of the Company and its subsidiaries has given to or received from any other person or entity any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract. Each Applicable Contract is valid, in full force, and binding on and enforceable against the other party or parties to such contract in accordance with its terms and provisions. Except as disclosed on Schedule 3(w) attached hereto, there are no renegotiation of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any of the Company and its subsidiaries under current or completed Contracts with any person or entity and, to the Knowledge of the Company, no such person or entity has made written demand for such renegotiation. The Contracts relating to the sale, design, or provision of products or services by the Company or any of its subsidiaries have been entered into in the ordinary course of business) business and have been entered into without the commission of any act alone or potential liability of the Acquired Companies under in concert with any purchase price adjustment thatother person or entity, or any consideration having been paid or promised, that is or would be in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement violation of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material ContractRequirement.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Tangible Asset Galleries Inc), Securities Purchase Agreement (Tangible Asset Galleries Inc)
Contracts; No Defaults. (a) Section 4.13(aSchedule 3.12 attached hereto contains a listing of all Contracts described in clauses (i) through (xi) below to which, as of the Disclosure Letter lists date of this Agreement, any Company is a party, true, correct and the Company complete copies of which have been previously made available to Parent prior to the date hereof copies of each of the following Contracts (Acquiror, including all amendments and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):.
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person Each Contract (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts orders entered into in the ordinary course of businessbusiness and (y) or potential liability Contracts of the Acquired Companies type (without giving effect to dollar thresholds) described in other clauses of this Section 3.12(a)) that Sellers reasonably anticipate will involve aggregate payments or consideration furnished by or to any Company of more than $1,000,000 in any calendar year;
(ii) Each note, debenture, other evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract for money borrowed or other Indebtedness, or security agreement or other Contract relating to the mortgaging, pledging or otherwise granting of a Lien (including pursuant to any credit support or similar obligation), including any agreement or commitment for future loans, credit or financing or Liens, in each case other than obligations under capital lease agreements of less than $250,000;
(iii) Each Contract for the acquisition of any purchase price adjustment thatPerson or any business unit thereof or the disposition of any material assets of any Company (other than sales of inventory in the ordinary course of business), in each case, involving payments in excess of $1,000,000, other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;
(iv) Each lease, rental or occupancy agreement, license, installment or conditional sale agreement or other Contract that (x) provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any personal property and (y) involves aggregate payments in excess of $1,000,000 in any calendar year;
(v) Each joint venture agreement, partnership agreement or limited liability company agreement;
(vi) Each Contract requiring capital expenditures after the date of this Agreement in an amount in excess of $1,000,000 in any calendar year;
(vii) Each Contract expressly prohibiting or restricting in any material respect the ability of any Company to engage in any business, to operate in any geographical area or to compete with any Person;
(viii) Each material license agreement under which the Company is a licensor or licensee of any material Intellectual Property (excluding licenses in respect of commercially available “off-the-shelf software”);
(ix) Each Contract under which it has advanced or loaned monies to any other Person or otherwise agreed to advance, loan or invest any funds (other than advances to the Companies’ employees in the ordinary course of business), in each case other than obligations under capital lease agreements of less than $250,000;
(x) Each Contract that is a collective bargaining agreement or any other agreement with any labor organization; and
(xi) Any Contract that is a settlement, conciliation or similar agreement with any Governmental Authority or pursuant to which, after the date of this Agreement, any Company would reasonably be expected to be required to make payments in excess of $1,000,000 in the aggregate.
(b) Except as set forth on Schedule 3.12(b) attached hereto, all of the Contracts listed or required to be listed pursuant to Section 3.12(a) (collectively, “Material Contracts”) (i) are in full force and effect (subject to expiring in accordance with their terms) and (ii) represent the legal, valid and binding obligations of and are enforceable against the Company party thereto and, to the knowledge of Sellers, represent the legal, valid and binding obligations of and are enforceable against the other parties thereto, in accordance with their respective terms, 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. Except as set forth on Schedule 3.12(b) attached hereto, (x) none of the Companies nor, to the knowledge of Sellers, any other party thereto is in material breach of or material default under, or has failed to perform any material obligations required to be performed by it under, any Material Contract, (y) as of the date hereof, no Company has received any written claim or notice of material breach of or material default under any Material Contract, and (z) to the knowledge of Sellers, no event has occurred, which individually or together with other events, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to a material breach of, a material default under or permit the settlement termination, modification or proposed settlement acceleration of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, obligation under, any Material Contract (in each case, with or without notice or lapse of time or both).
(c) The Business (as presently conducted and (iiias presently proposed to be conducted) each Material does not violate, conflict with or breach the non-compete and similar provisions of any Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesset forth on Schedule 3.12(c) attached hereto.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Contracts; No Defaults. (a) Section 4.13(a4.11(a) of the Sellers Disclosure Letter lists and the Company made available Schedule contains a listing of all Contracts (or group of related Contracts) described in clauses (i) through (xvi) below to Parent prior to which, as of the date hereof copies of each this Agreement, either of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Target Companies is a party or party, by which any of their respective properties or assets are bound or pursuant to which either Target Company is an obligor or a beneficiary, other than the Company Benefit Plans and Target Benefit Plans listed in Sections 4.12(a) or 4.12(b) of the Sellers Disclosure Schedule (notwithstanding anything hereinsuch listed Contracts, the “Material Contracts”). True, correct and complete copies (as amended to date) (in the case of each written Contract” shall not include any Contract that ) or an accurate and complete written summary (1in the case of each oral Contract) will be fully performed and satisfied on or prior of the Material Contracts have been previously made available to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):Purchaser.
(i) any Contracts Contract or plan with any directorTarget Business Employee, manager including any stock option plan, stock appreciation rights plan or officer stock purchase plan, or Affiliate any plan providing similar equity awards, for which any benefits payable by any Target Entity will be increased, or for which the vesting of benefits will be accelerated, by the occurrence of any of the Companytransactions contemplated by this Agreement (or any events following the Closing Date, contingent or otherwise), or for which the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(ii) any Contracts evidencing, governing fidelity or relating to Debt surety bond or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documentscompletion bond;
(iii) any Contracts that reflect transactions, other than in Contract for the ordinary course lease of business, that involve expenditures, in cash real or any other form of consideration, personal property having base rental payments in excess of $1,000,00050,000 per year individually;
(iv) except any Contract of indemnification or guaranty (not including for clarity, customer Contracts);
(v) any Contract or commitment other than real property leases relating to capital expenditures involving future payments in excess of $100,000 individually or $250,000 in the aggregate;
(vi) any mortgages, bonds, notes, indentures, guarantees, loans or credit agreements, security agreements or other Contracts or instruments relating to the borrowing of money or extension of credit or other material Indebtedness, other than (A) accounts receivables and payables and (B) advances to employees for travel and business expenses, in each case in the Ordinary Course of Business;
(vii) any purchase order or Contract for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, purchase of materials involving in excess of $50,000 individually;
(viii) any Contracts that contain “most favored nation” or similar pricing provisions pursuant to which a party thereto has the right to reduce pricing terms due to pricing terms offered to other customers;
(ix) any material distributor, dealer, sales representative, original equipment manufacturer, value added, remarketer, reseller, independent software vendor, joint marketing, strategic alliance, affiliate or other Contract for distribution of the Target Company Products;
(x) any Contract or commitment to alter either of the Target Companies’ interest in any way purport to restrict the business activity Subsidiary of any Acquired Company such Target Company, or any corporation, association, joint venture, partnership or business entity in which the Target Companies directly or indirectly holds any interest;
(xi) any Contract or commitment (other than Contracts of their Affiliates, the type described in other clauses of this Section 4.11(a)) that provides for the payment by or to limit the Company in an amount in excess of $100,000 in the aggregate or more and is not cancelable without penalty within 60 days;
(xii) any Contract materially limiting the freedom of any Acquired Company or any of their Affiliates the Target Companies to engage in any line of business or to compete with any Person or in any geographic area or to hire develop or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation distribute or to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionsell;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organizationany license for the use of Intellectual Property, except for licenses for COTS;
(xiv) any Contracts covenant not to ▇▇▇, settlement agreement or other similar Contract relating to any of the sale Intellectual Property or exchange of, Technology of any of the Target Companies or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;Target Company Subsidiaries; or
(xv) any Contract granting a Lien other than a Permitted Lien.
(b) Except as set forth in Section 4.11(b) of the Sellers Disclosure Schedule, all of the Material Contracts relating (i) are in full force and effect, (ii) represent the legal, valid and binding obligations of a Target Company or a Subsidiary of a Target Company, and (iii) to the development knowledge of Sellers, are enforceable by a Target Company or construction ofa Subsidiary of a Target Company in accordance with their terms, or additions or expansions tosubject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject to general principles of equity. Except as set forth in Section 4.11(b) of the Sellers Disclosure Schedule, (A) neither the Target Companies nor any of their Subsidiaries nor, to the knowledge of Sellers, any real property that would involve other party thereto is in material breach of or default under any provision of any Material Contract, (B) neither the expenditure by Target Companies nor any of the Acquired Companies in excess their Subsidiaries have received any written claim or notice of $1,000,000;
material breach of or default under any Material Contract, (xviC) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations knowledge of the PropertiesSellers, no event has occurred which individually or together with other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each caseevents, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, under any Material Contract (in each case, with or without notice or lapse of time or both) by either Target Company or, to the knowledge of Sellers, by any such other party, or give rise to any right of revocation, withdrawal, suspension, acceleration, cancellation, termination, modification, imposition of additional obligations or loss of rights under, result in any payment becoming due under, result in imposition of any Lien other than a Permitted Lien on any of Units or any of the properties or assets of either Target Company or a Subsidiary of a Target Company under, or otherwise give rise to any material right on the part of any Person to exercise any remedy or obtain any relief under such Contract (in each case, with or without notice or lapse of time or both), and (D) none of Sellers or the Target Companies has given or received any claim, notice or other communication alleging any of the above. No Material Contract is under negotiation (nor has written demand for any renegotiation been made) and no party has repudiated any portion of any such Material Contract.
(c) To the knowledge of Sellers, no director, agent, employee or consultant or other independent contractor of either Target Company is a party to, or is otherwise bound by, any Contract, including any confidentiality, noncompetition or proprietary rights agreement, with any other Person that in any way adversely affects or will affect (i) the performance of his or her duties for the Target Companies, (ii) his or her ability to assign to any Target Company or a Subsidiary of a Target Company rights to any invention, improvement, discovery or information relating to the businesses of the Target Companies or (iii) each Material Contract is valid, binding and enforceable in accordance with the ability of either Target Company to conduct its terms and is in full force and effect with respect business as currently conducted or as currently proposed to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesconducted.
Appears in 2 contracts
Sources: Purchase Agreement (Limelight Networks, Inc.), Purchase Agreement (DG FastChannel, Inc)
Contracts; No Defaults. (a) Section 4.13(aPart 2.16(a) of the Company Disclosure Letter Schedule lists and as of the date hereof, and, except to the extent filed in full without redaction as an exhibit to a Filed Company SEC Report, the Company has made available to Parent prior to the date hereof copies of each Acquired Corporation Contract and other instrument or document (including any amendment to any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Documentforegoing):
(i) any Contracts described in paragraphs (b)(3), (b)(4), (b)(9) or (b)(10) of Item 601 of Regulation S-K of the SEC;
(ii) with any director, manager or executive officer or Affiliate of the Company;
(iiiii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person indebtedness for borrowed money in excess of $750,000, other than the Loan Documents;500,000,
(iiiiv) any Contracts that reflect transactions, other than not entered into in the ordinary course Ordinary Course of business, Business that involve expenditures, in cash involves expenditures or any other form of consideration, receipts in excess of $1,000,000;
(ivv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or purports to limit the freedom of any Acquired Company Corporation or any of their Affiliates affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employeethat is a Benefit Plan;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with providing for indemnification of any officer, director, trustee director or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securitiessecurities other than under the Company Stock Plans or ESPP, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities securities, or (C) providing any of the Acquired Companies Corporations with any right of first refusal with respect to, or right to repurchase or redeem, any securities, except for Contracts evidencing Company Options. Company RSU Awards or employment Contracts entered into in the Ordinary Course of Business which contemplate the issuance of Company Options or Company RSU Awards;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies Corporations give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiiix) that is a contract with any Contract (other than Contracts referenced of the 10 largest customers or the 10 largest suppliers of the Acquired Corporations, taken as a whole, as determined on a consolidated basis by dollar volume of sales to such customers or purchases from such suppliers, respectively, in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000each case during the nine months ended September 29, 2007. Each of the foregoing is a “Material Contract.”
(b) Except as would notEach Material Contract is valid and in full force and effect.
(c) (i) None of the Acquired Corporations has violated or breached, or committed any default under, any Acquired Corporation Contract, except for violations, breaches and defaults that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired CompaniesCorporations, taken as a whole; and, to the Knowledge of the Company, no other Person has violated or breached, or committed any default under, any Acquired Corporation Contract, except for violations, breaches and defaults that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired Corporations, taken as a whole; (ii) to the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Acquired Corporation Contract, (B) give any Person the right to declare a default or exercise any remedy under any Acquired Corporation Contract, (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Acquired Corporation Contract, (D) give any Person the right to accelerate the maturity or performance of any Acquired Corporation Contract, (E) result in the disclosure, release or delivery of any Acquired Corporation Source Code, or (F) give any Person the right to cancel, terminate or modify any Acquired Corporation Contract, except in each such case for defaults, acceleration rights, termination rights and other rights that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired Corporations, taken as a whole; and (iii) since September 29, 2007, none of the Acquired Companies Corporations has received any written claim of default under notice or other communication regarding any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in actual or possible violation or breach or violation of, or default under, any Material Acquired Corporation Contract, (ii) no event has occurred which except in each such case for defaults, acceleration rights, termination rights and other rights that have not had and would result in not reasonably be expected to have a breach or violation of, or a default by Material Adverse Effect on the Acquired CompaniesCorporations, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except taken as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesa whole.
Appears in 2 contracts
Sources: Merger Agreement (Amis Holdings Inc), Merger Agreement (On Semiconductor Corp)
Contracts; No Defaults. (a) Section 4.13(a) of the Disclosure Letter lists Schedule 5.19 contains a complete and accurate list, and KKR and the Company made KKR Subsidiaries shall at FRI's request deliver to FRI or make available to Parent prior to the date hereof copies of each of the following Contracts (for FRI's review true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Applicable Agreement that involves performance of services or officer delivery of goods or Affiliate materials by or to one or more of KKR and the Company;KKR Subsidiaries of an amount or value in excess of $150,000.
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts each Applicable Agreement that reflect transactions, other than was not entered into in the ordinary course of business, business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, one or more KKR and the KKR Subsidiaries in excess of $1,000,00075,000.
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Agreement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with terms of less than one year);
(iv) except for each licensing agreement or other Applicable Agreement with respect to Intellectual Property;
(v) each collective bargaining agreement and other Applicable Agreement to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Applicable Agreement involving a sharing of profits, losses, costs, or liabilities by any of KKR and the Loan Documents, the Franchise Agreements, the Management KKR Subsidiaries with any other Person;
(vii) each Applicable Agreement Documents and Organization Documents, any Contracts containing covenants that in any way purport to restrict the business activity of any Acquired Company KKR or any of their Affiliatesthe KKR Subsidiaries or any Affiliate of KKR or any of the KKR Subsidiaries, (other than directors or to officers of KKR) or limit the freedom of any Acquired Company KKR or any of their Affiliates the KKR Subsidiaries or any Affiliate of KKR or any of the KKR Subsidiaries (other than directors or officers of KKR) to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to each power of attorney that is currently effective and outstanding, other than powers of attorneys normally executed in connection with the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesKKR SEC Documents;
(ix) any Contracts relating to any currency hedgingeach Applicable Agreement for capital expenditures in excess of $50,000;
(x) any Contracts containing “standstill” or similar provisions;each other Applicable Agreement material to KKR and the KKR Subsidiaries, taken as a whole, which has not otherwise been set forth on Schedules 5.1 through 5.20; and
(xi) any Contracts each enforceable amendment, supplement, and modification (Awhether oral or written) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course respect of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would notset forth in Schedule 5.19(b), individually or each Applicable Agreement referred to in Section 5.19(a) is in full force and effect and is valid and enforceable in accordance with its terms.
(c) Except as set forth in Schedule 5.19(c):
(i) each of KKR and the aggregateKKR Subsidiaries and, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no KKR, each other party thereto is in breach or violation of, or default under, any Material Contract, compliance in all material respects with all applicable terms and requirements of each Applicable Agreement referred to in Section 5.19(a); and
(ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract circumstance exists that (in each case, with or without notice or lapse of time time) may contravene, conflict with, or both) result in a violation or breach of, or give any of KKR and (iii) each Material Contract is validthe KKR Subsidiaries or other Person the right to declare a default or exercise any remedy under, binding and enforceable or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Agreement referred to in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesSection 5.19(a).
Appears in 2 contracts
Sources: Merger Agreement (Koo Koo Roo Inc/De), Merger Agreement (Family Restaurants)
Contracts; No Defaults. (a) Section 4.13(aExcept for any Contract set forth in Part 3.6(a), Part 3.6(b) or Part 3.20(b) of the Disclosure Letter, Part 3.15(a) of the Disclosure Letter lists contains a complete and accurate list, and the Company Sellers have delivered or caused to have been delivered or made available to Parent prior to the date hereof Buyer true and complete copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by or to the Company or any of its Subsidiaries of an amount or value in excess of $100,000, excluding Applicable Contracts with for the sales of goods by the Company or any director, manager or officer or Affiliate of its Subsidiaries in the CompanyOrdinary Course of Business;
(ii) any Contracts evidencing, governing each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or relating to Debt receipts of the Company or any guarantee by any Acquired Company of any other Person its Subsidiaries in excess of $750,000, other than the Loan Documents100,000;
(iii) any Contracts that reflect transactions, other than in each lease or sale or purchase agreement for real property to which the ordinary course of business, that involve expenditures, in cash Company or any other form of consideration, in excess of $1,000,000its Subsidiaries is a party;
(iv) except for each collective bargaining agreement and other Applicable Contract between the Loan DocumentsCompany or any of its Subsidiaries and any labor union or other employee representative of a group of employees;
(v) each joint venture, partnership and other Applicable Contract (however named) involving a sharing of profits, losses, costs or liabilities by the Franchise Agreements, the Management Agreement Documents and Organization Documents, Company or any Contracts of its Subsidiaries with any other Person;
(vi) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any of their Affiliates, its Subsidiaries or to limit the freedom of any Acquired the Company or any of their Affiliates its Subsidiaries to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) each power of attorney granted by or to the Company or any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employeeof its Subsidiaries that is currently effective and outstanding;
(viii) any Contracts (A) relating each Applicable Contract that is void or subject to termination at the acquisition, issuance, voting, registration, sale or transfer option of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesa third party upon a change in control;
(ix) any Contracts relating to any currency hedgingeach Applicable Contract for capital expenditures in excess of $100,000;
(x) each Applicable Contract relating to outstanding Indebtedness (other than Intercompany Indebtedness) of Holdings, the Company or any Contracts containing “standstill” or similar provisions;of Company’s Subsidiaries; and
(xi) any Contracts (A) each commitment to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered enter into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced foregoing described in clauses (i) through (xxii) of this Section 4.13(ax)) which by its terms calls , except for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractcommitments that are Applicable Contracts.”
(b) Except as would notset forth in Part 3.15(b) of the Disclosure Letter, individually to Sellers’, Holdings’ and the Company’s Knowledge, no officer, agent or in employee of the aggregateCompany or any of Company’s Subsidiaries is bound by any Contract that purports to limit the ability of such officer, have a Material Adverse Effect on the Acquired Companies, agent or employee to (A) none engage in or continue any conduct, activity or practice relating to the business of the Acquired Companies has received any written claim of default under any such Material Contract and Company or its Subsidiaries, or (B) assign to the knowledge Company or to any other Person any rights to any invention, improvement or discovery.
(c) Except as set forth in Part 3.15(c) of the Disclosure Letter, each Contract of the Company Parties: (iand Company’s Subsidiaries identified in Part 3.15(a) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and Disclosure Letter is in full force and effect and none of the Company or any of its Subsidiaries has received any written notice that any party to any such Contract intends to cancel, terminate or fail to renew such Contract.
(d) Except as set forth in Part 3.15(d) of the Disclosure Schedule and except for this Agreement, any Contract entered into in accordance herewith and any Contract entered into in connection with respect the Continued Indebtedness or the Debt to the Acquired Companiesbe Repaid, and Holdings is not a party to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesany Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (CPM Holdings, Inc.), Stock Purchase Agreement (CPM Holdings, Inc.)
Contracts; No Defaults. (a) Except for the Leases and Company Benefit Plans set forth on Section 4.13(a5.13(a) of the Company Disclosure Letter, Section 5.12(a) of the Company Disclosure Letter lists sets forth a complete and accurate list of all of the following Contracts to which, as of the date of this Agreement, the Company made available and/or any of its Subsidiaries is a party or is otherwise bound:
(i) Contracts with any Material Supplier;
(ii) each Contract that (A) requires aggregate future payments to Parent the Company and its Subsidiaries in excess of $1,000,000 in any calendar year and is not terminable by the counterparty with more than one hundred and twenty (120) days’ notice, and (B) grants to any Person (other than the Company or its Subsidiaries) (1) any “most favored nation” provisions or other price guarantees for a period greater than one (1) year with respect to such payments described in clause (A), or (2) material non-competition, non-solicitation or no-hire provisions imposed on the Company or its Subsidiaries;
(iii) (x) Contracts entered into during the one (1) year period prior to the date hereof copies with respect to mergers, acquisitions or sales of any Person or material business unit thereof by the Company or any of its Subsidiaries other than such Contracts solely between the Company and its wholly owned Subsidiaries (each of the following an “M&A Contract”), or (y) M&A Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party whether or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that entered into during the one (1) will be fully performed and satisfied on or year period prior to the Closingdate hereof) pursuant to which the Company or any of its Subsidiaries have any ongoing material obligations or liabilities, including deferred purchase price payments, earn-out payments or indemnification obligations;
(2iv) is a Ground Lease Contracts establishing or relating to (x) partnerships or (3y) is an Organizational Document):
joint ventures, in each case, that are material to the Company and its Subsidiaries, taken as a whole (i) excluding, in the case of clause (x), any Contracts with any director, manager or officer or Affiliate wholly owned Subsidiaries of the Company);
(iiv) any Contracts evidencing, governing each Contract with Governmental Authorities requiring aggregate future payments by or relating to Debt or any guarantee by any Acquired the Company of any other Person and its Subsidiaries in excess of $750,000, other than the Loan Documents1,000,000 in any calendar year;
(iiivi) Contracts for indebtedness for borrowed money or any guarantee thereof, including any mortgage, indenture, note, installment obligation or other instrument or agreement related thereto, except any such Contract (A) with an aggregate outstanding principal amount not exceeding $1,000,000 or (B) solely between or among the Company and its wholly owned Subsidiaries;
(vii) Contracts that reflect transactionsrelate to the settlement or final disposition of any Action pursuant to which the Company or any of its Subsidiaries has material ongoing obligations or liabilities;
(viii) each material Contract to which the Company or any of its Subsidiaries is a party whereby the Company or any of its Subsidiaries has granted any Person any license under or rights in or to use any material Owned Intellectual Property or whereby the Company or any of its Subsidiaries is granted a license to or rights in or to use any material Intellectual Property (excluding, other than solely for purposes of the second and third sentences of Section 5.12(b), (A) non-exclusive licenses granted by or to customers in the ordinary course of business, that involve expenditures(B) licenses to open source software, in cash or any other form of consideration(C) nondisclosure agreements, in excess of $1,000,000;
(ivD) except for the Loan Documentsinvention assignment agreements with current and former employees, the Franchise Agreementsconsultants, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval independent contractors of the Acquired Companies’ development projects;
Company and its Subsidiaries, (vE) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for employment agreements with any current or former officeremployee, director, trustee or employee;
(viiF) any Contracts evidencing any employment agreements, severance, change licenses in control or termination agreements with any officer, director, trustee or employee;
respect of commercially available off-the-shelf software and (viiiG) any Contracts (A) relating non-exclusive licenses that are merely incidental to the acquisitiontransaction contemplated in such license, issuance, voting, registration, sale including: (i) a sales or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect marketing Contract that includes an incidental license to any securities or (C) providing any use the trademarks of the Acquired Companies Company for the purposes of advertising and selling the Company services during the term of and in accordance with any right of first refusal with respect tosuch Contract; and (ii) a Contract to purchase or lease equipment, such as a photocopier, computer, or right to repurchase or redeem, any securitiesmobile phone that also contains a license of Intellectual Property);
(ix) any each Affiliate Agreement, excluding those that are employee confidentiality and invention assignment agreements, equity or incentive equity documents, Governing Documents, employment agreements, Contracts relating set forth under Section 5.12(a)(x) or Section 5.13(a) of the Company Disclosure Letter and offer letters for at-will employment set forth on Section 5.13(a) of the Company Disclosure Letter (provided, that each such excluded Affiliate Agreement has been made available to any currency hedgingAcquiror);
(x) employment, severance, consulting, and similar Contracts with each current executive, officer, director or current employee of the Company or its Subsidiaries providing for an annual base salary in excess of $250,000 (excluding Contracts for at-will employment that are terminable without any Contracts containing “standstill” liability to the Company or similar provisionsany of its Subsidiaries);
(xi) each Government Contract; and
(xii) each employee collective bargaining agreement or similar Contract between the Company or any of the Company’s Subsidiaries, on the one hand, and any labor union or other body representing employees of the Company or any of the Company’s Subsidiaries, on the other hand.
(b) All of the foregoing Contracts set forth or required to be set forth on Section 5.12(a) of the Company Disclosure Letter, including all amendments, supplements and modifications thereto, are collectively referred to as “Material Contracts”. The Company has furnished or otherwise made available to Acquiror true, complete and correct copies of all Material Contracts. Each Material Contract sets forth the entire agreement and understanding between the Company and/or its Subsidiaries and the other parties thereto. Each Material Contract is legal, valid, binding and in full force and effect (A) subject only to which any Governmental Body the Enforceability Exceptions and assuming such Material Contract is a valid and legally binding obligation of the counterparty thereto). None of the Company, its Subsidiaries nor, to the knowledge of the Company, any other party thereto is in default or under which violation of any Governmental Body has Material Contract in any material respect. There is no event or condition that exists that constitutes or, with or without notice or the passage of time or both, would constitute any such default or violation in any material respect by the Company, its Subsidiaries or, to the knowledge of the Company, any other party thereto, or give rise to any acceleration of any obligation or loss of rights or obligationsany right of termination of a Material Contract. Since January 1, 2020, neither the Company nor any of its Subsidiaries has received any notice or request, in each case, in writing, from or on behalf of any other party to a Material Contract to terminate, cancel or not renew such Material Contract, or (B) directly or indirectly benefiting to renegotiate any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which material term thereof that would notreasonably be expected to have, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposalEffect, or prior to entering into alleging or disputing any discussions, agreement, arrangement breach or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents default under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 2 contracts
Sources: Merger Agreement (Supernova Partners Acquisition Co II, Ltd.), Merger Agreement (Supernova Partners Acquisition Co II, Ltd.)
Contracts; No Defaults. (ai) Section 4.13(aSchedule 6(m) of the Disclosure Letter lists Schedule contains an accurate list, and the Company made available has delivered to Parent prior to the date hereof Purchaser accurate and complete copies of of, each of the following Contracts contracts, agreements, instruments, leases, subleases, licenses, deeds, mortgages, purchase orders, commitments, arrangements or undertakings, written or oral (and all amendments“Contracts”), modifications and supplements thereto) to which any Acquired or by the Company is a party or by which any of their respective properties or assets are otherwise bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior relates to the Closing, (2) is a Ground Lease assets or (3) is an Organizational Document):operation of the Business:
(iA) each Contract relating to the acquisition or divestiture of equity securities, assets or business of any person or entity;
(B) each Contract for the employment of any officer, individual employee or other person on a full-time or consulting basis (other than Contracts with for at will employment that are not in writing);
(C) each agreement, promissory note, indenture, mortgage or security agreement relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien or other Encumbrance on any director, manager or officer or Affiliate portion of the assets of the Company;
(iiD) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company each guaranty of any other Person in excess of $750,000, other than the Loan Documentsobligation for borrowed money;
(iiiE) each lease or agreement under which the Company is lessee of, or holds or operates any Contracts that reflect transactions, personal property owned by any other person or entity other than general office equipment or other immaterial personal property used in the Business;
(F) each lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal;
(G) each Contract for the purchase of products or services other than purchase orders executed in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(ivH) except each Contract for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity sale of any Acquired Company products or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (services other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into orders executed in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxiI) any Contract relating each agency, distributor, sales representative, franchise or similar agreement to which the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having Company is a value of more than $1,000,000party;
(xxiiJ) other than each Contract between the Franchise Agreements Company and Management Agreement Documentsany of its shareholders, any licensedirectors, royalty or other Contract concerning material Intellectual Property; andofficers, employees and affiliates;
(xxiiiK) any each Contract which expressly prohibits the Company from freely engaging in business anywhere in the world; or
(other than Contracts referenced in clauses (iL) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each each Contract entered into outside of the foregoing is a “Material Contractordinary course of business, consistent with past practices.”
(bii) Except as would not, individually or in the aggregate, have a Material Adverse Effect set forth on the Acquired Companies, Schedule 6(m):
(A) none each Contract is a valid, binding and enforceable agreement against the Company and, to Sellers’ knowledge, the other parties thereto in accordance with their terms (subject to bankruptcy, reorganization, receivership and other laws affecting creditors’ rights generally and general principles of equity);
(B) no consent, authorization or approval is required under any Contract in connection with the consummation of the Acquired Companies transactions contemplated by this Agreement;
(C) the Company is not in material breach of or in material default under the terms of any Contract;
(D) to Sellers’ knowledge, no condition exists or event has received any written claim occurred that with or without notice or the passage of time or both, would constitute a material breach of or a material default under any such Material Contract and by the Company;
(BE) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and Sellers’ knowledge, no other party to any such Contract has breached any material provision or is in material default under any Contract
(F) the Company has not given or received, at any time since December 31, 2010, any notice or other communication (whether written or oral) regarding any actual, alleged or potential violation or breach or violation of, or default under, any Material Contractof the Contracts; and
(G) there are no pending renegotiations of any of the Contracts and the Company has not received written notice from, (ii) and the Company has no event has occurred which would result in knowledge that a breach party to any Contract intends to, terminate, cancel or violation materially change the terms of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and such Contract.
(iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired CompaniesExcept as set forth on Schedule 6(d) or Schedule 6(m), and to any Contracts between the other parties theretoCompany, except as enforceability may Company Subsidiaries and any Sellers or B’Prod SARL, the continuation, validity and effectiveness of each material Contract will not be limited affected by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws the consummation of general applicability relating to or affecting creditors’ rights or the transactions contemplated by general equitable principlesthis Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Innerworkings Inc), Share Purchase Agreement (Innerworkings Inc)
Contracts; No Defaults. (a) Section 4.13(a) of the Disclosure Letter lists Schedule 4.10 contains a complete and the Company made available accurate list of, and Seller has delivered to Parent prior to the date hereof Buyer true and complete copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Contract that involves performance of services or officer delivery of goods or Affiliate materials by the Company of the Companyan amount or value in excess of US $100,000;
(ii) any Contracts evidencing, governing each Contract that involves performance of services or relating delivery of goods or materials to Debt or any guarantee by any Acquired the Company of any other Person an amount or value in excess of US $750,000, other than the Loan Documents50,000;
(iii) any Contracts each Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, the Company in excess of US $1,000,00050,000;
(iv) except for each lease agreement, license, installment and conditional sale agreement, and other Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than US $25,000 and with terms of less than one year);
(v) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property;
(vi) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(vii) each Contract between or including the Company and an Affiliate;
(viii) each Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of their Affiliates, the Company or to limit the freedom of any Acquired the Company or any Affiliate of their Affiliates the Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating each written warranty, guaranty, and or other similar undertaking with respect to any currency hedging;contractual performance extended by the Company other than in the Ordinary Course of Business; and
(x) any Contracts containing “standstill” each amendment, supplement, and modification (whether oral or similar provisions;
(xiwritten) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course respect of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;foregoing.
(xiiib) relating Seller (and each Affiliate of Seller) does not have any rights under or any obligation or liability under and does not have the right to collective bargaining require or other agreement or understanding with a labor union or labor organization;
(xiv) will not become subject to, any Contracts relating Contract that relates to the sale or exchange business of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition assets owned or dispositionused by, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xxc) any Contracts other than in connection with To the Franchise Agreements, the Management Agreement Documents Knowledge of Seller or the Loan Documents under which any Company, no officer, director, agent, employee, consultant, or contractor of the Acquired Companies has continuing indemnification obligations Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (other than Contracts entered into i) engage in or continue any conduct, activity, or practice relating to the ordinary course of business) or potential liability business of the Acquired Companies under Company, or (ii) assign to the Company or to any purchase price adjustment thatother Person any rights to any invention, in each caseimprovement, would reasonably be expected to result in future payments of more than $1,000,000or discovery;
(xxid) any With respect to each Contract relating identified or required to the settlement or proposed settlement of any Legal Proceedingbe identified in Schedule 4.10, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through the Contract is legal, valid, binding, enforceable and in full force and effect; (xxiiii) of this Section 4.13(a)) which by its the Contract will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms calls for payments in excess of $1,000,000. Each following the consummation of the foregoing is a “Material Contract.”
transactions contemplated hereby; (biii) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under the Contract; and (iv) no party has repudiated any provision of the Contract;
(e) The Company has not given to or received from any other Person, at any time since January 1, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Material Contract, ; and
(iif) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default by the Acquired Companies, under, outstanding rights to renegotiate any Material Contract (in each case, with material amounts paid or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect payable to the Acquired CompaniesCompany under current or completed Contracts with any Person and, and to the other parties theretoKnowledge of Seller or the Company, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesno such Person has made written demand for such renegotiation.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Transatlantic Petroleum Ltd.)
Contracts; No Defaults. (a) Section 4.13(a) of the The Disclosure Letter lists contains a complete and the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):accurate list of:
(i) any Contracts with any director, manager each Applicable Contract that involves performance of services or officer delivery of goods or Affiliate materials by the Company of the Companyan amount or value in excess of $250,000;
(ii) any Contracts evidencing, governing each Applicable Contract that involves performance of services or relating delivery of goods or materials to Debt or any guarantee by any Acquired the Company of any other Person an amount or value in excess of $750,000, other than the Loan Documents250,000;
(iii) any Contracts each Applicable Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, the Company in excess of $1,000,000250,000;
(iv) except for each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $250,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(vii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of their Affiliates, the Company or to limit the freedom of any Acquired the Company or any Affiliate of their Affiliates the Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating each Applicable Contract providing for payments to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing by any Person with any preemptive rightbased on sales, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect topurchases, or right to repurchase or redeemprofits, any securitiesother than direct payments for goods;
(ix) any Contracts relating to any currency hedgingeach power of attorney that is currently effective and outstanding;
(x) any Contracts containing “standstill” each Applicable Contract entered into other than in the Ordinary Course of Business that contains or similar provisionsprovides for an express undertaking by the Company to be responsible for consequential damages;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except each Applicable Contract for those instruments or documents entered into by the Acquired Companies capital expenditures in the ordinary course excess of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies$250,000;
(xii) any Contracts requiring that any each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company other than in the Ordinary Course of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;Business; and
(xiii) relating to collective bargaining each amendment, supplement, and modification (whether oral or other agreement or understanding with a labor union or labor organization;
(xivwritten) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would not, individually or set forth in the aggregateDisclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, have a Material Adverse Effect on and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the Acquired Companiesbusiness of, or any of the assets owned or used by, the Company; and
(ii) to the Knowledge of Sellers and the Company, no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) none engage in or continue any conduct, activity, or practice relating to the business of the Acquired Companies has received any written claim of default under any such Material Contract and Company, or (B) assign to the knowledge of Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in the Company Parties: Disclosure Letter, each Contract identified or required to be identified in the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in the Disclosure Letter:
(i) none the Company is, and at all times since January 1, 1995 has been, in full compliance with all applicable terms and requirements of each Contract under which the Company has or had any obligation or liability or by which the Company or any of the Acquired Companies assets owned or used by the Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 1995 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company or other party is in Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) the Company has not given to or received from any other Person, at any time since January 1, 1995, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach or violation of, or default under, any Material Contract, .
(iie) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired CompaniesCompany have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, underor any consideration having been paid or promised, that is or would be in violation of any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesLegal Requirement.
Appears in 2 contracts
Sources: Share Exchange Agreement (Melita International Corp), Share Exchange Agreement (Melita International Corp)
Contracts; No Defaults. (a) Section 4.13(aSchedule 3.13(a) contains a listing of the Disclosure Letter lists and all Contracts (other than any Contract that is an Employee Plan or a Real Property Lease) described in clauses (i) through (xix) below to which the Company made available to Parent prior to the date hereof copies or any of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties assets is bound as of the date hereof. True, correct and complete copies of Contracts referred to in clauses (i) through (xviii) below have been delivered to or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on made available to Acquiror or prior to the Closing, (2) is a Ground Lease its agents or (3) is an Organizational Document):representatives.
(i) any Contracts with any director, manager Contract concerning a partnership or officer joint venture or Affiliate of the Companysimilar arrangement that is currently in place;
(ii) any Contracts evidencingcollective bargaining agreement or other Contract with a labor organization, governing labor management council or other employee representative relating to Debt employees of the Company or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documentsits Subsidiaries;
(iii) any Contracts that reflect transactionsContract relating to the acquisition or disposition of any business or assets outside of the Ordinary Course of Business (whether by merger, sale/purchase of stock, sale/purchase of substantial assets or otherwise) entered into since January 1, 2013 or which contains outstanding earn-out or other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000similar contingent payment obligations;
(iv) except for any Contract pursuant to which the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, its Subsidiaries incurred a continuing obligation to pay amounts in respect of indemnification obligations outside the Ordinary Course of Business;
(v) Contracts (other than inter-company Contracts between the Company and any of its Subsidiaries) relating to the incurrence or to limit guarantee of Indebtedness or the freedom making of any Acquired loan or advance;
(vi) any Contract that (i) restricts the ability of the Company or any of their Affiliates its Subsidiaries to freely engage or compete in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether anywhere in the form of a loan, capital contribution world or otherwise(ii) any Subsidiary of any of the Acquired Companies, contains exclusivity or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification exclusive dealing obligations in effect for any current or former officer, director, trustee or employee“most favoured nation” pricing obligations;
(vii) any Contracts evidencing Contract that requires any employment agreements, severance, change in control member of the Company Group to purchase all or termination agreements with any officer, director, trustee substantially all of its requirements for a particular product or employeeservice from a specific vendor or supplier or to make periodic minimum purchases of a particular product or service from a specific vendor or supplier;
(viii) each Contract pursuant to which (i) the Company or any Contracts of its Subsidiaries grants to a third Person a license to any Owned Intellectual Property (Aother than non-exclusive licenses granted to customers or end users in the Ordinary Course of Business) relating or (ii) a third Person grants to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance Company or any similar right with respect of its Subsidiaries a license to use any securities or Intellectual Property (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesother than license agreements for commercially available Software);
(ix) any Contracts relating material settlement, conciliation, or similar agreement with any Governmental Authority or pursuant to which the Company or any currency hedgingof its Subsidiaries is obligated to pay any consideration after the date of this Agreement;
(x) any Contracts containing “standstill” Contract between the Company or similar provisionsany of its Subsidiaries, on the one hand, and any Affiliate, officer, member, director, executive employee or equityholder (whether direct or indirect) of the Company or its Subsidiaries (other than the Company or any Subsidiary) or any of their Immediate Family members, on the other hand;
(xi) other than Contracts covered by Section 3.13(a)(x), any Contracts (A) to which Contract for the employment or engagement of any Governmental Body is person on a party full-time, part-time, consulting or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except other basis and providing for those instruments or documents entered into by the Acquired Companies annual compensation in the ordinary course excess of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies$200,000;
(xii) any Contracts requiring that Contract involving capital expenditures by the Company or any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionits Subsidiaries in excess of $250,000;
(xiii) relating to collective bargaining any hedging, swap, forward, future, interest rate, commodity or other currency exchange agreement or understanding with a labor union similar hedging or labor organizationderivative instrument;
(xiv) any Contracts relating to the sale Contract with a Principal Customer or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000a Principal Supplier;
(xv) any Contracts relating Contract granting to the development any Person an option or construction ofa first refusal, first-offer or additions similar preferential right to purchase or expansions to, acquire any real property that would involve the expenditure by any assets or securities of a member of the Acquired Companies in excess of $1,000,000Company Group;
(xvi) any Loan DocumentsContract providing for payments or benefits upon a change of control of the Company Group or that would provide a counterparty with a right to terminate, or provide for any acceleration of any, or additional, benefits upon a change of control of the Company Group;
(xvii) any Contracts for Contract that is a settlement, conciliation or similar Contract that imposes any obligations upon the acquisition or disposition, directly or indirectly (by merger or otherwise), Company Group after the date of assets or capital stock or other equity interests of another Person for aggregate consideration this Agreement in excess of $1,000,000100,000;
(xviii) any Contracts relating Contract that involves remaining payments to or from the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures Company Group in excess of $250,000 per annum or $500,000 per Property location;in aggregate; and
(xix) any partnershipContract that has a remaining term of more than one (1) year from the date hereof and cannot be terminated by the Company Group without penalty on less than sixty (60) days’ notice.
(b) As of the date hereof, limited liability company agreementall the Contracts required to be listed pursuant to Section 3.13(a) (the “Material Contracts”) are (i) in full force and effect (ii) represent the legal, joint venture valid and binding obligations of the Company or other similar agreement or arrangement relating one of its Subsidiaries party thereto and, to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary knowledge of the Company;
, represent the legal, valid and binding obligations of the other parties thereto. Except as set forth on Schedule 3.13(b), (xxA) neither the Company nor any Contracts other than in connection of its Subsidiaries party thereto (with or without the Franchise Agreements, the Management Agreement Documents lapse of time or the Loan Documents under which giving of notice, or both) is in breach of or default under, or in the past five years has materially breached or been in material default under, any such Material Contract, (B) to the Company’s knowledge, no other party to such Material Contract is (with or without the lapse of time or the giving of notice, or both) in breach of or default under, any such Material Contract, (C) neither the Company nor any of its Subsidiaries have received any claim or notice of a breach of or default under any such Material Contract, (D) to the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability knowledge of the Acquired Companies under any purchase price adjustment thatCompany, in each caseno event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contractor permit the termination, (ii) no event has occurred which would result in a breach modification or violation acceleration of, or a default by the Acquired Companies, under, any such Material Contract (in each case, with or without notice or lapse of time or both), (E) and (iii) each no member of the Company Group has received notice of an intention of any third party under any Material Contract to cancel, terminate or modify the terms of any such Material Contract, or accelerate the obligations of a member of the Company Group thereunder; except in each of clauses (A), (B), (C), (D) as would only have a de minimus effect on the Company and its Subsidiaries taken as a whole.
(c) Neither the Company nor any of its Subsidiaries is, or in the past five (5) years has been, a party to any Government Contract. None of the Contracts to which the Company or a Subsidiary is valida party includes any clauses, binding and enforceable in accordance with its terms and is in full force and effect with respect provisions or requirements incorporated expressly or by reference from the Federal Acquisition Regulation (“FAR”) or any applicable U.S. Government agency supplement, included the U.S. Department of Defense Supplement to the Acquired CompaniesFAR, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesamended.
Appears in 2 contracts
Sources: Confidentiality Agreement (Celestica Inc), Exhibit (Celestica Inc)
Contracts; No Defaults. (a) Except for Permitted Encumbrances, Section 4.13(a8.13(a) of the Disclosure Letter lists contains a complete and accurate list of, or the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements RESI Public Filings include as exhibits thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
: (i) each Contract of RES Holding and its Subsidiaries that is required to be filed as an exhibit to any Contracts with any director, manager or officer or Affiliate of the Company;
RESI Public Filings, (ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company other Contract of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company RES Holding or any of their Affiliatesits Subsidiaries containing covenants not to compete, employee non-solicitation or no-hire covenants, or to limit otherwise materially limiting the freedom of any Acquired Company or any of their Affiliates RES Holding and its Subsidiaries to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(viii) any Contracts that provide an obligation to fund other Contract of RES Holding or make any investment in of its Subsidiaries constituting a material employment agreement or a collective bargaining or other agreement with a labor organization or other representative of RES Holding and its Subsidiaries employees, (whether in the form of a loan, capital contribution or otherwiseiv) any Subsidiary other Contract of RES Holding or any of its Subsidiaries with or for the benefit of any Affiliate of the Acquired Companies, or other Person RES Holding (other than with or among its Subsidiaries) or, to the Republic Parties' Knowledge, any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with immediate family member of any officer, director, trustee employee or employee;
equityholder of RES Holding or any of its Affiliates or any Affiliate thereof and (viiiv) any Contracts (A) other Contract of RES Holding or any of its Subsidiaries relating to the acquisitionmaterial indebtedness, issuance, voting, registration, sale financing arrangements or transfer guarantees of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesindebtedness;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or With respect to the Contracts identified in the aggregate, have a Material Adverse Effect on the Acquired Companies, (ASection 8.13(a) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) Disclosure Letter, to the knowledge of the Company Republic Parties' Knowledge: (i) none of the Acquired Companies is and no other party each Contract is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) full force and (iii) each Material Contract effect and is valid, binding valid and enforceable in accordance with its terms and is in full force and effect with respect terms, except to the Acquired Companies, and to the other parties thereto, except as extent that its enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratoriumfraudulent transfer, fraudulent transfer and moratorium or other similar laws of general applicability relating to or affecting creditors’ ' rights or generally and by general equitable equity principles, (ii) RES Holding has made available to USS/Kobe and BarTech a copy of each such Contract, (iii) RES Holding and its Subsidiaries are in compliance with all material terms and requirements of such Contracts, and (iv) RES Holding and its Subsidiaries have not given to or received from any other Person any written notice regarding any actual or alleged material violation or default of any such Contract.
Appears in 2 contracts
Sources: Master Restructuring Agreement (Rti Capital Corp), Master Restructuring Agreement (Republic Technologies International Inc)
Contracts; No Defaults. (a) Section 4.13(aPart 3.20(a) of contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Letter lists Schedule as required herein) accurate and the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any backlog lists of Seller, listing all Seller Contracts with any directorthat are orders from Business customers on backlog (by customer name, manager or officer or Affiliate order number, order date, model, selling price, cost, and gross profit) as of the Companydate hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) any Contracts evidencingto the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, governing each Seller Contract that involves performance of services or relating delivery of goods or materials by or to Debt Seller of an amount or any guarantee by any Acquired Company of any other Person value in excess of twenty-five thousand ($750,000, other than the Loan Documents25,000) dollars;
(iii) any Contracts each Seller Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, Seller in excess of ten ($1,000,00010,000) dollars;
(iv) each Seller Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except for the Loan Documentspersonal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than twenty-five thousand ($25,000) dollars and with a term of less than one year);
(v) each Seller Contract with any labor union or other employee representative of a group of employees relating to wages, the Franchise Agreementshours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, the Management Agreement Documents and Organization Documentslosses, costs or liabilities by Seller with any Contracts other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict the business Business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates Seller to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating each Seller Contract providing for payments to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing by any Person with any preemptive rightbased on sales, right of participationpurchases or profits, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesother than direct payments for goods;
(ix) any Contracts relating to any currency hedgingeach power of attorney of Seller that is currently effective and outstanding;
(x) any Contracts containing “standstill” each Seller Contract entered into other than in the Ordinary Course of Business that contains or similar provisionsprovides for an express undertaking by Seller to be responsible for consequential damages;
(xi) any Contracts each Seller Contract for capital expenditures in excess of twenty thousand (A$20,000) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companiesdollars;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactioneach Seller Contract not denominated in U.S. dollars;
(xiii) relating each written warranty, guaranty and/or other similar undertaking with respect to collective bargaining or contractual performance extended by Seller other agreement or understanding with a labor union or labor organization;than in the Ordinary Course of Business; and
(xiv) any Contracts relating to the sale each amendment, supplement and modification (whether oral or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property written) in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would notset forth in Part 3.20(b), individually no member of Seller has or in may acquire any rights under, and no member of Seller has or may become subject to any obligation or liability under, any Contract that relates to the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none Business or any of the Acquired Companies has received any written claim of default under any such Material Contract and Assets.
(Bc) to the knowledge of the Company Parties: Except as set forth in Part 3.20(c):
(i) none of the Acquired Companies each Seller Contract identified or required to be identified in Part 3.20
(a) and which is and no other party to be assigned to or assumed by Buyer under this Agreement is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) full force and (iii) each Material Contract effect and is valid, binding valid and enforceable in accordance with its terms and the Backlog List is in full force a complete and effect with respect correct list of all Business customer orders on backlog as of the Closing Date and such list represents actual, bona fide, outstanding orders of the Business that have not been cancelled on or prior to the Acquired CompaniesClosing Date;
(ii) each Seller Contract identified or required to be identified in Part 3.20(a) and which is being assigned to or assumed by Buyer is assignable by Seller to Buyer without the consent of any other Person; and
(iii) to the Knowledge of Seller, no Seller Contract identified or required to be identified in Part 3.20(a) and which is to be assigned to or assumed by Buyer under this Agreement will upon completion or performance thereof have a Material Adverse Effect on the Business, assets or condition of Seller or the Business to be conducted by Buyer with the Assets.
(d) Except as set forth in Part 3.20(d):
(i) Seller is, and at all times since December 31, 1999, has been, in compliance with all applicable terms and requirements of each Seller Contract which is being assumed by Buyer except where any noncompliance would not have a Material Adverse Effect;
(ii) to the Knowledge of Seller, each other parties theretoPerson that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, except as enforceability may be limited and at all times since December 31, 1999, has been, in compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes a Breach of, or give Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Seller Contract that is being assigned to or assumed by applicable bankruptcyBuyer;
(iv) to the Knowledge of Seller, insolvencyno event has occurred or circumstance exists under or by virtue of any Seller Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Assets; and
(v) Seller has not given to or received from any other Person, reorganizationat any time since December 31, moratorium1999, fraudulent transfer any notice regarding any actual, alleged, possible or potential violation or Breach of, or default under, any Contract which is being assigned to or assumed by Buyer.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller under current or completed Seller Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and other similar laws of general applicability no such Person has made written demand for such renegotiation.
(f) Each Seller Contract relating to the sale, design, manufacture or affecting creditors’ rights provision of products or services by general equitable principlesSeller has been entered into in the Ordinary Course of Business and has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
(g) No penalty or premium will be imposed upon Buyer for any prepayment of any amount due and/or outstanding under the Line of Credit or any Seller Contract assumed by Buyer at Closing.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Champion Enterprises Inc), Asset Purchase Agreement (Champion Enterprises Inc)
Contracts; No Defaults. (a) Section 4.13(aSchedule 4.12(a) sets forth a true, correct and complete list of the Disclosure Letter lists and the Company made available to Parent prior to the date hereof copies of each of the following all Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced described in clauses (i) through (xxii) below to which the Company or any of its Subsidiaries is a party or by which or any of their respective properties or assets is bound or affected or pursuant to which the Company or any of its Subsidiaries is an obligor or beneficiary (other than Company Benefit Plans and Contracts relating to insurance policies set forth on Schedule 4.17). True, correct and complete copies of the Contracts listed on Schedule 4.12(a), including all written amendments, modifications and supplements to or waivers thereunder, have been made available in the electronic data room to Industrea or its representatives.
(i) Each Contract (other than (x) purchase orders with suppliers or customers entered into in the ordinary course of business and (y) Contracts of the type (without giving effect to dollar thresholds) described in other clauses of this Section 4.13(a4.12(a)) which that the Company reasonably anticipates will involve annual payments or consideration furnished by or to the Company or any of its terms calls Subsidiaries of more than $1,000,000 annually;
(ii) Each mortgage, note, debenture, other evidence of indebtedness, guarantee, loan, credit or financing agreement or instrument or other contract for money borrowed by the Company or any of its Subsidiaries or security agreement or other Contract or instrument that grant any Lien on any material asset of the Company or any of its Subsidiaries;
(iii) Each Contract (A) for the acquisition of any Person or any business division thereof or the disposition of any material assets of the Company or any of its Subsidiaries (other than in the ordinary course of business), in each case, involving payments in excess of $1,000,000. , other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing and (B) for the acquisition of any property or Person or any business division thereof with amounts owing as deferred purchase price, including all seller notes and “earn-out” payments;
(iv) Each lease, rental or occupancy agreement, real property license, installment or conditional sale agreement or other Contract that, in each case, provides for the ownership, leasing or occupancy of any Leased Real Property or Owned Real Property with annual required payments in excess of $100,000;
(v) Each lease or sublease of any personal property, or that otherwise affects the ownership of, leasing of, title to, or use of, any personal property (other than leases or subleases for personal property and conditional sales agreements with annual required payments of less than $100,000);
(vi) Each joint venture Contract, partnership Contract, limited liability company Contract, strategic alliance Contract or other Contract with a third party involving any joint conduct or sharing of any business, venture or enterprise or sharing of profits, losses, costs or liabilities pursuant to which the Company or any of its Subsidiaries has any ownership interest in any other Person (in each case, other than with respect to wholly owned Subsidiaries of the foregoing Company);
(vii) Each Contract requiring capital expenditures after the date of this Agreement in an annual amount in excess of $200,000;
(viii) Each Contract containing covenants expressly limiting in any material respect the freedom of the Company or any of its Subsidiaries to compete with any Person in a product line or line of business or to operate in any geographic area;
(ix) Each Contract pursuant to which the Company or any of its Subsidiaries licenses or otherwise grants a right to any Person to (A) manufacture or reproduce any products, services or technology of the Company or its Subsidiaries or (B) sell or distribute any products, services or technology of the Company or its Subsidiaries;
(x) Each Contract granting to any person (other than the Company) an option or a first-refusal, first-offer or similar preferential right to purchase or acquire any material assets of the Company or any of its Subsidiaries;
(xi) Each Contract granting any “most favored nations” or similar rights;
(xii) Each Contract relating to the development, registration, ownership or enforcement of any Intellectual Property that is material to the business of the Company or any of its Subsidiaries;
(xiii) Each Contract pursuant to which the Company or any of its Subsidiaries licenses material Intellectual Property from or to a third party, other than (A) click-wrap, shrink-wrap and off-the-shelf software licenses, and any other software licenses that are available on standard terms to the public generally with license, maintenance and support fees less than $10,000 per year and (B) nonexclusive licenses granted by the Company or any of its Subsidiaries to its customers in the ordinary course of business consistent with past practice;
(xiv) Each Contract for financial management services, financial advisory services or other similar financial consulting services;
(xv) Each Contract which provides for a loan or advance of any amount to any director or officer of the Company or any of its Subsidiaries, other than advances for travel and other appropriate business expenses in the ordinary course of business;
(xvi) Each power of attorney granted by or on behalf of the Company or any of its Subsidiaries;
(xvii) Each warranty, indemnification, guaranty or other similar undertaking with respect to contractual performance extended by the Company or any of its Subsidiaries other than in the ordinary course of business; provided, that the “Material Contractordinary course of business” shall include such warranties, guaranties or other similar undertakings as may be extended in connection with concrete pumping and concrete waste disposal, containment and recycling services performed by the Company and its Subsidiaries as well as sales of spare parts and inventory;
(xviii) Each Contract which involves payments based, in whole or in part, on profits, revenues, fee income or other financial performance measures of the Company or any of its Subsidiaries;
(xix) Each employment, severance, retention, or independent contractor Contract with any employee or independent contractor pursuant to which such employee or independent contractor is eligible to receive annual cash compensation in excess of $100,000;
(xx) Each collective bargaining agreement, works council, agreement, or other similar Contract with any labor union or employee representatives;
(xxi) Each settlement agreement with respect to any pending or threatened Action entered into within twelve (12) months prior to the date of this Agreement, other than (A) releases entered into with former employees or independent contractors of the Company or any of its Subsidiaries in the ordinary course of business in connection with routine cessation of such employee’s or independent contractor’s employment with or retention by the Company or any of its Subsidiaries or (B) settlement agreements for cash only (which has been paid) and does not exceed $250,000 as to such settlement;
(xxii) Each Contract for a charitable or political contribution; and
(xxiii) Each Contract for the purchase or supply of gasoline or fuel requiring annual payments in excess of $200,000.”
(b) Except as set forth on Schedule 4.12(b) all of the Contracts set forth on Schedule 4.12(a) are (i) in full force and effect, subject to the Remedies Exception, and (ii) represent the valid and binding obligations of the Company or its applicable Subsidiaries party thereto and, to the knowledge of the Company, represent the valid and binding obligations of the other parties thereto. Except as set forth on Schedule 4.12(b), and except, in each case, where the occurrence of such breach or default would notnot reasonably be expected to be material to the Company and its Subsidiaries, individually or in the aggregate, have taken as a Material Adverse Effect on the Acquired Companieswhole, (Ax) none neither the Company nor any of its Subsidiaries nor, to the knowledge of the Acquired Companies has received Company, any written claim other party thereto is in material breach of or material default under any such Material Contract Contract, (y), neither the Company nor any of its Subsidiaries has received any claim or notice of material breach of or material default under any such Contract, and (Bz) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation ofCompany, or default under, any Material Contract, (ii) no event has occurred which which, individually or together with other events, would reasonably be expected to result in a material breach or violation of, of or a material default by the Acquired Companies, under, under any Material such Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 2 contracts
Sources: Merger Agreement (Industrea Acquisition Corp.), Merger Agreement
Contracts; No Defaults. (a) Except as set forth in Section 4.13(a3.14(a) of the Disclosure Letter lists and Schedule, neither the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which nor any Acquired Company Subsidiary is a party to, beneficiary of, or otherwise entitled to or bound by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Documentas applicable):
(i) any Contracts with note, mortgage, indenture or other written obligation or agreement or other instrument for or relating to indebtedness for money borrowed (including capitalized lease obligations), or any directorwritten guarantee, manager pledge, surety or officer indemnification by the Company or Affiliate any Subsidiary of third-party obligations, in each case, excluding Securitization Instruments, and for an amount in excess of Five Hundred Thousand US Dollars ($500,000) or pursuant to which any material Encumbrances are or were created or imposed on the CompanyCompany or any Subsidiary or on any of their respective property or assets;
(ii) any Contracts evidencing, governing lease of personal property with annual lease payments of more than Five Hundred Thousand US Dollars ($500,000) or relating to Debt or any guarantee by any Acquired Company a total remaining obligation of any other Person in excess of more than One Million Five Hundred Thousand US Dollars ($750,000, other than the Loan Documents1,500,000);
(iii) any Contracts joint venture or partnership agreement;
(iv) any non-competition, non-solicitation or exclusive dealing agreements or other agreements or arrangements that reflect transactionsrestrict or limit or purport to restrict or limit in any material respect the ability of the Company or any of its Subsidiaries, or any officer, employee or independent contractor of the Company or any of its Subsidiaries, to solicit customers, potential employees or the manner in which, or the localities in which, all or any portion of the Business is or may be conducted;
(v) other than dealer agreements, repossession agent agreements and auction house agreements in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documentsbusiness consistent with past practice, any Contracts that in any way purport agreement or understanding with a value, or calling for payments to restrict be made or received by the business activity of any Acquired Company or any of their Affiliatesits Subsidiaries, or to limit the freedom of more than Five Hundred Thousand US Dollars ($500,000) within any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document)twelve month period;
(vi) any Contracts providing for any indemnification obligations in effect for any current material agreement or former officer, director, trustee understanding containing a "change of control" or employeeanti-assignment provision that would be triggered by the Transactions;
(vii) other than auction house agreements in the ordinary course of business consistent with past practice, any Contracts evidencing agreement or understanding providing for the acquisition or disposition after the date of this Agreement of any employment agreements, severance, change of the assets of the Business contemplating an exchange of value in control or termination agreements with any officer, director, trustee or employee;excess of Five Hundred Thousand US Dollars ($500,000); and
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating that is material to the sale ownership or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any operation of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material ContractBusiness.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none All of the Acquired Companies has received any written claim of default under any such agreements, arrangements, understandings and other items responsive to Section 3.08 and Section 3.14(a) are at times referred to herein as "Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Contracts." Each Material Contract is valida legal, valid and binding obligation of, and enforceable in accordance with against, the Company and/or one of its terms Subsidiaries and, to the Knowledge of the Seller and the Company, the other parties thereto, and is in full force and effect and enforceable in accordance with respect to the Acquired Companies, and to the other parties theretoits terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and moratorium or other similar laws of general applicability relating to or affecting creditors’ ' rights or by generally, and general equitable principles, and except for such failures to be in force and effect and enforceable as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. True and complete copies of all Material Contracts have been previously made available to the Purchaser. Except as set forth in Section 3.14(b) of the Disclosure Schedule, to the Knowledge of the Seller and the Company, there is no default or breach or written claim of default or breach by any party under, or dispute in writing regarding the material terms of, any such Material Contract, and no event has occurred which with the passage of time or the giving of notice or both would constitute a default or breach by any party under any such Material Contract or would permit termination, modification or acceleration of any such Material Contract or constitute a similar event permitting the termination of the Company's or any Subsidiary's rights under any such Material Contract except for such events, breaches or defaults, as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Triad Financial Corp), Stock Purchase Agreement (Triad Financial Corp)
Contracts; No Defaults. (a) Section 4.13(a) Seller has made or will make available to Purchaser copies of the Disclosure Letter lists Material Contracts. Schedule 3.10 sets forth a complete and the Company made available to Parent prior to the date hereof copies of each accurate list of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
Contracts: (i) any all Contracts with any director, manager that have an aggregate annual value or officer or Affiliate result in an aggregate annual expense of the Company;
at least $250,000; (ii) any Contracts evidencing, governing agreement that grants a right of first refusal with respect to the purchase or relating to Debt sale of a capital asset of an Acquired Entity or any guarantee by any an equity interest in an Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
Entity; (iii) any Contracts that reflect transactions, agreement relating to the borrowing or lending of money other than advances to employees to cover business expenses in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
; (iv) except for any joint venture contract, partnership contract or similar contract evidencing an ownership interest or a participation in or sharing of profits; (v) any guaranty, contribution agreement or other agreement that includes any material indemnification or contribution obligation; (vi) any agreement (including any non-competition agreement) limiting the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity ability of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates Entity to engage in any line of business or to compete in business with any Person or restricting the geographical area in which such Acquired Entity may engage in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
business; and (vii) any Contracts evidencing any employment agreementsemployment, severanceconsulting, change in control management, severance or termination agreements indemnification contract or agreement with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies annual obligations in excess of $1,000,000;
100,000. Seller has provided or will provide Purchaser true and correct copies of all agreements with any individual known by any Acquired Entity to be a physician or an immediate family member of a physician, or with an entity known by any Acquired Entity to be owned by a physician or an immediate family member of a physician (xvitogether with the contracts referenced in (i)-(vii) any Loan Documents;
(xvii) any above, the "Material Contracts"). All of the Material Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating are with respect to the operations of the PropertiesAcquired Entities, other than the Franchise Agreementsand, to Seller's Knowledge, with respect to all material advertising other parties thereto, valid and marketing agreementsbinding obligations, are in full force and credit card agreementseffect in accordance with their terms. Except as set forth in Schedule 3.10, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnershipthere is not, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement DocumentsMaterial Contracts, any licenseexisting default, royalty event of default or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each casewhich, with or without due notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to would constitute a default or event of default on the part of any Acquired Companies, and to the other parties theretoEntity, except as enforceability may be limited by applicable bankruptcysuch defaults, insolvency, reorganization, moratorium, fraudulent transfer events of default and other similar laws events as to which requisite waivers or consents have been obtained or would not reasonably be expected to cause a Material Adverse Effect. To Seller's knowledge, no party to any of general applicability relating the Material Contracts intends to cancel, terminate or affecting creditors’ rights or by general equitable principlesexercise any option under any of such Material Contracts.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Psychiatric Solutions Inc), Stock Purchase Agreement (Psychiatric Solutions Inc)
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and contains a listing of all Contracts described in clauses (i) through (xvi) below to which, as of the date of this Agreement, the Company made available to Parent prior to the date hereof copies of each or any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Company’s Subsidiaries is a party or by which any they are bound, other than a Company Benefit Plan. True, correct and complete copies of their respective properties the Contracts listed on Section 4.12(a) of the Company Disclosure Letter have previously been delivered to or assets are bound (notwithstanding anything hereinmade available to Acquiror or its Representatives, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):together with all amendments thereto.
(i) any Contracts with any directorEach Contract involving obligations (contingent or otherwise), manager payments or officer revenues in excess of $800,000 in the twelve months ended December 31, 2022 or Affiliate expected obligations (contingent or otherwise), payments or revenues in excess of $800,000 in the Companynext twelve months after the date of this Agreement;
(ii) any Contracts evidencingEach note, governing debenture, other evidence of Indebtedness, guarantee, loan, credit or relating to Debt financing agreement or instrument or other Contract for money borrowed by, or other Indebtedness of, the Company or any guarantee by any Acquired Company of the Company’s Subsidiaries, including any other Person agreement or commitment for future loans, credit or financing, in each case, in excess of $750,000, other than the Loan Documents100,000;
(iii) Each Contract for the acquisition of any Contracts that reflect transactions, other than Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries in the ordinary course of business, that involve expenditureslast three (3) years, in cash or any other form of considerationeach case, involving payments in excess of $1,000,000200,000 other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, or (B) solely between the Company and its wholly-owned Subsidiaries;
(iv) except Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any Contracts that leasehold or other interest in any way purport to restrict the business activity real or tangible personal property that involves aggregate payments in excess of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage $100,000 in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projectscalendar year;
(v) any Contracts that provide an obligation to fund Each Contract involving the formation, establishment, contribution to, or make operation of a (A) partnership, (B) corporation, limited liability company or other entity, or (C) joint venture, alliance or similar entity, or involving a sharing of profits or losses (including joint development and joint marketing Contracts), or any investment in in, loan to or acquisition or sale of the securities, Equity Securities or assets of any person involving payments of an amount higher than $100,000 (whether excluding, in the form case of a loanclauses (A) and (B), capital contribution or otherwise) any wholly-owned Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational DocumentCompany);
(vi) Contracts between the Company and its Subsidiaries, on the one hand, and any Company Related Party, on the other hand, which are currently in force or under which any party thereto has outstanding obligations (collectively, “Related Party Agreements”), other than (1) Company Benefit Plans and (2) travel booking Contracts providing for any indemnification obligations entered into in effect for any current or former officer, director, trustee or employeethe ordinary course of business consistent with past practice;
(vii) Contracts that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the transactions contemplated hereby, other than any Contracts evidencing any employment agreements, severance, change involving payments of an amount not exceeding $250,000 annually or in control or termination agreements with any officer, director, trustee or employeethe aggregate;
(viii) Contracts containing covenants of the Company or any Contracts of the Company’s Subsidiaries (A) relating prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to the acquisition, issuance, voting, registration, sale engage in or transfer compete with any Person in any line of business in any securities, material respect or (B) providing prohibiting or restricting the Company’s and the Company’s Subsidiaries’ ability to conduct their business with any Person with in any preemptive right, right of participation, right of maintenance or geographic area in any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesmaterial respect;
(ix) Any collective bargaining agreement or similar labor-related Contract between the Company or any Contracts relating to of the Company’s Subsidiaries, on one hand, and any currency hedginglabor union or other similar labor organization representing employees of the Company or any of the Company’s Subsidiaries, on the other hand;
(x) any Contracts containing “standstill” Each Contract (including license agreements, coexistence agreements and agreements with covenants not to sue, but not including assignment or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party transfer agreements, non-disclosure agreements or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining incidental trademark or other agreement licenses incident to marketing, printing or understanding with a labor union advertising or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock services or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts agreements entered into in the ordinary course of business) pursuant to which the Company or potential liability any of the Acquired Companies under Company’s Subsidiaries (A) grants to a third Person the right to use Intellectual Property of the Company and its Subsidiaries that is material to the business of the Company and its Subsidiaries, taken as a whole (other than non-exclusive licenses granted in the ordinary course of business consistent with past practice), or (B) is granted by a third Person the right to use Intellectual Property that is material to the business of the Company and its Subsidiaries, taken as a whole (other than Contracts granting non-exclusive rights to use commercially available off-the-shelf software and Open Source Licenses);
(xi) Each Contract requiring capital expenditures by the Company or any of the Company’s Subsidiaries after the date of this Agreement in an amount in excess of $200,000 in any calendar year;
(xii) Any Contract that (A) grants to any third Person any “most favored nation rights”; or (B) grants to any third Person price guarantees for a period greater than one (1) year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of $500,000 in any calendar year;
(xiii) Contracts granting to any Person (other than the Company or its Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase price adjustment thator acquire equity interests in the Company or any of the Company’s Subsidiaries;
(xiv) Contracts in connection with the waiver, compromise, or settlement of any Legal Proceedings involving payment of an amount greater than $100,000 that remains outstanding as of the date of this Agreement;
(xv) Contracts with a Governmental Authority or sole-source supplier of any product or service (other than utilities), in each case involving payments of an amount higher than $100,000; and
(xvi) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xi) of this Section 4.12(a).
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Acquisition Closing Date, all of the Contracts listed pursuant to Section 4.12(a) in the Company Disclosure Letter are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or the Subsidiary of the Company party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to the business of the Company and its Subsidiaries, taken as a whole, (x) the Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.12(a) and neither the Company, the Company’s Subsidiaries, nor, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract, (y) during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the knowledge of the Company, no event has occurred which individually or together with other events, has or would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or any of its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 2 contracts
Sources: Business Combination Agreement (Bridgetown Holdings LTD), Business Combination Agreement (Bridgetown Holdings LTD)
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and contains a list of all Contracts described in clauses (i) through (xiv) of this Section 4.12(a) to which, as of the date of this Agreement, the Company or any of its Subsidiaries is a party other than the Company Benefit Plans (all such Contracts as described in clauses (i) through (xiv), collectively, the “Specified Contracts”). True, correct and complete copies of the Specified Contracts have been made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):SPAC.
(i) any Contracts Each Contract with any director, manager or officer or Affiliate of the Companytop ten vendors (calculated based on the aggregate consideration paid by the Company and its Subsidiaries thereto for the calendar year ended December 31, 2020);
(ii) any Contracts evidencing, governing or Each Contract relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, Indebtedness having an outstanding principal amount in excess of $1,000,000;
(iviii) except Each Contract that is a purchase and sale or similar agreement for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity acquisition of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or any business unit thereof, in each case, involving payments in excess of $500,000 and with respect to which there are any geographic area or material ongoing obligations;
(iv) Each joint venture (other than Contracts between wholly-owned Subsidiaries of the Company) that is material to hire or retain any Personthe business of the Company and its Subsidiaries, except for customary restrictions imposed by localities taken as a condition to approval of the Acquired Companies’ development projectswhole;
(v) any Contracts that provide an obligation to fund Each Contract requiring capital expenditures in a single transaction for the Company or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of its Subsidiaries after the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations date of this Agreement in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies an amount in excess of $1,000,000;
(xvivi) Each material license or other material agreement under which the Company or any Loan Documents;
of its Subsidiaries (xviix) is a licensee with respect to any Contracts item of material Licensed Intellectual Property (excluding click-wrap and shrink-wrap licenses and licenses for off-the-shelf software and other software that is commercially available on standard terms to the acquisition or disposition, directly or indirectly (by merger or otherwisepublic generally and open source licenses), (y) is a licensor or otherwise grants to a third party any rights to use any item of assets or capital stock or other equity interests of another Person for aggregate consideration material Owned Intellectual Property, in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Propertieseach case, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture non-exclusive licenses or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into sublicenses granted in the ordinary course of business, or (z) is a party and that otherwise materially affects the Company’s or its Subsidiaries’ ownership of or ability to use, register, license or enforce any material Owned Intellectual Property (including concurrent use agreements, settlement agreements and consent to use agreements but other than licenses excluded under clause (x) above);
(vii) Each collective bargaining agreement or other labor Contract with any labor union, labor organization or works council or any arrangement with an employer organization (each a “CBA”);
(viii) Each Contract which grants any Person a right of first refusal, right of first offer or similar right with respect to any material properties, assets or businesses of the Company and its Subsidiaries, taken as a whole;
(ix) Each Contract that is a settlement, conciliation or similar agreement with any Governmental Authority pursuant to which the Company or any of its Subsidiaries will have any material outstanding obligation after the date of this Agreement;
(x) Each Affiliate Agreement;
(xi) Each Contract containing covenants of the Company or any of its Subsidiaries (A) prohibiting or limiting the right of the Company or any of its Subsidiaries to engage in or compete with any Person that would reasonably be expected to be material to the Company and its Subsidiaries (taken as a whole) or potential liability of (B) prohibiting or restricting the Acquired Companies under Company’s and its Subsidiaries’ ability to conduct their business with any purchase price adjustment thatPerson in any geographic area in any material respect, except, in each case, as provided for in the Franchise Agreements;
(xii) Each Contract that contains any exclusivity, “most favored nation,” minimum use or supply requirements or similar covenants, except, in each case, as provided for in the Franchise Agreements;
(xiii) Each Contract entered into primarily for the purpose of interest rate or foreign currency hedging; and
(xiv) Each Contract that relates to the acquisition or disposition of any Equity Securities in, or assets or properties of, the Company or any of its Subsidiaries (whether by merger, sale of stock, sale of assets, license or otherwise) pursuant to which (A) payment obligations by or to the Company or any of its Subsidiaries remain outstanding or (B) any earn-out, deferred or contingent payment obligations remain outstanding (excluding acquisitions or dispositions in the ordinary course of business consistent with past practice or of assets that are obsolete, worn out, surplus or no longer used in the conduct of the Company’s business).
(b) Except (x) to the extent that any Specified Contract or Company Lease expires, terminates or is not renewed following the date of this Agreement upon the expiration of the stated term thereof, and (y) for such failures to be legal, valid and binding or to be in full force and effect as would not have a Material Adverse Effect, each Specified Contract and Company Lease is (i) in full force and effect and (ii) represents the legal, valid and binding obligations of the Company or one or more of its Subsidiaries party thereto and, to the Knowledge of the Company, represents the legal, valid and binding obligations of the other parties thereto, in each case, subject to the Enforceability Exceptions. Except where the occurrence of such breach or default or failure to perform would not have a Material Adverse Effect, (x) the Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under the Specified Contracts and the Company Leases and neither the Company, the Company’s Subsidiaries, nor, to the Knowledge of the Company, any other party thereto is in breach of or default under any Specified Contract or Company Lease, (y) during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any Specified Contract or Company Lease, and (z) to the Knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Specified Contract and (B) or Company Lease by the Company or its Subsidiaries or, to the knowledge Knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 2 contracts
Sources: Merger Agreement (Silver Crest Acquisition Corp), Merger Agreement (Silver Crest Acquisition Corp)
Contracts; No Defaults. (a) Section 4.13(a) of the Company Disclosure Letter lists and the Company made available contains a listing of all Contracts described in clauses (i) through (xv) below to Parent prior to which, as of the date hereof copies of each of this Agreement, the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is Business Entities are a party or by which any they are bound, other than a Benefit Plan. True, correct and complete copies of their respective properties the Contracts listed on Section 4.13(a) of the Company Disclosure Letter have previously been delivered to or assets are bound (notwithstanding anything hereinmade available to Acquiror or its agents or representatives, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):together with all amendments thereto.
(i) Any Contract with any of the Top Customers or the Top Vendors;
(ii) Each note, debenture, other evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract for money borrowed by Inpixon, the Company or any of the Company Subsidiaries, including any agreement or commitment for future loans, credit or financing and any agreement pursuant to which the Business Entities granted a Lien on its assets, whether tangible or intangible, to secure any Indebtedness, in each case, in excess of $100,000;
(iii) Each Contract for the acquisition of any Person or any business unit thereof or the disposition of any material assets of the Business Entities in the last five (5) years, in each case, involving payments in excess of $100,000 other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, or (B) between the Company and its wholly-owned Subsidiaries;
(iv) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property that involves aggregate payments in excess of $100,000 in any calendar year;
(v) Each Contract involving the formation of a (A) joint venture, (B) partnership, or (C) limited liability company (excluding, in the case of clauses (B) and (C), any wholly-owned Company Subsidiary);
(vi) Contracts (other than employment agreements, employee confidentiality and invention assignment agreements, individual consulting or advisor agreements, equity or incentive equity documents and Governing Documents) between the Company and the Company Subsidiaries, on the one hand, and Affiliates of the Company or any of the Company Subsidiaries (other than the Company or any of the Company Subsidiaries), the officers and managers (or equivalents) of the Company or any of the Company Subsidiaries, the members or stockholders of the Company or any of the Company Subsidiaries, any employee of the Company or any of the Company Subsidiaries or a member of the immediate family of the foregoing Persons, on the other hand (collectively, “Affiliate Agreements”);
(vii) Contracts with any directoreach current employee or individual independent contractor of the Company or the Company Subsidiaries with annual base compensation in excess of $100,000, manager or officer or Affiliate and service agreements with each director of the Company;
(iiviii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company containing covenants of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, the Company Subsidiaries (A) prohibiting or to limit limiting the freedom right of any Acquired the Company or any of their Affiliates the Company Subsidiaries to engage in or compete with any Person in any line of business in any material respect or (B) prohibiting or restricting the Company’s and the Company Subsidiaries’ ability to compete conduct their business with any Person or in any geographic area or to hire or retain in any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesmaterial respect;
(ix) Any collective bargaining (or similar) agreement or Contract between the Company or any Contracts relating to of the Company Subsidiaries, on one hand, and any currency hedginglabor union, labor organization, works council, or other body representing employees of the Company or any of the Company Subsidiaries, on the other hand;
(x) any Contracts containing “standstill” or similar provisions;
Each Contract (xiincluding license agreements, coexistence agreements, and agreements with covenants not to sue, but not including (1) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, non-disclosure agreements or (B2) directly ancillary trademark licenses incident to marketing, printing or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated)advertising Contracts, in each case, having value case of more than $500,000;
(xv1) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi2) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability pursuant to which any Business Entity (i) grants to a third Person the right to use Company IP (other than Contracts granting nonexclusive rights to customers to use the Company Products on terms that do not materially differ from the standard forms of the Acquired Companies under Enterprise Apps Business previously delivered to or made available to Acquiror or its agents or representatives, together with all amendments thereto) or (ii) is granted by a third Person the right to use Intellectual Property used or held for use in the operation of the Enterprise Apps Business (other than Contracts granting nonexclusive rights to use commercially available off-the-shelf software that is not used in the Company Products and involves aggregate payments less than $100,000 in any calendar year and Open Source Licenses);
(xi) Each Contract requiring capital expenditures by any of the Business Entities after the date of this Agreement in an amount in excess of $100,000 in any calendar year;
(xii) Any Contract that (A) grants to any third Person any “most favored nation rights” or other preferential pricing term rights or (B) grants to any third Person price guarantees for a period greater than one (1) year from the date of this Agreement and requires aggregate future payments to any of the Business Entities in excess of $100,000 in any calendar year;
(xiii) Contracts granting to any Person (other than the Company or the Company Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase price adjustment thator acquire equity interests in the Company or any of the Company Subsidiaries; and
(xiv) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xiv) of this Section 4.13(a).
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, all of the Contracts listed pursuant to Section 4.13(a) in the Company Disclosure Letter are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of Inpixon, the Company or the Company Subsidiary party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to the business of the Business Entities, taken as a whole, Inpixon, the Company and the Company Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.13(a) and none of Inpixon, the Company, the Company Subsidiaries, or, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract. During the last twelve (12) months, none of (y) Inpixon, the Company or any of the Company Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by Inpixon, the Company or the Company Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both), except in each case, where the occurrence of the foregoing (i) would not have, or would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Inpixon and the Company to enter into and perform their obligations under this Agreement or (iiiii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect be material to the Acquired CompaniesBusiness Entities, and to the other parties thereto, except taken as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesa whole.
Appears in 2 contracts
Sources: Merger Agreement (KINS Technology Group, Inc.), Merger Agreement (Inpixon)
Contracts; No Defaults. (a) Section 4.13(a6.11(a) of the Company Disclosure Letter lists and Schedule contains a listing of all Contracts described in clauses (i) through (xiii) below to which the Company made available to Parent prior to the date hereof copies or any of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which any of their respective properties or assets are it is bound (notwithstanding anything hereineach Contract required to be listed on Section 6.11(a) of the Company Disclosure Schedule, a “Material Significant Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document”):
(i) any Contracts Contract with any directora Top 15 Vendor or Top 15 Customer (other than purchase or service orders accepted, manager confirmed or officer or Affiliate entered into in the Ordinary Course of the CompanyBusiness);
(ii) each employment Contract with any Contracts evidencing, governing employee of the Company or relating to Debt or any guarantee by any Acquired Company one of any other Person its Subsidiaries that provides for annual base compensation in excess of $750,000, other than the Loan Documents250,000;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000each collective bargaining Contract (a “Labor Contract”);
(iv) except for any Contract pursuant to which the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliatesits Subsidiaries leases, subleases, occupies or to limit otherwise uses any real property (the freedom of “Real Property Leases”);
(v) (A) any Acquired Contract under which the Company or any of their Affiliates its Subsidiaries has granted to engage a third party any, license, or covenant not to ▇▇▇ with respect to any Intellectual Property, other than non-exclusive licenses granted in the Ordinary Course of Business, or (B) any Contract pursuant to which the Company or any of its Subsidiaries obtains any, license, or covenant not to ▇▇▇ from a third party with respect to any Intellectual Property, other than licenses of Software that are commercially available to the public generally, with annual license, maintenance, support and other fees less than $500,000;
(vi) any Contract that (A)(1) contains a covenant not to compete in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except solicit persons for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person employment (other than non-disclosure agreements, confidentiality agreements entered into in the Ordinary Course of Business), (2) involves the Company or any Organizational Document);
of its Subsidiaries granting exclusive or preferential rights or “most favored nations” status to any person, or (vi3) obligates the Company or any Contracts providing for of its Subsidiaries to purchase or obtain a minimum or specified amount of any indemnification obligations product or service in effect for excess of $1,000,000 in the aggregate, in each case that is applicable to the Company or any current of its Subsidiaries or former officer, director, trustee (B) prohibits the Company or employeeany of its Subsidiaries from soliciting any customers or strategic partners;
(vii) any Contract under which the Company or any of its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (excluding, for the avoidance of doubt, any intercompany arrangements solely between or among the Company or any of its Subsidiaries), (B) granted a Lien on its assets or group of assets, whether tangible or intangible, to secure any Indebtedness, (C) extended credit to any Person (other than Contracts evidencing involving immaterial advances made to an employee of the Company or any employment agreementsof its Subsidiaries in the Ordinary Course of Business) or (D) granted a material performance bond, severanceletter of credit or any other similar instrument, change in control or termination agreements with any officereach case, director, trustee or employeein excess of $500,000;
(viii) any Contract with any Governmental Authority;
(ix) each Contract with a Related Party (other than Company Benefit Plans or Contracts for compensation for services performed by a Related Party as director, officer, service provider or employee of the Company or any of its Subsidiaries and amounts reimbursable for routine travel and other business expenses in the Ordinary Course of Business);
(Ax) each Contract relating to the acquisition, issuance, voting, registrationacquisition or disposition of any business (whether by merger, sale of stock, sale of assets or transfer otherwise);
(xi) any Contract establishing any joint venture, strategic alliance, partnership or other collaboration;
(xii) any Contract involving any resolution or settlement of any securitiesactual or threatened litigation, arbitration, claim or other dispute under which the Company or any of its Subsidiaries has any ongoing obligations (Beither monetary or non-monetary); and
(xiii) providing any Contract which grants any Person with any preemptive righta right of first refusal, right of participation, right of maintenance first offer or any similar right with respect to any securities properties, assets or (C) providing businesses of the Company or any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;its Subsidiaries.
(ixb) True and correct copies of each Significant Contract that are in effect as of the date hereof or which have any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect material ongoing obligations binding on the Acquired Companies;
(xii) any Contracts requiring that Company or any of its Subsidiaries have been delivered to or made available to HTP. Each Significant Contract is in full force and effect and represent the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposallegal, or prior to entering into any discussionsvalid and binding obligations of the parties thereto and is enforceable in accordance with their terms and conditions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating subject to the sale or exchange ofEnforceability Exceptions. Neither the Company nor any of its Subsidiaries nor, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary knowledge of the Company;
(xx) , any Contracts other than party to any such Significant Contract is in connection with breach of or in default under any Significant Contract. Neither the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which Company nor any of its Subsidiaries has received any written claim or notice of breach of or default under any Significant Contract, and, to the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability knowledge of the Acquired Companies under any purchase price adjustment thatCompany, in each caseno event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Significant Contract and (B) by the Company or any Subsidiary of the Company party thereto or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material ). No party to any Significant Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect has exercised termination rights with respect thereto or has indicated in writing that it intends to terminate or materially modify its relationship with the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws Company or any of general applicability relating to or affecting creditors’ rights or by general equitable principlesits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Highland Transcend Partners I Corp.), Merger Agreement (Highland Transcend Partners I Corp.)
Contracts; No Defaults. (a) Section 4.13(aSchedule 5.13(a) contains a listing of all Contracts described in clauses (i) through (xvii) below to which, as of the Disclosure Letter lists and date of this Agreement or as of the date specified (if applicable), the Company or any of its Subsidiaries is a party. True and correct copies of the Contracts listed on Schedule 5.13(a) have been delivered to or made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party Monocle or by which any of their respective properties its agents or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):representatives:
(i) any Contracts each employment Contract with any director, manager or officer or Affiliate of the CompanyCompany or one of its Subsidiaries that provides for annual base compensation in excess of $200,000;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documentseach employee collective bargaining Contract (a “Labor Contract”);
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash Contract with a customer or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person vendor (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange ofservice orders accepted, confirmed or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) listed on Schedule 5.25;
(iv) (A) any Contract under which the Company or potential liability any of its Subsidiaries has granted to a third party any license under Intellectual Property owned by and material to the Acquired Companies under Company or any of its Subsidiaries, other than non-exclusive licenses granted in the ordinary course of business consistent with past practice, or (B) any Contract pursuant to which the Company or any of its Subsidiaries licenses from a third party Intellectual Property, other than (x) shrink-wrap, click-wrap and off-the-shelf software licenses, and (y) any other licenses of software that are commercially available to the public generally, with one-time or annual license, maintenance, support and other fees less than $100,000;
(v) any Contract that (A) contains a covenant not to compete in any line of business or solicit persons for employment (other than non-disclosure agreements, confidentiality agreements entered into in the ordinary course of business), (B) grants exclusive or preferential rights or “most favored nations” status to any person, or (C) obligates the Company or any of its Subsidiaries to purchase price adjustment thator obtain a minimum or specified amount of any product or service in excess of $100,000 in the aggregate, in each casecase that is applicable to the Company or any of its Subsidiaries;
(vi) any Contract with any Governmental Authority;
(vii) any Contract under which the Company or any of its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for money borrowed (excluding, for the avoidance of doubt, any intercompany arrangements solely between or among the Company or any of its Subsidiaries), (B) granted a Lien on its assets, whether tangible or intangible, to secure any indebtedness for money borrowed, or (C) extended credit to any Person (other than (I) intercompany loans and advances and (II) customer payment terms in the ordinary course of business consistent with past practice);
(viii) any Contract authorizing the Company or any of its Subsidiaries to manufacture parts pursuant to a PMA granted by the FAA (including any manufacturing license agreement with an original equipment manufacturer) or pursuant to which the Company or any of its Subsidiaries licenses to other entities the right to produce products under the authority of a STC held by the Company or any of its Subsidiaries;
(ix) any Affiliate Agreement;
(x) each Contract relating to any currently planned business acquisition by the Company or any of its Subsidiaries or any completed business acquisition since January 1, 2016;
(xi) as of the date that is two (2) Business Days prior to the date hereof, each Contract pursuant to which the Company or any of its Subsidiaries leases any aircraft or aircraft engine; provided, that the Company has not, since the date that is two (2) Business Days prior to the date hereof, entered into a Contract pursuant to which the Company or any of its Subsidiaries leases any aircraft or aircraft engine outside of the ordinary course of business consistent with past practice;
(xii) any Contract establishing any joint venture, strategic alliance, partnership or other collaboration;
(xiii) any Contract entered into since July 1, 2016 involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute under which the Company or any of its Subsidiaries has any material ongoing obligations (either monetary or non-monetary);
(xiv) any Contract which grants any Person a right of first refusal, right of first offer or similar right with respect to any material properties, assets or businesses of the Company;
(xv) any Contract providing for indemnification by the Company or any of its Subsidiaries of any Person except for Contracts entered into in the ordinary course of business consistent with past practice the primary purpose of which is not indemnification and which such indemnification obligations would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole;
(xvi) any Contract of the Company (other than any Company Benefit Plan) involving aggregate consideration in excess of $500,000 per year and which cannot be cancelled or terminated by the Company without penalty or without more than 90 days’ notice; and
(xvii) any Contract that relates to the acquisition or disposition of any equity interests in or assets or properties of the Company or any of its Subsidiaries (whether by merger, sale of stock, sale of assets or otherwise) pursuant to which (A) payment obligations by or to the Company or any of its Subsidiaries remain outstanding or (B) any earn-out, indemnification, deferred or contingent payment obligations remain outstanding (excluding acquisitions or dispositions of supplies, inventory, merchandise or products in the ordinary course of business consistent with past practice or of supplies, inventory, merchandise, products, properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of the Company’s business).
(b) Except as set forth on Schedule 5.13(b), (i) as of the date of this Agreement, all of the Contracts listed pursuant to Section 5.13(a) are in full force and effect and represent the legal, valid and binding obligations of the Company or one of its Subsidiaries party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, except in each case as the same may be limited by 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) none of the Company or any of its Subsidiaries is as of the date of this Agreement in material breach of or material default under any such Contract, (iii) other than past due payments in an amount less than or equal to $300,000, as of the date of this Agreement and to the knowledge of the Company, no other party to any such Contract is in material breach of or material default under such Contract, (iv) as of the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written claim or notice of material breach of or material default under any such Contract, and (v) no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to by the knowledge Company or any Subsidiary of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to excluding the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws effects of general applicability relating to or affecting creditors’ rights or by general equitable principlesconsummation of the Second Merger on the Credit Documents).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Monocle Acquisition Corp), Merger Agreement (Monocle Acquisition Corp)
Contracts; No Defaults. (a) Section 4.13(a) of the Disclosure Letter lists and the Company SELLERS have made available or shall make available by July 15, 2008, to Parent prior to the date hereof copies of each TOG at Acquired Companies’ Premises true, complete and correct copies, of the following Contracts (documents, it being understood that any missing Contract does not materially and all amendments, modifications and supplements thereto) to which any adversely affect the business of the Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):Companies:
(i) each Contract that involves performance of services or delivery of goods or materials by any Contracts with any director, manager Acquired Company of an amount or officer or Affiliate value in excess of the CompanyEuro 100,000.00 each;
(ii) each lease, license, and other Contract affecting any Contracts evidencingleasehold or other interest in, governing any real or relating personal property that involves the payment by or to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan DocumentsEuro 100,000.00;
(iii) each licensing agreement or other Contract of any Contracts that reflect transactionsAcquired Company with respect to any Intellectual Property Asset, other than in including agreements with current or former employees, consultants, or contractors regarding the ordinary course appropriation or the non-disclosure of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000Intellectual Property Asset;
(iv) except for the Loan Documentseach collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees and any Acquired Company;
(v) each employment Contract between any Acquired Company with an employee, the Franchise Agreementsagent, the Management Agreement Documents consultant and/or manager of such Acquired Company;
(vi) each joint venture, partnership, and Organization Documentsother Contract involving a sharing of profits, losses, costs, or liabilities by any Contracts Acquired Company with any other Person;
(vii) each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any either of their Affiliates, the SELLERS or to limit the freedom discretion of any Acquired Company or any either of their Affiliates the SELLERS to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale plan or transfer commitment or arrangement of any securitiesAcquired Company, (B) written or oral, providing any Person with any preemptive rightfor bonuses, right of participationpensions, right of maintenance deferred compensation, retirement payments, profit sharing or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitieslike;
(ix) indebtedness for borrowed money by any Contracts relating to any currency hedgingAcquired Company;
(x) each power of attorney that is currently effective and outstanding with any Contracts containing “standstill” or similar provisionsAcquired Company;
(xi) each Contract for capital expenditures with any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligationsAcquired Company, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course excess of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired CompaniesEuro100,000.00;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactioneach Government Contract;
(xiii) relating each Contract whereby any individual purports to collective bargaining release or other agreement or understanding with a labor union or labor organization;hold harmless any Acquired Company from any claims; and
(xiv) any Contracts relating to the sale other Contract or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve commitment which calls for the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, Company in any such case, having a value twelve (12) month period of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractat least Euro 100,000.00.”
(b) Except as would notset forth in Attachment 3.17 to this Agreement, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the SELLERS has acquired nor has rights to acquire any rights under, and neither of the SELLERS has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Companies Company; and
(c) Except as set forth in Attachment 3.17 to this Agreement, to the Knowledge of the two major shareholders among the SELLERS, each Contract identified or required to be identified in Attachment 3.16 to this Agreement is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Attachment 3.17 to this Agreement:
(i) each Acquired Company is in compliance with all material applicable terms and requirements of each Contract under which such Acquired Company has received or had any written claim obligation or liability or by which such Acquired Company or any of default under the assets owned or used by any such Material Contract and Acquired Company is or was bound;
(Bii) to the knowledge Knowledge of the two major shareholders among the SELLERS, each other person that has any obligation or liability under any Contract under which an Acquired Company Parties: (i) none of the Acquired Companies is and no other party has any material rights is in breach or violation of, or default under, any Material full compliance in all material respects with all applicable terms and requirements of such Contract, ; and
(iiiii) no event has occurred which would result in a breach or violation ofor, or a default by to the Acquired CompaniesKnowledge of the two major shareholders among the SELLERS, under, any Material Contract circumstance exists that (in each case, with or without notice or lapse of time time) may result in a violation or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws breach of general applicability relating to or affecting creditors’ rights or by general equitable principlesany Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (O'Gara Group, Inc.), Stock Purchase Agreement (O'Gara Group, Inc.)
Contracts; No Defaults. (a) Section Schedule 4.13(a) contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the Disclosure Letter lists and date hereof, the Company made available to Parent prior to the date hereof copies or one or more of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which any of their respective assets or properties are bound. True, correct and complete copies of the Contracts listed or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1required to be listed on Schedule 4.13(a) will be fully performed and satisfied on have been provided to or prior made available to the Closing, (2) is a Ground Lease Acquiror or (3) is an Organizational Document):its Representatives.
(i) any Contracts Contract with any director, manager an employee or officer or Affiliate independent contractor of the CompanyCompany or any of its Subsidiaries who resides primarily in the United States which, upon the consummation of the transactions contemplated by this Agreement, will (either alone or upon the occurrence of any additional acts or events) result in any material payment or benefits (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any rights to any material payment or benefits, from the Company or any of its Subsidiaries;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreementseach employment, severance, retention, change in control or termination other Contract (excluding customary form offer letters and other standard form agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) with any employee or potential liability other individual independent contractor of the Acquired Companies under Company or any purchase price adjustment thatof its Subsidiaries who receives annual base cash salary of $150,000 or more;
(iii) each collective bargaining agreement;
(iv) any Contract pursuant to which the Company or any of its Subsidiaries licenses material Intellectual Property owned by the Company or any of its Subsidiaries to any Person or licenses Intellectual Property from any Person that is material to the business of the Company and its Subsidiaries, taken as a whole, in each case, other than (A) click-wrap, shrink-wrap or similar licenses and (B) any other licenses for Software that is commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year;
(v) any Contract that restricts in any material respect, or contains any material limitations on, the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic territory;
(vi) any Contract under which the Company or any of its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness, (B) granted a Lien on its assets, whether tangible or intangible, to secure any Indebtedness or (C) extended credit to any Person (other than (1) intercompany loans and advances and (2) customer payment terms in the ordinary course of business), in each case in this clause (C), in an amount in excess of $150,000 of committed credit;
(vii) each Contract entered into in connection with a completed material acquisition or disposition by the Company or any of its Subsidiaries since January 1, 2019 of any Person or any business organization, division or business of any Person (including through merger or consolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person, division or business or by any other manner);
(viii) any Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $150,000 or, together with all related Contracts, in excess of $250,000, in each case, other than (A) sales or purchases in the ordinary course of business consistent with past practice and (B) sales of obsolete equipment;
(ix) any Contract under which the Company or its Subsidiaries is lessee of or holds or operates, in each case, any tangible property (other than real property), owned by any other Person, except for any lease or agreement under which the aggregate annual rental payments do not exceed $150,000;
(x) any Contract not disclosed pursuant to any other clause under this Section 4.13(a) and the performance of which requires either (A) annual payments to or from the Company or its Subsidiaries in excess of $150,000 or (B) aggregate payments to or from any the Company or its Subsidiaries in excess of $250,000 over the life of the agreement and, in each case, which are not terminable by the Company or its Subsidiaries without penalty upon less than thirty (30) days’ prior written notice;
(xi) any Contract with any Governmental Authority;
(xii) other than any offer letter or employment agreement set forth on Schedule 4.14(a), any Contract between the Company or any of its Subsidiaries, on the one hand, and any of Company Stockholders, on the other hand, that will not be terminated at or prior to the Closing; and
(xiii) any Contract establishing any joint venture, partnership, strategic alliance or other collaboration that is material to the business of the Company and its Subsidiaries, taken as a whole.
(b) Except for any Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, with respect to any Contract of the type described in Section 4.13(a), whether or not set forth on Schedule 4.13(a), (i) such Contracts are in full force and effect and represent the legal, valid and binding obligations of the Company or its Subsidiaries party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, and, to the knowledge of the Company, are enforceable by the Company or its Subsidiaries to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law), (ii) none of the Company, its Subsidiaries or, to the knowledge of the Company, any other party thereto is in material breach of or material default under (or would be in material breach of or material default under but for the existence of a cure period) any such Contract, (iii) since January 1, 2019, neither the Company nor any of its Subsidiaries has received any written or, to the knowledge of the Company, oral claim or notice of material breach of or material default under any such Contract, (iv) to the knowledge of the Company, no event has occurred that, individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or any of its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) ), and (iiiv) each Material since January 1, 2019, neither the Company nor any of its Subsidiaries has received written notice from any other party to any such Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect that such party intends to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to terminate or affecting creditors’ rights or by general equitable principlesnot renew any such Contract.
Appears in 2 contracts
Sources: Merger Agreement (American Battery Materials, Inc.), Merger Agreement (Seaport Global Acquisition II Corp.)
Contracts; No Defaults. (a) Section 4.13(aSchedule 4.12(a) contains a listing of all Contracts (other than purchase orders) described in clauses (i) through (ix) below to which, as of the Disclosure Letter lists and date of this Agreement, the Company made available to Parent prior to the date hereof copies or one or more of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which any of their respective properties or assets are bound (notwithstanding anything hereinbound. True, “Material Contract” shall not include any Contract that (1correct and complete copies of the Contracts listed on Schedule 4.12(a) will be fully performed and satisfied on have been delivered to or prior made available to the Closing, (2) is a Ground Lease Acquiror or (3) is an Organizational Document):its agents or representatives.
(i) any Contracts with any director, manager or officer or Affiliate of the Companyeach employee collective bargaining Contract;
(ii) any Contracts evidencing, governing or relating Contract pursuant to Debt which the Company or any guarantee by any Acquired of its Subsidiaries (A) licenses from a third party Intellectual Property that is material to the business of the Company of any other Person in excess of $750,000and its Subsidiaries, taken as a whole, other than click-wrap, shrink-wrap and off-the-shelf software licenses, and any other software licenses that are commercially available on reasonable terms to the Loan Documentspublic generally with license, maintenance, support and other fees less than $1,000,000 per year or (B) licenses to a third party to use Owned Intellectual Property or Owned Company Software (other than any licenses granted to customers, suppliers or service providers in the ordinary course of business);
(iii) any Contracts that reflect transactionsContract which restricts in any material respect or contains any material limitations on the ability of the Company or its Subsidiaries to compete in any line of business or in any geographic territory;
(iv) any Contract under which the Company or its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness, (B) granted a Lien on its assets, whether tangible or intangible, to secure any Indebtedness or (C) extended credit to any Person (other than (1) intercompany loans and advances and (2) customer payment terms in the ordinary course of business, that involve expenditures), in cash or any other form each case of considerationclauses (A), (B) and (C), in an amount in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity 20,000,000 of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projectscommitted credit;
(v) any Contracts that provide an obligation to fund principal transaction Contract entered into in connection with a completed acquisition or make disposition by the Company or its Subsidiaries since December 31, 2016 involving consideration in excess of $25,000,000 of any investment in Person or other business organization, division or business of any Person (whether in including through merger or consolidation or the form purchase of a loan, capital contribution controlling equity interest in or otherwise) any Subsidiary of any substantially all of the Acquired Companies, assets of such Person or by any other Person (other than any Organizational Documentmanner);
(vi) any Contracts providing Contract with outstanding obligations for any indemnification obligations the sale or purchase of personal property, fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in effect for any current excess of $5,000,000 or, together with all related Contracts, in excess of $25,000,000, in each case, other than sales or former officer, director, trustee or employeepurchases in the ordinary course of business consistent with past practices and sales of obsolete equipment;
(vii) any Contracts evidencing Contract not made in the ordinary course of business and not disclosed pursuant to any employment agreementsother clause under this Section 4.12 and expected to result in revenue or require expenditures in excess of $5,000,000 in the calendar year ended December 31, severance, change in control 2018 or termination agreements with any officer, director, trustee or employeesubsequent calendar year;
(viii) any Contracts (A) relating Contract between the Company or its Subsidiaries, on the one hand, and any of Company’s shareholders, on the other hand, that will not be terminated at or prior to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;Closing; and
(ix) any Contract establishing any joint venture, partnership, strategic alliance or other collaboration that is material to the business of the Company and its Subsidiaries taken as a whole.
(b) Except for any Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, with respect to any Contract of the type described in Section 4.12(a), whether or not set forth on Schedule 4.12(a), (i) such Contracts are in full force and effect and represent the legal, valid and binding obligations of the Company or its Subsidiaries party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, and, to the knowledge of the Company, are enforceable by the Company or its Subsidiaries to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law), (ii) none of the Company, its Subsidiaries or, to the knowledge of the Company, any currency hedging;
other party thereto is in material breach of or material default (xor would be in material breach, violation or default but for the existence of a cure period) under any Contracts containing “standstill” such Contract, (iii) since December 31, 2017, neither the Company nor its Subsidiaries have received any written or, to the knowledge of the Company, oral claim or similar provisions;
notice of material breach of or material default under any such Contract, (xi) any Contracts (Aiv) to which any Governmental Body is a party or under which any Governmental Body the knowledge of the Company, no event has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would notoccurred which, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or together with other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each caseevents, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iiiv) each Material since December 31, 2017 through the date hereof, neither the Company nor its Subsidiaries have received written notice from any other party to any such Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect that such party intends to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to terminate or affecting creditors’ rights or by general equitable principlesnot renew any such Contract.
Appears in 2 contracts
Sources: Merger Agreement (Mosaic Acquisition Corp.), Merger Agreement (APX Group Holdings, Inc.)
Contracts; No Defaults. (a) Section 4.13(aSchedule 5.12(a) contains a listing of all Contracts (other than purchase orders) described in clauses (i) through (xi) below to which, as of the Disclosure Letter lists and date of this Agreement, the Company made available to Parent prior to the date hereof copies or one or more of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which any of their respective properties or assets are bound (notwithstanding anything hereinbound. True, “Material Contract” shall not include any Contract that (1correct and complete copies of the Contracts listed on Schedule 5.12(a) will be fully performed and satisfied on have been delivered to or prior made available to the Closing, (2) is a Ground Lease Acquiror or (3) is an Organizational Document):its agents or representatives.
(i) any Contracts Contract with any director, manager an employee or officer or Affiliate independent contractor of the CompanyCompany or its Subsidiaries who resides primarily in the United States which, upon the consummation of the transactions contemplated by this Agreement, will (either alone or upon the occurrence of any additional acts or events) result in any payment or benefits (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any rights to any payment or benefits, from the Company or its Subsidiaries;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreementseach employment, severance, retention, change in control or termination agreements with any officer, director, trustee or employee;
other Contract (viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts excluding customary form offer letters entered into in the ordinary course of business) with any employee or potential liability other individual service provider of the Acquired Companies Company or its Subsidiaries that provides for annual base cash compensation in excess of $250,000;
(iii) each employee collective bargaining Contract;
(iv) any Contract pursuant to which the Company or its Subsidiaries licenses from a third party Intellectual Property that is material to the business of the Company and its Subsidiaries, taken as a whole, other than click-wrap, shrink-wrap and off-the-shelf software licenses, and any other software licenses that are commercially available on reasonable terms to the public generally with license, maintenance, support and other fees less than $100,000 per year;
(v) any Contract which restricts in any material respect or contains any material limitations on the ability of the Company or its Subsidiaries to compete in any line of business or in any geographic territory;
(vi) any Contract under any purchase price adjustment thatwhich the Company or its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness, in each case, in an amount in excess of $2,500,000 of committed credit, (B) granted a Lien on its assets, whether tangible or intangible, to secure any Indebtedness, or (C) extended credit to any Person (other than (1) intercompany loans and advances and (2) customer payment terms in the ordinary course of business), in each case, in an amount in excess of $2,500,000 of committed credit;
(vii) other than the Shareholders Agreement or any employment agreement set forth on Schedule 5.13(a), any Contract between the Company or its Subsidiaries, on the one hand, and any Cision Owner or their Affiliates, on the other hand;
(viii) each Contract entered into in connection with a completed material acquisition by the Company or its Subsidiaries since April 14, 2014 of any Person or other business organization, division or business of any Person (including through merger or consolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person or by any other manner);
(ix) any Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $500,000 or, together with all related Contracts, in excess of $1,000,000, in each case, other than sales or purchases in the ordinary course of business consistent with past practices and sales of obsolete equipment;
(x) any Contract not made in the ordinary course of business and not disclosed pursuant to any other clause under this Section 5.12(a) and expected to result in revenue or require expenditures in excess of $1,000,000 in any calendar year or which resulted in revenue or expenditures during the fiscal year ended December 31, 2016, in excess of $1,000,000; and
(xi) any Contract establishing any joint venture, partnership, strategic alliance or other collaboration that is material to the business of the Company and its Subsidiaries taken as a whole.
(b) Except for any Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, with respect to any Contract of the type described in Section 5.12(a), whether or not set forth on Schedule 5.12(a), (i) such Contracts are in full force and effect and represent the legal, valid and binding obligations of the Company or its Subsidiaries party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, and, to the knowledge of the Company, are enforceable by the Company or its Subsidiaries to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law), (ii) none of the Company, its Subsidiaries or, to the knowledge of the Company, any other party thereto is in material breach of or material default (or would be in material breach, violation or default but for the existence of a cure period) under any such Contract, (iii) since December 31, 2015, neither the Company nor its Subsidiaries has received any written, or to the knowledge of the Company, oral claim or notice of material breach of or material default under any such Contract, (iv) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) ), and (iiiv) each Material since December 31, 2015, neither the Company nor its Subsidiaries has received written notice from any other party to any such Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect that such party intends to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to terminate or affecting creditors’ rights or by general equitable principlesnot renew any such Contract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Capitol Acquisition Corp. III)
Contracts; No Defaults. (a) Section 4.13(a3.17(a) of the Seller Disclosure Letter lists Schedule contains a complete and the Company accurate list in all material respects, and Sellers have made available to Parent prior to the date hereof copies of each of the following Contracts (TOG true, complete and all amendmentscorrect copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) Contracts between any Contracts with any director, manager or officer or Affiliate of the CompanyAcquired Companies on the one hand and customers or suppliers of the Acquired Companies on the other hand that represent, at a minimum, eighty-five percent (85%) in the aggregate of each of (y) the total value of all services and goods received by the Acquired Companies since January 1, 2007 and (z) all services performed and goods delivered by the Acquired Companies since January 1, 2007;
(ii) each lease, license, and other Contract affecting any Contracts evidencingleasehold or other interest in, governing any real or relating personal property that involves the payment by or to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents50,000 annually;
(iii) each licensing agreement or other Contract of any Contracts that reflect transactionsAcquired Company with respect to any material Intellectual Property Asset, other than in including standard agreements with current or former employees, consultants, or contractors regarding the ordinary course appropriation or the non-disclosure of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000Intellectual Property Asset;
(iv) except for the Loan Documentseach collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees and any Acquired Company;
(v) each employment Contract between any Acquired Company with an employee, the Franchise Agreementsagent, the Management Agreement Documents consultant and/or manager of such Acquired Company that involves payments in excess of $50,000 annually;
(vi) each joint venture, partnership, and Organization Documentsother Contract involving a sharing of profits, losses, costs, or liabilities by any Contracts Acquired Company with any other Person;
(vii) each Contract containing covenants that purport in any way purport material respect to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(vviii) each Contract containing covenants that purport in any Contracts that provide an obligation material respect to fund restrict the business activity of either of the Sellers with respect to any conduct, activity, or make any investment in (whether in practice relating to the form of a loan, capital contribution or otherwise) any Subsidiary of any business of the Acquired Companies, except for the restrictions contained in this Agreement or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesEmployment Agreements;
(ix) any Contracts relating to plan or commitment or arrangement of any currency hedgingAcquired Company, written or oral, providing for bonuses, pensions, deferred compensation, retirement payments, profit sharing or the like;
(x) each Contract evidencing indebtedness for borrowed money by any Contracts containing “standstill” or similar provisionsAcquired Company;
(xi) each power of attorney that is currently effective and outstanding with any Contracts Acquired Company;
(Axii) each Contract for capital expenditures in excess of $50,000 annually with respect to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or Acquired Company;
(Bxiii) directly or indirectly benefiting any Governmental Body, each Government Contract (except for those instruments purchase orders and blanket purchasing agreements pursuant to Government Contracts); and
(xiv) any other Contract or documents entered into by the Acquired Companies commitment not made in the ordinary course of their respective businesses, the absence of business which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve calls for the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, Company in any such case, having a value twelve (12) month period of more than at least $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract75,000.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect set forth on the Acquired Companies, (ASection 3.17(b) none of the Disclosure Schedule, neither of the Sellers has acquired nor has rights to acquire any rights under, and neither of the Sellers or affiliate of either of the Sellers has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Companies Company.
(c) Except as set forth on Section 3.17(c) of the Seller Disclosure Schedule:
(i) Each Acquired Company is in compliance with all material applicable terms and requirements of each Contract identified or required to be identified on Section 3.17(a) of the Seller Disclosure Schedule under which such Acquired Company has received or had any written claim obligation or liability or by which such Acquired Company or any of default under the assets owned or used by any such Material Contract and Acquired Company is or was bound;
(Bii) to the knowledge Knowledge of Sellers, each other Person that has or had any obligation or liability under any Contract identified or required to be identified on Section 3.17(a) of the Seller Disclosure Schedule under which an Acquired Company Parties: (i) none of the Acquired Companies is and no other party has or had any rights is in breach or violation offull compliance in all material respects with all applicable terms and requirements of such Contract; and
(iii) to the Knowledge of Sellers, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract circumstance exists that (in each case, with or without notice or of lapse of time time) may result in a violation or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws breach of general applicability relating to or affecting creditors’ rights or by general equitable principlesany Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement (O'Gara Group, Inc.), Stock Purchase Agreement (O'Gara Group, Inc.)
Contracts; No Defaults. (a) Section 4.13(aPart 2.17(a) of the Company Disclosure Letter Schedule lists and as of the date hereof, and, except to the extent filed as an exhibit to a Company SEC Report, the Company has made available to Parent prior to the date hereof copies of each of the following Acquired Corporation Contracts (and all amendments, modifications and supplements thereto) including any amendment to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):foregoing)
(i) any Contracts described in paragraph (b)(10) of Item 601 of Regulation S-K of the SEC(other than those agreements and arrangements described in Item (b)(10)(iii);
(ii) with any director, manager or officer or Affiliate of the Company;
(iiiii) any Contracts evidencing, governing or relating to Debt indebtedness for borrowed money,
(iv) not entered into in the Ordinary Course of Business that involves expenditures or any guarantee by any Acquired Company of any other Person receipts in excess of $750,000, other than the Loan Documents100,000;
(iiiv) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or purports to limit the freedom of any Acquired Company Corporation or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee[Intentionally omitted];
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with providing for indemnification of any officer, director, trustee employee or employeeagent;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities securities, or (C) providing any of the Acquired Companies Corporations with any right of first refusal with respect to, or right to repurchase or redeem, any securities, except for Contracts evidencing Company Options, Company RSU Awards, or employment Contracts entered into in the Ordinary Course of Business which contemplate the issuance of Company Options or Company RSU Awards;
(ix) incorporating or relating to any Contracts guaranty, any warranty or any indemnity or similar obligation, except for materially unaltered indemnification provisions contained in standard form sales or other agreements with customers, end users or distributors arising in the Ordinary Course of Business;
(x) relating to any currency hedging;
(xxi) any Contracts imposing or containing “standstill” or similar provisions;
(xixii) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body (including any subcontract or other Contract between any Acquired Corporation and any contractor or subcontractor to any Governmental Body);
(xiii) except as set forth in Section 2.17(a)(xiv), except for those instruments contemplating or documents entered into by involving the Acquired Companies payment or delivery of cash or other consideration in the ordinary course an amount or having a value in excess of their respective businesses, the absence of which would not, individually or $250,000 in the aggregate, or contemplating or involving the performance of services having a value in excess of $250,000 in the aggregate;
(xiv) with each Top Distributor, Top Reseller, Top OEM and Top Supplier; and
(xv) any other Contract, if a breach of such Contract would reasonably be expected to have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000Corporations. Each of the foregoing is a “Material Contract.”
(b) Except as would notAssuming the due execution and delivery of such Material Contract by the counterparties thereto, each Material Contract is valid and in full force and effect, and is enforceable in accordance with its terms, subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to rights of creditors generally and (ii) rules of law and equity governing specific performance, injunctive relief and other equitable remedies.
(i) none of the Acquired Corporations has violated or breached, or committed any default under, any Acquired Corporation Contract, except for violations, breaches and defaults that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired CompaniesCorporations;
(ii) to the Knowledge of the Company, no other Person has violated or breached, or committed any default under, any Acquired Corporation Contract, except for violations, breaches and defaults that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired Corporations;
(iii) to the Knowledge of the Company, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Acquired Corporation Contract, (B) give any Person the right to declare a default or exercise any remedy under any Acquired Corporation Contract, (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Acquired Corporation Contract, (D) give any Person the right to accelerate the maturity or performance of any Material Contract, (E) result in the disclosure, release or delivery of any Acquired Corporation Source Code, or (F) give any Person the right to cancel, terminate or modify any Material Contract, except in each such case for defaults, acceleration rights, termination rights and other rights that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired Corporations; and
(iv) since April 27, 2008, none of the Acquired Companies Corporations has received any written claim of default under notice or other communication regarding any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in actual or possible violation or breach or violation of, or default under, any Material Acquired Corporation Contract, (ii) no event has occurred which except in each such case for defaults, acceleration rights, termination rights and other rights that have not had and would result in not reasonably be expected to have a breach or violation of, or a default by Material Adverse Effect on the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesCorporations.
Appears in 2 contracts
Sources: Merger Agreement (On Semiconductor Corp), Merger Agreement (Catalyst Semiconductor Inc)
Contracts; No Defaults. (a) Section 4.13(a) of the Disclosure Letter lists and the Company made available Subject to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any disclosure of confidential information, Schedule 2.5 contains a list of all Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced described in clauses (i) through (xxiiix) of this Section 4.13(a)below to which Seller is a party, other than any such Contract (a) which will be terminated at or prior to the Closing or (b) as to which neither Purchaser nor any of its Subsidiaries will have any liability following the Closing, to the extent that such Contracts relate to the operation of the Business. True, correct and complete copies of contracts referred to in clauses (i)-(ix) below have been delivered to or made available to Purchaser or its agents or representatives.
(i) Each Contract providing for the performance of services or the delivery of goods and/or materials by its terms calls or to Seller entered into outside the ordinary course of business of Seller and which provides for consideration to be furnished to or by Seller of value in excess of $250,000 in any one year;
(ii) Each note, debenture, other evidence of indebtedness, guarantee, loan, credit or financing agreement or instrument or other contract for money borrowed, including any agreement or commitment for future loans, credit or financing;
(iii) Each lease, rental or occupancy agreement involving aggregate payments in excess of $1,000,000. 250,000 in any one year;
(iv) Each material licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of Intellectual Property, other than customary employee, vendor and other non-disclosure agreements;
(v) Each joint venture agreement, partnership agreement or limited liability company agreement;
(vi) Each Contract that limits the foregoing is a “Material Contractright of Seller to compete in any industry or geographic area;
(vii) Each Contract which obligates Seller to clean-up or remediate any environmental contaminants; and
(viii) Each Contract relating to the acquisition or disposition by Seller of any material business.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect set forth on the Acquired CompaniesSchedule 2.5, (Ai) none of the Acquired Companies has received any written claim of default under any Contracts listed pursuant to Section 2.5(a) hereof are in full force and effect, (ii) such Material Contract and (B) Contracts are enforceable against Seller and, to the knowledge of Seller, the Company Parties: other parties thereto, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject to general principles of equity and (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (iiiii) no condition exists or event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each casewhich, with or without notice or lapse of time or both, would constitute a default by Seller under the Contracts listed pursuant to paragraph (a) and (iii) each Material Contract is validof this Section 2.5, binding and enforceable in accordance with its terms and is in full force and effect with respect or, to the Acquired Companiesknowledge of Seller, and to the any other parties party thereto, except as enforceability may be limited by applicable bankruptcywhere the occurrence of such event or existence of any such condition would not have a material adverse effect on the business, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws operations or financial condition of general applicability relating to or affecting creditors’ rights or by general equitable principlesSeller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (UCI Holdco, Inc.), Asset Purchase Agreement (United Components Inc)
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and the Company made available to Parent prior to the date hereof copies contains a listing of each of the following all Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced described in clauses (i) through (xxii) below to which, as of the date of this Agreement, a Group Company is a party or by which it is bound, other than a Company Benefit Plan. True, correct and complete copies of the Contracts listed on Section 4.13(a4.12(a) of the Company Disclosure Letter have previously been delivered to or made available to HCM or its agents or representatives, together with all amendments thereto.
(i) Any Contract with any of the Top Vendors (other than purchase orders, invoices, or statements of work entered into or used in the ordinary course of business consistent with past practice);
(ii) Each note, debenture, other evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract for money borrowed by a Group Company, including any agreement or commitment for future loans, credit or financing, in each case, in excess of MXN$50,000,000;
(iii) any Contract under which by its terms calls any Lien (other than a Permitted Lien) exists that affects any material asset of any Group Company;
(iv) Each Contract for the acquisition of any Person or any business unit thereof or the disposition of any material assets of a Group Company during the Lookback Period, in each case involving payments in excess of $1,000,000. MXN$50,000,000, other than Contracts between the Group Companies;
(v) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property and involves aggregate payments in excess of MXN$50,000,000 in any calendar year;
(vi) Each hotel management agreement;
(vii) Each Contract involving the formation of a (A) joint venture, (B) partnership, or (C) limited liability company (excluding, in the case of clauses (B) and (C), any wholly owned Group Company (other than the Company));
(viii) Contracts (other than non-disclosure agreements, non-solicitation provisions typically included in non-disclosure agreements, employment agreements, employee confidentiality and invention assignment agreements, equity or incentive equity documents and Governing Documents) between Group Companies, on the one hand, and Affiliates of any Group Company (other than any Group Company), the officers and managers (or equivalents) of any Group Company, the members or stockholders of any Group Company, any employee of any Group Company or a member of the immediate family of the foregoing is Persons, on the other hand (collectively, “Affiliate Agreements”);
(ix) Contracts with each current employee or individual consultant or other individual service provider to any Group Company that provide annual base cash compensation (excluding bonus and other benefits) (salario base) in excess of MXN$5,000,000;
(x) Contracts with each employee or individual consultant or other individual service provider to any Group Company that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the transactions contemplated hereby, and Contracts containing a “Material golden parachute” or “key man” or other provision requiring the continuity of one or more shareholders of any Group Company or any director, officer or employee thereof;
(xi) Contracts containing covenants of any Group Company (A) prohibiting or limiting the right of any Group Company to engage in or compete with any Person in any line of business in any material respect or (B) prohibiting or restricting any Group Company’s ability to conduct their business with any Person in any geographic area in any material respect;
(xii) Any collective bargaining (or similar) agreement or Contract between any Group Company, on the one hand, and any labor union or other body representing employees of any Group Company, on the other hand;
(xiii) Each Contract, including license agreements, coexistence agreements, and agreements with covenants not to sue (but not including non-disclosure agreements, incidental trademark licenses incident to marketing or non-exclusive licenses entered into by any Group Company with customers, in each case entered into in the ordinary course of business consistent with past practice) pursuant to which any Group Company (i) grants to a third Person a license, covenant not to sue or other right under any material Company Intellectual Property or (ii) receives from a third Person a license, covenant not to sue or other right under any Intellectual Property that is material to the business of any Group Company (other than Contracts granting nonexclusive rights to use commercially available off-the-shelf software with annual fees of less than MXN$1,000,000 and Open Source Licenses);
(xiv) Each Contract requiring capital expenditures by any Group Company after the date of this Agreement in an amount in excess of MXN$50,000,000 in any calendar year;
(xv) Any Contract that grants to any third Person (A) any “most favored nation rights” or (B) price guarantees for a period greater than one year from the date of this Agreement and requires aggregate future payments to the Group Companies in excess of MXN$50,000,000 in any calendar year;
(xvi) Contracts granting to any Person (other than any Group Company) a right of first refusal, first offer, re-acquisition right, derecho de reversión or similar preferential right to purchase or acquire equity interests in any Group Company or any assets owned by any Group Company;
(xvii) Contracts documenting derivative or hedging or similar transactions;
(xviii) Contracts executed with any Governmental Authorities;
(xix) Any Contract involving payment obligations by any Group Company in excess of MXN$50,000,000 in any calendar year;
(xx) Any Contract that provides for the indemnification or assumption of any liability of any Person by the Company or the Group Companies;
(xxi) Contracts entered into outside the ordinary course of business or that is otherwise material to any Group Company and that is not included in any of the previous paragraphs; and
(xxii) Any outstanding written commitment to enter into any Contract of the type described in the foregoing subsections of this Section 4.12(a).”
(b) Except as would notfor any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, individually all of the Contracts listed or required to be listed pursuant to Section 4.12(a) in the aggregateCompany Disclosure Letter (i) are in full force and effect and (ii) represent the legal, have a Material Adverse Effect on valid and binding obligations of the Acquired CompaniesGroup Company party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to any Group Company, (Ax) the Group Companies have performed in all respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.12(a) and none of the Acquired Group Companies, nor, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract, (y) during the last 24 months, none of the Group Companies has received any written claim or written notice of termination or breach of or default under any such Material Contract (which claim or notice has not been rescinded), and (Bz) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation ofCompany, or default under, any Material Contract, (ii) no event has occurred which individually or together with other events, would reasonably be expected to result in a breach or violation of, of or a default under any such Contract by any Group Company or, to the Acquired Companies, underknowledge of the Company, any Material Contract other party thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 2 contracts
Sources: Business Combination Agreement (HCM Acquisition Corp), Business Combination Agreement (HCM Acquisition Corp)
Contracts; No Defaults. (a) Section 4.13(a) of the Disclosure Letter lists and the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):Schedule 4.24
(i) each contract or arrangement currently in effect involving performance of services or delivery of goods or materials by the Company or any Contracts with of its Subsidiaries of an amount or value in any director, manager or officer or Affiliate fiscal year in excess of the Company$5,000,000;
(ii) each note, debenture, other evidence of indebtedness, guarantee, loan, letter of credit, surety bond or financing agreement or instrument or other contract for money borrowed, including any Contracts evidencingagreement or commitment for future loans, governing credit or relating to Debt financing entered into by the Company or any guarantee by any Acquired Company of any other Person its Subsidiaries evidencing Indebtedness in excess of $750,000500,000, other than individually or in the Loan Documentsaggregate;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other contract or arrangement affecting the ownership of, leasing of, title to, use of, or any Contracts leasehold or other interest in, any real or personal property and involving payments in any fiscal year in excess of $500,000;
(iv) each licensing agreement or other agreement with respect to any material Propriety Right;
(v) each collective bargaining agreement or other agreement to or with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each joint venture agreement, partnership agreement, or limited liability company agreement or other agreement (however named) involving a sharing of profits, losses, costs or liabilities by the Company or any of its Subsidiaries with any other Person;
(vii) each agreement that reflect transactionscommits capital expenditures after the date hereof in an amount in excess of $500,000;
(viii) each written warranty, guaranty or other similar undertaking with respect to contractual performance of a third person extended by the Company or any of its Subsidiaries other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(ivix) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that each contract containing covenants which in any way purport to restrict limit the business activity freedom of any Acquired the Company or any of their Affiliates, its Subsidiaries or to limit any Affiliate of the freedom of any Acquired Company or any of their Affiliates Subsidiary to engage in any line of business business, other than the Business (other than leases that limit the operations or activities of the Company, any of its Subsidiaries or any Affiliate of the Company or any Subsidiary at specific facilities), or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;; and
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents each material contract entered into by the Acquired Companies other than in the ordinary course of their respective businessesbusiness that contains or provides for an express undertaking by the Company or any of its Subsidiaries to be responsible for consequential damages.
(b) Schedule 4.24(a) sets forth the parties to the Contracts, the absence name of which would not, individually or in ---------------- the aggregate, Contract and the date thereof. True and correct copies of each written Contract have a Material Adverse Effect on been made available to the Acquired Companies;Purchasers.
(xiic) Except as set forth on Schedule 4.24(c), each of the Contracts listed ---------------- on Schedule 4.24
(a) (i) is in full force and effect, (ii) represents the ---------------- legally, valid and binding obligations of the Company or the Subsidiary of the Company party thereto and is enforceable against the Company or such Subsidiary in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and general equitable principles), and (iii) to the Knowledge of the Company, represent the legally, valid and binding obligations of the other parties thereto and are enforceable against such parties in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and general equitable principles). Except as set forth on Schedule 4.24(c), and to the ---------------- Knowledge of the Company, no condition exists or event has occurred which, with notice or lapse of time or both, would constitute a material default or a basis for force majeure or the claim of excusable delay or nonperformance under such Contracts.
(d) Except as set forth on Schedule 4.24(d), there are no renegotiations ---------------- of, or, to the Knowledge of the Company, threats to renegotiate any Contracts requiring that material amounts paid or payable to the Company or any of its Subsidiaries under the Acquired Companies give any notice or provide any information to Contracts, with any Person prior having the contractual or statutory right to considering demand or accepting require such renegotiation. To the Knowledge of the Company, neither the Company nor any Acquisition Proposal or similar proposal, or prior to entering into of its Subsidiaries has received any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property written demand for such renegotiation in respect of future or existing transactions (including transactions that have not been consummatedany such Contract. Except as set forth on Schedule -------- 4.24(d), in each case, having value no customer has delivered written notice to the Company asserting that ------- any material adjustments are required to the terms of more than $500,000;any Contracts.
(xve) any Contracts relating to the development Except as specifically noted on Schedule 4.6, no notice, consent or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control ------------ approval of any partnership or joint venture which party to any Contract is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than required in connection with the Franchise Agreementstransactions contemplated hereby.
(f) Except as set forth on Schedule 4.24(f), neither the Management Agreement Documents or the Loan Documents under which Company nor any of ---------------- its Subsidiaries has committed any act or omission which would result in, and there has been, to the Acquired Companies Knowledge of the Company, no occurrence which would give rise to, any material product liability or liability for breach of warranty on the part of the Company or any of its Subsidiaries not fully covered by the Company's insurance or assumed by a third party who the Company reasonably believes has continuing indemnification obligations adequate resources to pay such claims (other than Contracts entered into excluding costs of administering supplier warranty programs incurred in the ordinary course of business) or potential liability of other than liabilities the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract claims relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default been barred by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse applicable statute of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principleslimitations.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Tc Group LLC), Securities Purchase Agreement (Tc Group LLC)
Contracts; No Defaults. (a) Section 4.13(aItem 3.14(a) of the Vanguard Disclosure Letter lists Schedule contains an accurate and complete list, and the Company made available Vanguard Stockholders have delivered to Parent prior to the date hereof copies of each of the following Contracts (TACT accurate and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any directoreach Applicable Contract that involves the payment of money, manager performance of services or officer delivery of goods or Affiliate materials by one or more Vanguard Companies of the Companyan amount or value in excess of $50,000;
(ii) any Contracts evidencing, governing each Applicable Contract that involves performance of services or relating delivery of goods or materials to Debt one or any guarantee by any Acquired Company more Vanguard Companies of any other Person an amount or value in excess of $750,000, other than the Loan Documents50,000;
(iii) any Contracts each Applicable Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, one or more Vanguard Companies in excess of $1,000,00050,000;
(iv) each Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property (except for the Loan Documentspersonal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with a term of less than one year);
(v) each Applicable Contract with any labor union or other employee representative of a group of employees relating to wages, the Franchise Agreementshours and other conditions of employment;
(vi) each Applicable Contract (however named) involving a sharing of profits, the Management Agreement Documents and Organization Documentslosses, costs or liabilities by any Contracts one or more Vanguard Companies with any other Person;
(vii) each Applicable Contract containing covenants that in any way purport to restrict the any Vanguard Company's business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Vanguard Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating each Applicable Contract providing for payments to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing by any Person with any preemptive rightbased on sales, right of participationpurchases or profits, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesother than direct payments for goods;
(ix) each power of attorney of any Contracts relating to any currency hedgingVanguard Company that is currently effective and outstanding;
(x) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Contracts containing “standstill” one or similar provisionsmore Vanguard Companies to be responsible for consequential damages;
(xi) each Applicable Contract for capital expenditures in excess of $50,000;
(xii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by any Contracts one or more Vanguard Companies other than in the Ordinary Course of Business;
(Axiii) any Applicable Contract for the development, modification or enhancement of computer software products;
(xiv) any Applicable Contract that is a license (whether as licensor or licensee), or sublicense, royalty, permit, franchise agreement, including, without limitation, any agreement pursuant to which any Governmental Body Vanguard Company licenses any Intellectual Property Assets or licenses or delivers any of its software or other products and services to any Third Party (other than ordinary course licenses to end-users);
(xv) Applicable Contract that provides for the employment of any officer, employee, consultant or agent or any other type of Contract, commitment or understanding with any officer, employee, consultant or agent which (except as otherwise generally provided by applicable law) is not immediately terminable without cost or other Liability at or at any time after the Closing Date;
(xvi) Applicable Contract that provides for any profit-sharing, bonus, stock option, stock appreciation right, pension, retirement, disability, stock purchase, hospitalization, insurance or similar plan or agreement, formal or informal, providing benefits to any current or former director, officer, employee, agent or consultant;
(xvii) any Applicable Contract that is a party material indenture, mortgage, promissory note, loan agreement, guarantee or other material agreement or commitment for the borrowing of money, for a line of credit or for a leasing transaction of a type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board;
(xviii) each Applicable Contract that is a material agreement, instrument or other arrangement granting or permitting any Encumbrance on any of the properties, assets or rights of any Vanguard Company;
(xix) each Applicable Contract that is a contract or commitment for charitable contributions;
(xx) each Applicable Contract that is an agreement or contract with a "disqualified individual" (as defined in Section 280G(c) of the Code), which could result in a disallowance of the deduction for any "excess parachute payment" (as defined in Section 280G(b)(i) of the Code) under which Section 280G of the Code;
(xxi) each Applicable Contract that restricts any Governmental Body Vanguard Company from engaging in any aspect of its business or competing in any line of business in any geographic area;
(xxii) any other Applicable Contract that is material to any Vanguard Company; and
(xxiii) each amendment, supplement and modification, and each agreement to enter into any such amendment, supplement or modification (whether oral or written), in respect of any of the foregoing.
(b) Except as set forth in Item 3.14(b) of the Vanguard Disclosure Schedule, no Vanguard Stockholder (and no Related Person of any Vanguard Stockholder) has or may acquire any rights under, and no Vanguard Stockholder has or obligationsmay become subject to any obligation or liability under, any Contract that relates to the business or any of the properties or assets owned or used by any Vanguard Company.
(c) To the Knowledge of the Vanguard Companies and the Vanguard Stockholders, no officer, director, agent, employee, consultant or contractor of any Vanguard Company is bound by any Contract that purports to limit the ability of such Person to (i) engage in or continue any conduct, activity or practice relating to the business of any Vanguard Company, or (Bii) directly assign to any Vanguard Company or indirectly benefiting to any Governmental Bodyother Person any rights to any invention, except for those instruments improvement or documents entered into by discovery.
(d) Except as set forth in Item 3.14(d) of the Acquired Companies Vanguard Disclosure Schedule, each Contract identified or required to be identified in Section 3.14(a) of the ordinary course of their respective businessesVanguard Disclosure Schedule is in full force and effect and is valid and enforceable in accordance with its terms.
(e) Except as set forth in Item 3.14(e)of the Vanguard Disclosure Schedule, and other than with regard to any Applicable Contract, the absence termination of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Vanguard Companies:
(i) Each Vanguard Company is in compliance with all applicable terms and requirements of each Contract under which such Vanguard Company has or had any obligation or Liability or by which such Vanguard Company or any of the assets owned or used by such Vanguard Company is or was bound;
(xiiii) each other Person that has or had any Contracts requiring that obligation or Liability under any Contract under which any Vanguard Company has or had any rights is in compliance with all applicable terms and requirements of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionsuch Contract;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (iiiii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract circumstance exists that (in each case, with or without notice or lapse of time or both) may contravene, conflict with or result in a Breach of, or give any Vanguard Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Contract; and
(iv) no Vanguard Company has given to or received from any other Person, any notice or other communication (whether oral or written) regarding any actual, alleged, possible or potential violation or Breach of, or default under, any Contract.
(f) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any Vanguard Company under current or completed Applicable Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(iiig) each Material Each Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect relating to the Acquired Companiesprovision of services to which any Vanguard Company is a party has been entered into in the Ordinary Course of Business of such Vanguard Company and has been entered into without the commission of any act alone or in concert with any other Person, and to the other parties theretoor any consideration having been paid or promised, except as enforceability may that is or would be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws in violation of general applicability relating to or affecting creditors’ rights or by general equitable principlesany Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and contains a listing of all Contracts described in clauses (i) through (xviii) below to which, as of the date of this Agreement, the Company made available to Parent prior to the date hereof copies of each or any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Company’s Subsidiaries is a party or by which any they are bound, other than a Company Benefit Plan. True, correct and complete copies of their respective properties the Contracts listed on Section 4.12(a) of the Company Disclosure Letter have previously been delivered to or assets are bound (notwithstanding anything hereinmade available to Acquiror or its agents or representatives, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):together with all amendments thereto.
(i) any Contracts Any Contract with any director, manager or officer or Affiliate of the CompanyTop Vendors;
(ii) Any Contract that is an agreement with a Governmental Authority, including any Contracts evidencing, governing or relating to Debt Contract whereby the Company or any guarantee by any Acquired Company of any its Subsidiaries is providing benefits to a beneficiary under a Medicare, Medicaid, Federal Employees Health Benefits Program, TRICARE, Military & Family Life Counseling program, Patient Centered Community Care Programs/VA Choice, or other Person in excess of $750,000, other than the Loan Documentsgovernment healthcare program;
(iii) any Contracts Contract that reflect transactionsis a Provider Contract with any of the ten (10) largest Providers as measured in terms of aggregate medical claim payments received from the Company or any of its Subsidiaries during the twelve months ended August 31, 2020, and in each case excluding any retail pharmacy, mail pharmacy or specialty pharmacy agreement;
(iv) Each note, debenture, other than in evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract for money borrowed by the ordinary course Company or any of businessthe Company’s Subsidiaries, that involve expendituresincluding any agreement or commitment for future loans, credit or financing, in cash or any other form of considerationeach case, in excess of $1,000,000500,000;
(ivv) except Each Contract for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity acquisition of any Acquired Person or any business unit thereof or the disposition of any material assets of the Company or any of their Affiliatesits Subsidiaries in the last five (5) years, in each case, involving payments in excess of $500,000 other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;
(vi) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the ownership of, leasing of, title to, use of, or to limit any leasehold or other interest in any real or personal property and involves aggregate payments in excess of $50,000 in any calendar year;
(vii) Each Contract involving the freedom formation of any Acquired a joint venture, partnership, or limited liability company;
(viii) Contracts (other than employment agreements, employee confidentiality and invention assignment agreements, individual consulting or advisor agreements, equity or incentive equity documents and Governing Documents) between the Company and its Subsidiaries, on the one hand, and Affiliates of the Company or any of their Affiliates the Company’s Subsidiaries (other than the Company or any of the Company’s Subsidiaries), the officers and managers (or equivalents) of the Company or any of the Company’s Subsidiaries, the members or stockholders of the Company or any of the Company’s Subsidiaries, any employee of the Company or any of the Company’s Subsidiaries or a member of the immediate family of the foregoing Persons, on the other hand (collectively, “Affiliate Agreements”);
(ix) Contracts with each current employee or individual independent contractor of the Company or its Subsidiaries that provide annual base remuneration (excluding bonus and other benefits) in excess of $250,000;
(x) Contracts in excess of $250,000 with any employee or consultant of the Company or any of the Company’s Subsidiaries that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the transactions contemplated hereby;
(xi) Contracts containing covenants of the Company or any of the Company’s Subsidiaries (A) prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to engage in or compete with any Person in any line of business in any material respect or (B) prohibiting or restricting the Company’s and the Company’s Subsidiaries’ ability to compete conduct their business with any Person or in any geographic area or to hire or retain in any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companiesmaterial respect;
(xii) any Contracts requiring that Any collective bargaining (or similar) agreement or Contract between the Company or any of the Acquired Companies give Company’s Subsidiaries, on one hand, and any notice labor union or provide other body representing employees of the Company or any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposalof the Company’s Subsidiaries, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionon the other hand;
(xiii) relating Each Contract (including license agreements, coexistence agreements, and agreements with covenants not to collective bargaining ▇▇▇, but not including non-disclosure agreements, contractor services agreements, consulting services agreements, incidental trademark licenses incident to marketing, printing or advertising Contracts or ordinary course non-exclusive license agreements to clinical provider end users) pursuant to which the Company or any of the Company’s Subsidiaries (A) grants to a third Person the right to use material Intellectual Property of the Company and its Subsidiaries or (B) is granted by a third Person the right to use Intellectual Property that is material to the business of the Company and its Subsidiaries (other agreement or understanding with a labor union or labor organizationthan Contracts granting nonexclusive rights to use commercially available off-the-shelf software);
(xiv) Each Contract requiring capital expenditures by the Company or any Contracts relating of the Company’s Subsidiaries after the date of this Agreement in an amount in excess of $1,000,000 in any calendar year;
(xv) Any Contract that (A) grants to any third Person any “most favored nation rights” or (B) grants to any third Person price guarantees for a period greater than one year from the date of this Agreement and requires aggregate future payments to the sale Company and its Subsidiaries in excess of $500,000 in any calendar year;
(xvi) Each of the arrangements and agreements described on Section 4.12(a)(xvi) of the Company Disclosure Letter, whether or exchange ofnot in written form (and if in written from, whether or option not executed by the parties thereto as of the date of this Agreement);
(xvii) Contracts granting to sell any Person (other than the Company or exchangeits Subsidiaries) a right of first refusal, any real property, first offer or to the purchase or exchange of, or option similar preferential right to purchase or exchangeacquire equity interests in the Company or any of the Company’s Subsidiaries; and
(xviii) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xvii) of this Section 4.12(a).
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, any real property all of the Contracts listed pursuant to Section 4.12(a) in respect the Company Disclosure Letter are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of future the Company or existing transactions (including transactions that have not been consummated)the Subsidiary of the Company party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, having value where the occurrence of more than $500,000;
(xv) any Contracts relating such breach or default or failure to perform would not be material to the development or construction ofCompany and its Subsidiaries, or additions or expansions totaken as a whole, any real property that would involve (x) the expenditure Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any them to date under such Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwiselisted pursuant to Section 4.12(a), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating and neither the Company, the Company’s Subsidiaries, nor, to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary knowledge of the Company;
, any other party thereto is in breach of or default under any such Contract, (xxy) any Contracts other than in connection with during the Franchise Agreementslast twelve (12) months, neither the Management Agreement Documents or the Loan Documents under which Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability knowledge of the Acquired Companies under any purchase price adjustment thatCompany, in each caseno event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Sources: Merger Agreement (Social Capital Hedosophia Holdings Corp. III)
Contracts; No Defaults. (a) Section 4.13(aPart 2.15(a) of the Company Disclosure Letter lists Schedule contains a complete and the Company made available to Parent prior to the date hereof copies of each correct list of the following Contracts (written and, to the Knowledge of the Company, oral contracts and all amendments, modifications and supplements thereto) agreements to which Company or any Acquired Company of its Subsidiaries is a party party, other than contracts with Parent, PSMX LLC and Kelta Logistics LLC (collectively, whether or by which any of their respective properties or assets are bound (notwithstanding anything hereinnot so listed, the “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
Contracts”): (i) all contracts and agreements, including the purchase or sale of assets (other than relating to purchases and sales of inventory in the ordinary course of business) which involve or are reasonably expected to involve aggregate payments or expenditures by or to Company or any Contracts with any directorof its Subsidiaries during the fiscal year ending December 31, manager or officer or Affiliate 2012 in excess of the Company;
$100,000; (ii) all Company indebtedness (other than guarantees by way of endorsement or negotiable instruments in the ordinary course of business) and all mortgages, security agreements, capital leases or similar agreements, in each case in excess of $50,000 or that creates an Encumbrance other than a Permitted Lien on any Contracts evidencing, governing or relating to Debt material asset of the Company or any guarantee Company Subsidiary; (iii) all contracts and agreements containing covenants not to compete (A) binding on Company or any of its Subsidiaries or (B) restricting other Persons for the benefit of Company or any of its Subsidiaries or (C) which otherwise restrict competition granted by Company or any Acquired of its Subsidiaries in favor of a third Person; (iv) all contracts and agreements granting to any Person an exclusive right to manufacture, distribute or sell any Company product in any geographical region, as to any customer or as to any market (v) contracts and agreements under which Company or any of its Subsidiaries is obligated to indemnify any Person other than (A) the Company’s and its Subsidiaries’ respective Organizational Documents and (B) other agreements entered into in the ordinary course of business; (vi) contracts and agreements to loan money or extend credit to any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions20,000, other than in the ordinary course of business; (vii) joint venture, that involve expenditurespartnership agreements or similar arrangements or contracts involving a sharing of profits, in cash losses, business or opportunities with any other form Person; (viii) all other contracts not otherwise covered in clauses (i) – (vii) of consideration, this Section 2.15(a) which are material contracts (as defined in excess Item 601(b)(10) of $1,000,000;
Regulation S-K of the Exchange Act) to be performed after the date of this Agreement; and (ivix) except all contracts which are shareholder rights agreements or which otherwise provide for the Loan Documentsissuance of any securities in respect of this Agreement or the Merger; and (x) all contracts and agreements which, upon or as a result of the consummation of any of the Contemplated Transactions, will (either alone or upon the occurrence of any additional acts or events, including the notice or the passage of time) result in any material payment or benefit (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any right to any material payment or benefits, from Parent, Merger Sub, the Franchise Agreements, Company or the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company Surviving Corporation or any of their Affiliates, or respective Subsidiaries to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee consultant or employee;employee of any of the foregoing.
(viiib) With respect to the Material Contracts, (i) such Material Contracts are in full force and effect and are valid, binding and enforceable against Company or its Subsidiaries, as applicable, and, to the Knowledge of Company, each other party thereto, except as such enforcement may be limited by applicable bankruptcy, insolvency, moratorium, or other similar Legal Requirement affecting the enforcement of creditors’ rights generally, and subject to general principles of equity (whether considered in a proceeding whether in equity or at law), and (ii) Company and its Subsidiaries, and, to the Knowledge of Company, each other party thereto, have complied in all material respects with all respective covenants and provisions of the Material Contracts.
(c) Except to the extent set forth in Part 2.15(c) of the Company Disclosure Schedule, there are no transactions, agreements, arrangements or understandings between Company or any of its Subsidiaries, on the one hand, and Company’s directors, officers, Affiliates (other than wholly-owned Subsidiaries of Company) or other Persons, on the other hand.
(d) There are no contractual restrictions in the Material Contracts that prohibit Company or any of its Subsidiaries from transferring cash (or cash equivalents) between accounts outside of and inside the United States or that limit Company’s free use of such cash.
(e) (i) Neither the Company nor any of its Subsidiaries has, to the Knowledge of the Company, violated or breached in any material respect, or committed any material default under, any Material Contract; and, to the Knowledge of the Company, no other Person has violated or breached in any material respect, or committed any material default under, any Material Contract; (ii) to the Knowledge of the Company, no event has occurred that (with or without notice or lapse of time) will or could reasonably be expected to (A) relating to the acquisitionresult in a violation or breach, issuancein any material respect, voting, registration, sale or transfer of any securitiesof the provisions of any Material Contract, (B) providing give any Person with the right to declare a default or exercise any preemptive rightremedy under any Material Contract, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing give any of Person the Acquired Companies with any right of first refusal with respect toto receive or require a material rebate, chargeback, penalty, or change in delivery schedule under any Material Contract, (D) give any Person the right to repurchase accelerate the maturity or redeemperformance of any Material Contract, (E) result in the disclosure, release, or delivery of any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligationsCompany Source Code, or (BF) directly give any Person the right to cancel, terminate, or indirectly benefiting modify in any Governmental Body, except for those instruments or documents entered into by material respect any Material Contract; and (iii) neither the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that Company nor any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies Subsidiaries has received any written claim of default under notice or other written communication regarding any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in actual or possible material violation or breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and contains a listing of all Contracts described in clauses (i) through (xxi) below to which, as of the date of this Agreement, the Company made available to Parent prior to the date hereof copies of each or any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Company’s Subsidiaries is a party or by which any they are bound, other than a Company Benefit Plan. True, correct and complete copies of their respective properties the Contracts listed on Section 4.12(a) of the Company Disclosure Letter have previously been delivered to or assets are bound (notwithstanding anything hereinmade available to Acquiror or its agents or representatives, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):together with all amendments thereto.
(i) any Contracts Any Contract with any director, manager or officer or Affiliate of the CompanyTop Vendors or Top Customers;
(ii) any Contracts evidencingEach mortgage, governing note, debenture, other evidence of Indebtedness, guarantee, pledge, loan, credit or relating to Debt financing agreement or instrument or other Contract for money borrowed by the Company or any guarantee by of the Company’s Subsidiaries or pursuant to which a Lien has been placed on any Acquired material assets or properties (other than Company Intellectual Property) of the Company or any of its Subsidiaries, including any other Person in excess of $750,000agreement or commitment for future loans, other than the Loan Documentscredit or financing;
(iii) Each Contract for the acquisition of any Contracts that reflect transactions, other than property or Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries entered into or consummated in the ordinary course of business, that involve expenditureslast two (2) years, in cash or any other form of considerationeach case, involving payments in excess of $1,000,00010,000,000 other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;
(iv) except for Each Contract related to the Loan Documentsformation, governance or operation of a joint venture, partnership or similar arrangement or the Franchise Agreements, sharing of profits or revenues therefrom or pursuant to which the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage its Subsidiaries has an ownership interest in any line of business or to compete with other Person (excluding any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval wholly owned Subsidiary of the Acquired Companies’ development projectsCompany);
(v) any Contracts (other than employment agreements, employee confidentiality and invention assignment agreements, equity or incentive equity documents that provide an obligation to fund are Company Benefit Plans and Governing Documents) between the Company and its Subsidiaries, on the one hand, and Affiliates of the Company or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person Company’s Subsidiaries (other than the Company or any Organizational Documentof the Company’s Subsidiaries), the officers and managers (or equivalents) of the Company or any of the Company’s Subsidiaries, the members or stockholders of the Company or any of the Company’s Subsidiaries, any employee of the Company or any of the Company’s Subsidiaries or a member of the immediate family of the foregoing Persons, on the other hand (collectively, “Affiliate Agreements”);
(vi) Contracts with any Contracts providing employee of the Company or its Subsidiaries that provides for any indemnification obligations annual base compensation in effect for any current or former officer, director, trustee or employeeexcess of $250,000;
(vii) Contracts under which any Contracts evidencing of the benefits thereunder, to any employment agreementsPerson party thereto, severanceshall be increased, change in control or termination agreements with the vesting of benefits of which shall be accelerated, by the consummation of the Transactions or the value of any officer, director, trustee or employeeof the benefits of which shall be calculated on the basis of any of the Transactions;
(viii) Contracts containing covenants of the Company or any Contracts of the Company’s Subsidiaries (A) relating prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to the acquisition, issuance, voting, registration, sale engage in or transfer compete with any Person in any line of business in any securities, material respect or (B) providing any Person with any preemptive right, right of participation, right of maintenance prohibiting or any similar right with respect to any securities restricting the Company’s or (C) providing any of the Acquired Companies Company’s Subsidiaries’ ability to conduct their business with any right of first refusal with respect to, or right to repurchase or redeem, Person in any securitiesgeographic area in any material respect;
(ix) Any collective bargaining (or similar) agreement or Contract between the Company or any Contracts relating to of the Company’s Subsidiaries, on one hand, and any currency hedginglabor union or other body representing employees of the Company or any of the Company’s Subsidiaries, on the other hand;
(x) Each Contract pursuant to which the Company or any Contracts containing “standstill” of the Company’s Subsidiaries grants a license, sublicense, right, consent or similar provisionsnonassertion under or with respect to any material Company Intellectual Property to any third Person (other than non-exclusive rights granted in the ordinary course of business to customers or service providers acting on Company’s behalf);
(xi) Each Contract pursuant to which a third Person grants to the Company or any Contracts of the Company’s Subsidiaries a license, sublicense, right, consent or nonassertion under or with respect to any Intellectual Property that is material to the business of the Company and its Subsidiaries (other than (A) Contracts granting nonexclusive rights to which any Governmental Body is use commercially available off-the-shelf Software or Software as a party or under which any Governmental Body has any rights or obligations, or service offerings (B) directly Open Source Licenses or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course (C) grants of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating nonexclusive rights incidental to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect purpose of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts commercial contracts entered into in the ordinary course of business);
(xii) Each Contract to which the Company or any of its Subsidiaries is party or bound that involves the creation, development, transfer, assignment, or ownership of any material Company Registered Intellectual Property (other than employee confidentiality and invention assignment agreements entered into in the ordinary course of business consistent with past practice);
(xiii) Each Contract reasonably expected to result in capital expenditures by the Company or any of the Company’s Subsidiaries after the date of this Agreement in an amount in excess of $1,000,000 in any calendar year;
(xiv) Any Contract that (A) grants to any third Person any “most favored nation rights”, or (B) grants to any third Person price guarantees and is reasonably expected to result in aggregate future payments to the Company and its Subsidiaries in excess of $10,000,000 in any calendar year;
(xv) Contracts granting to any Person (other than the Company or its Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase or acquire equity interests in, or lease, purchase or acquire any material properties or assets of, the Company or any of the Company’s Subsidiaries;
(xvi) any Contract with any Governmental Authority;
(xvii) Contracts under which the Company or any of its Subsidiaries is lessee of, or holds or operates any personal property owned by any other party, for which the rental exceeds $500,000 in any calendar year;
(xviii) Contracts under which the Company or any of its Subsidiaries is the lessor of or permits any third party to hold or operate any property, real or personal, for which the rental paid by such third party exceeds $500,000 in any calendar year;
(xix) Contracts for third party services relating to the Leased Real Property, for which payment for such services exceed $500,000 in any calendar year;
(xx) settlement or coexistence agreements with respect to any pending or threatened action (a) entered into within twelve (12) months prior to the date of this Agreement, other than settlement agreements for cash only (which has been paid) that does not exceed $200,000 as to such settlement or (b) with respect to which unsatisfied amounts or ongoing obligations remain outstanding; and
(xxi) documents required to be filed with the Proxy Statement/Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2) (4), (9) or potential liability 10 of Regulation S-K under the Securities Act as if the Company was the registrant; and
(xxii) any outstanding offer that, if accepted, would constitute any of the Acquired Companies foregoing.
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, all of the Contracts listed pursuant to Section 4.12(a) in the Company Disclosure Letter are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or the Subsidiary of the Company party thereto, subject to the Enforceability Exceptions and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto, subject to the Enforceability Exceptions. The Company and its Subsidiaries have performed in all material respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.12(a) and neither the Company, the Company’s Subsidiaries, nor, to the knowledge of the Company, any other party thereto is in breach of or default under any purchase price adjustment thatsuch Contract. Neither the Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract. To the knowledge of the Company, in each caseno event has occurred which individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material ). No party to any such Contract that is valida Top Vendor or Top Customer has, binding and enforceable in accordance with within the past 12 months, canceled or terminated its terms and is in full force and effect with respect business with, or, to the Acquired Companiesknowledge of the Company, threatened to cancel, terminate, materially limit or materially and adversely modify its business with, the Company or any of its Subsidiaries nor, to the other parties theretoknowledge of the Company, except has any such Person as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to the date of this Agreement otherwise been involved in or affecting creditors’ rights threatening a material dispute against the Company or by general equitable principlesits Subsidiaries or their respective businesses.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aExcept as set forth on Schedule 3.20(a), Schedule 2.1(d) of the Disclosure Letter lists contains an accurate and the Company made available complete list, and Seller has delivered to Parent prior to the date hereof copies of each of the following Contracts (Buyer accurate and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Seller Contract relating to the FONU2 Business or officer the Assets that involves performance of services or Affiliate delivery of the Companygoods or materials by Seller;
(ii) any Contracts evidencing, governing or each Seller Contract relating to Debt the FONU2 Business or any guarantee by any Acquired Company the Assets that involves performance of any other Person in excess services or delivery of $750,000, other than the Loan Documentsgoods or materials to Seller;
(iii) any Contracts each Seller Contract relating to the FONU2 Business or the Assets that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000Business;
(iv) except for each Seller Contract relating to the Loan DocumentsFONU2 Business or the Assets affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property;
(v) each Seller Contract relating to the Franchise AgreementsFONU2 Business or the Assets with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Seller Contract (however named) relating to the Management Agreement Documents and Organization DocumentsFONU2 Business or the Assets involving a sharing of profits, losses, costs or liabilities by Seller with any Contracts other Person;
(vii) each Seller Contract relating to the FONU2 Business or the Assets containing covenants that in any way purport to restrict the Seller's business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates Seller to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) each Seller Contract relating to the acquisition, issuance, voting, registration, sale FONU2 Business or transfer of any securities, (B) the Assets providing for payments to or by any Person with any preemptive rightbased on sales, right of participationpurchases or profits, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesother than direct payments for goods;
(ix) any Contracts each power of attorney of Seller relating to any currency hedgingthe FONU2 Business or the Assets that is currently effective and outstanding;
(x) any Contracts containing “standstill” each Seller Contract relating to the FONU2 Business or similar provisionsthe Assets entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller to be responsible for consequential damages;
(xi) any Contracts (A) each Seller Contract relating to which any Governmental Body is a party the FONU2 Business or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except the Assets for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companiescapital expenditures;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding each Seller Contract relating to any Acquisition Transaction the FONU2 Business or similar transactionthe Assets not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller relating to collective bargaining the FONU2 Business or the Assets other agreement or understanding with a labor union or labor organization;than in the Ordinary Course of Business; and
(xiv) any Contracts relating to the sale each amendment, supplement and modification (whether oral or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property written) in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would notset forth in Schedule 3.20(b), individually or in and with the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none exception of the Acquired Companies parties to such Contract, no Person has received or may acquire any written claim rights under, and no Person has or may become subject to any obligation or liability under, any Contract that relates to the FONU2 Business or any of default the Assets.
(c) Except as set forth in Schedule 3.20(c):
(i) each Contract identified or required to be identified in Schedule 2.1(d) and which is to be assigned to or assumed by Buyer under this Agreement is in full force and effect and is valid and enforceable in accordance with its terms;
(ii) each Contract identified or required to be identified in Schedule 2.1(d) and which is being assigned to or assumed by Buyer is assignable by Seller to Buyer without the consent of any such Material Contract and other Person; and
(Biii) to the knowledge Knowledge of Seller and the Company Parties: Principal Stockholder, no Contract identified or required to be identified in Schedule 2.1(d) and which is to be assigned to or assumed by Buyer under this Agreement will upon completion or performance thereof have a material adverse affect on the business, assets or condition of Seller or the business to be conducted by Buyer with the Assets.
(d) Except as set forth in Schedule 3.20(d):
(i) none Seller, is, and at all times has been in compliance with all applicable terms and requirements of each Seller Contract which is being assumed by Buyer;
(ii) each other Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is and at all times has been in full compliance with all applicable terms and requirements of such Contract;
(iii) to Seller’s and the Principal Stockholder’s Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with or result in a Breach of, or give Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Seller Contract that is being assigned to or assumed by Buyer;
(iv) to Seller’s and the Principal Stockholder’s Knowledge, no event has occurred or circumstance exists under or by virtue of any Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Acquired Companies is and no Assets; and
(v) Seller has not given to or received from any other party is in breach Person, any notice or other communication (whether oral or written) regarding any actual, alleged, possible or potential violation or Breach of, or default under, any Material Contract, Contract which is being assigned to or assumed by Buyer.
(iie) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate or a default by the Acquired Companies, under, outstanding rights to renegotiate any Material Contract (in each case, with material amounts paid or without notice payable to Seller under current or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect completed Contracts relating to the Acquired Companies, FONU2 Business or the Assets with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(f) Each Contract relating to the other parties theretosale, except as enforceability may be limited design, manufacture or provision of products or services by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability Seller relating to the FONU2 Business or affecting creditors’ rights the Assets has been entered into in the Ordinary Course of Business of Seller and has been entered into without the commission of any act alone or by general equitable principlesin concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Sources: Acquisition Agreement (Zaldiva Inc)
Contracts; No Defaults. (a) Section 4.13(aPart 3.17(a) of the Disclosure Letter lists contains a complete and the Company made available accurate list, and Seller has delivered to Parent prior to the date hereof copies of each of the following Contracts (Buyer true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Applicable Contract that involves performance of services or officer delivery of goods or Affiliate materials by one or more Acquired Companies of the Companyan amount or value in excess of $50,000;
(ii) any Contracts evidencing, governing each Applicable Contract that involves performance of services or relating delivery of goods or materials to Debt one or any guarantee by any more Acquired Company Companies of any other Person an amount or value in excess of $750,000, other than the Loan Documents50,000;
(iii) any Contracts each Applicable Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, one or more Acquired Companies in excess of $1,000,00050,000;
(iv) except for each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of their Affiliates, an Acquired Company or to limit the freedom of any Acquired Company or any Affiliate of their Affiliates an Acquired Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) each Applicable Contract providing for payments to or by any Contracts relating to any currency hedgingPerson based on sales, purchases, or profits, other than direct payments for goods;
(x) any Contracts containing “standstill” or similar provisionseach power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of $50,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies’ office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) to Seller’s Knowledge no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to which the business of any Governmental Body is a party or under which any Governmental Body has any rights or obligationsAcquired Company, or (B) directly assign to any Acquired Company or indirectly benefiting to any Governmental Bodyother Person any rights to any invention, except for those instruments improvement, or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;discovery.
(xiic) Except as set forth in Part 3.17(c) of the Disclosure Letter, to Seller’s Knowledge each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2005 has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any Contracts requiring that obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Companies give any notice Company is or provide any information was bound, except where the failure to any Person prior to considering be in compliance would not have a material adverse effect on the operation or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xxii) to Seller’s Knowledge each other Person that has or had any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents obligation or the Loan Documents liability under any Contract under which an Acquired Company has or had any of the Acquired Companies rights is, and at all times since January 1, 2005 has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment thatbeen, in each case, would reasonably be expected to result in future payments full compliance with all applicable terms and requirements of more than $1,000,000such Contract;
(xxiiii) to Seller’s Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Contract relating Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the settlement maturity or proposed settlement of any Legal Proceedingperformance of, which involves the issuance of equity securities or the payment of an amountto cancel, in any such caseterminate, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documentsor modify, any license, royalty or other Contract concerning material Intellectual PropertyApplicable Contract; and
(xxiiiiv) no Acquired Company has given to or received from any Contract other Person, at any time since January 1, 2005, any notice or other communication (other than Contracts referenced in clauses (iwhether oral or written) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would notregarding any actual, individually alleged, possible, or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in potential violation or breach or violation of, or default under, any Material Contract, .
(iie) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired CompaniesCompanies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, underor any consideration having been paid or promised, that is or would be in violation of any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesLegal Requirement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Allis Chalmers Energy Inc.)
Contracts; No Defaults. (a) Section 4.13(aPart 3.17(a) of the Company Disclosure Letter lists and Schedule lists, and, except to the extent filed in full without redaction as an exhibit to a Filed Company SEC Report, the Company made available has delivered to Parent prior copies of, each Acquired Corporation Contract and other instrument or document (including any amendment to the date hereof copies of each any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Documentfollowing):
(i) any Contracts with any directordescribed in paragraphs (b)(3), manager (b)(4), (b)(9) or officer or Affiliate (b)(10) of Item 601 of Regulation S-K of the CompanySEC;
(ii) with any Contracts director, officer or affiliate of any Acquired Corporation;
(iii) evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documentsindebtedness for borrowed money;
(iiiiv) any Contracts that reflect transactions, other than not entered into in the ordinary course of business, business that involve expenditures, in cash involves expenditures or any other form of consideration, receipts in excess of $1,000,00025,000;
(ivv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport purports to restrict the business activity of any Acquired Company Corporation or any of their Affiliatesaffiliates, or to limit the freedom of any Acquired Company Corporation or any of their Affiliates affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) relating to the employment of, or the performance of services by, any Contracts providing for employee or consultant, or pursuant to which any indemnification obligations in effect for of the Acquired Corporations is or may become obligated to make any severance, termination or similar payment to any current or former officer, employee or director, trustee or employeepursuant to which any of the Acquired Corporations is or may become obligated to make any bonus or similar payment (other than payments constituting base salary) in excess of $10,000 to any current or former employee or director;
(vii) (A) relating to the acquisition, transfer, development, sharing or licensing of any Contracts evidencing Proprietary Rights (except for any employment agreementsContract pursuant to which (1) any Proprietary Right is licensed to any of the Acquired Corporations under any third-party software license generally available to the public, severance, change or (2) any Proprietary Right is licensed by any of the Acquired Corporations to any Person on a nonexclusive basis); or (B) of the type referred to in control or termination agreements with Section 3.9(e);
(viii) providing for indemnification of any officer, director, trustee employee or employeeagent;
(viiiix) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities securities, or (C) providing any of the Acquired Companies Corporations with any right of first refusal with respect to, or right to repurchase or redeem, any securities, except for Contracts evidencing Company Stock Options;
(ixx) incorporating or relating to any guaranty, any warranty or any indemnity or similar obligation, except for Contracts substantially identical to the standard forms of end user licenses previously delivered by the Company to Parent;
(xi) relating to any currency hedging;
(xxii) (A) imposing any Contracts confidentiality obligation on any of the Acquired Corporations or any other Person, or (B) containing “standstill” or similar provisions;
(xixiii) any Contracts except in the ordinary course of business and consistent with past practices (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body (including any subcontract or other Contract between any Acquired Corporation and any contractor or subcontractor to any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies);
(xiixiv) any Contracts requiring that any of the Acquired Companies Corporations give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiiixv) relating to collective bargaining contemplating or involving the payment or delivery of cash or other agreement consideration in an amount or understanding with having a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,0001 million in the aggregate, or contemplating or involving the performance of services having a value in excess of $500,000 in the aggregate;
(xvi) that would reasonably be expected to have a material effect on the business, condition, capitalization, assets, liabilities, operations or financial performance of any Loan Documents;of the Acquired Corporations or on any of the transactions contemplated by this Agreement; and
(xvii) any Contracts for the acquisition or dispositionother Contract, directly or indirectly (by merger or otherwise), if a breach of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, such Contract would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to have a Material Adverse Effect on the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000Acquired Corporations. Each of the foregoing is a “Material Contract.”
(b) Each Material Contract is valid and in full force and effect, and is enforceable in accordance with its terms.
(c) Except as set forth in Part 3.17(c) of the Company Disclosure Schedule: (i) none of the Acquired Corporations has violated or breached, or committed any default under, any Acquired Corporation Contract, except for violations, breaches and defaults that have not had and would not, individually or in the aggregate, not reasonably be expected to have a Material Adverse Effect on the Acquired CompaniesCorporations; and, to the Company’s Knowledge, no other Person has violated or breached, or committed any default under, any Acquired Corporation Contract, except for violations, breaches and defaults that have not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired Corporations; (ii) to the Company’s Knowledge, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will or would reasonably be expected to, (A) result in a violation or breach of any of the provisions of any Acquired Corporation Contract, (B) give any Person the right to declare a default or exercise any remedy under any Acquired Corporation Contract, (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Acquired Corporation Contract, (D) give any Person the right to accelerate the maturity or performance of any Acquired Corporation Contract, (E) result in the disclosure, release or delivery of any Acquired Corporation Source Code, or (F) give any Person the right to cancel, terminate or modify any Acquired Corporation Contract, except in each such case for defaults, acceleration rights, termination rights and other rights that have not had and would not reasonably be expected to have a Material Adverse Effect on the Acquired Corporations; and (iii) since January 1, 2010, none of the Acquired Companies Corporations has received any written claim of default under notice or other communication regarding any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in actual or possible violation or breach or violation of, or default under, any Material Acquired Corporation Contract, (ii) no event has occurred which except in each such case for defaults, acceleration rights, termination rights and other rights that have not had and would result in not reasonably be expected to have a breach or violation of, or a default by Material Adverse Effect on the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesCorporations.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aPart 3.17(a) of the Disclosure Letter lists contains a complete and the Company made available accurate list, and Sellers have delivered to Parent prior to the date hereof copies of each of the following Contracts (Buyer true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Applicable Contract that involves performance of services or officer delivery of goods or Affiliate of materials by the Company;
(ii) any Contracts evidencing, governing each Applicable Contract that involves performance of services or relating delivery of goods or materials to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan DocumentsCompany;
(iii) any Contracts each Applicable Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000Business;
(iv) except for each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property;
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets;
(vi) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(vii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of their Affiliates, the Company or to limit the freedom of any Acquired the Company or any Affiliate of their Affiliates the Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating each Applicable Contract providing for payments to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing by any Person with any preemptive rightbased on sales, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect topurchases, or right to repurchase or redeemprofits, any securitiesother than direct payments for goods;
(ix) any Contracts relating to any currency hedgingeach power of attorney that is currently effective and outstanding;
(x) any Contracts containing “standstill” each Applicable Contract entered into other than in the Ordinary Course of Business that contains or similar provisionsprovides for an express undertaking by the Company to be responsible for consequential damages;
(xi) each Applicable Contract for capital expenditures;
(xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company other than in the Ordinary Course of Business; and
(xiii) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts not delivered by Sellers to Buyer prior to the Closing, including details regarding the parties to the Contracts, the amount of the remaining commitment of the Company under the Contracts, and the Company' office where details relating to the Contracts are located.
(b) No Seller (and no Related Person of any Seller) has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, the Company.
(c) No officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to which any Governmental Body is a party or under which any Governmental Body has any rights or obligationsthe business of the Company, or (B) directly assign to the Company or indirectly benefiting to any Governmental Bodyother Person any rights to any invention, except for those instruments improvement, or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;discovery.
(xiid) Each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and, to Sellers' Knowledge, is valid and enforceable against the Company in accordance with its terms.
(e) The Company is, and at all times since its organization has been, in full compliance with all applicable terms and requirements of each Contract under which the Company has or had any Contracts requiring that obligation or liability or by which the Company or any of the Acquired Companies assets owned or used by the Company is or was bound.
(f) Each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since the Company's organization has been, in full compliance with all applicable terms and requirements of such Contract
(g) No event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract.
(h) The Company has not given to or received from any other Person, at any time since its organization, any notice or provide other communication (whether oral or written) regarding any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposalactual, alleged, possible, or prior to entering into any discussions, agreement, arrangement potential violation or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, .
(iii) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(j) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired CompaniesCompany have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, underor any consideration having been paid or promised, that is or would be in violation of any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(a) 5.10 of the Purchaser Disclosure Letter lists and the Company made available contains a listing of all Contracts described in clauses (i) through (vii) below to Parent prior to which, as of the date hereof copies of each this Agreement, any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Purchaser Entities is a party party, for the sake of clarity, not including any Benefit Plan, purchase orders and invoices or by which any of their respective properties or assets are bound Purchaser Entity Benefit Plans (notwithstanding anything hereineach such Contract, a “Purchaser Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):”).
(i) any Contracts Each joint venture Contract, partnership agreement or limited liability company agreement with any directora third party (in each case, manager or officer or Affiliate other than with respect to wholly owned Subsidiaries of Purchaser), in each case that is material to the business and operations of the CompanyPurchaser Entities, taken as a whole;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than (A) the Loan DocumentsPurchaser Convertible Senior Notes Indenture and (B) the Capped Call Documentation;
(iii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts that reflect transactionsrelating to the borrowing of money, extension of credit in excess of $500,000, other than (A) accounts receivable and accounts payable in the ordinary course of business, that involve expenditures, in cash business and (B) loans to or any other form between direct or indirect wholly-owned Subsidiaries of consideration, in excess of $1,000,000Purchaser;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that Each Contract containing covenants expressly limiting in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit material respect the freedom of the Purchaser Entities to compete with any Acquired Company Person in a product line or any of their Affiliates to engage in any line of business or to compete with any Person or operate in any geographic area area, including Contracts that contain a “exclusivity” provision (in each case, other than (A) confidentiality agreements entered into in the Ordinary Course of Business, (B) inbound licenses to Intellectual Property required to be scheduled pursuant to Section 5.10(a)(v)(x) and (C) covenants not to assert, ▇▇▇ or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projectschallenge);
(v) any Contracts Each Contract that provide an obligation is material to fund or make any investment in the business of the Purchaser Entities, taken as a whole, pursuant to which a Purchaser Entity: (whether in the form of x) licenses material Intellectual Property from a loanthird party, capital contribution or otherwiseother than (i) click-wrap, shrink-wrap and off-the-shelf software licenses and (ii) any Subsidiary of other non-exclusive software licenses that are commercially available on reasonable terms to the public generally; (y) grants a license to any of the Acquired Companies, or other Person third party to use any Business Intellectual Property (other than any Organizational Documentnon-exclusive licenses to customers, distributors or other service providers in the Ordinary Course of Business); or (z) grants or is a recipient of a covenant not to ▇▇▇ or assert, or immunity from suit, with respect to Intellectual Property (including trademark coexistence agreements and settlement agreements);
(vi) Each Contract (A) that contains a “most-favored-nation” clause or similar term pursuant to which the Purchaser Entities provide material preferential pricing or treatment to any Contracts providing for other Person or (B) that grants any indemnification obligations in effect for put option, call option, right of first refusal or right of first offer with respect to any current or former officer, director, trustee or employeematerial assets of the Purchaser Entities;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;Each Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated by the SEC.
(viiib) any As of the date of this Agreement, all of the Purchaser Material Contracts are (Ai) relating in full force and effect, subject to the acquisitionEnforceability Exceptions, issuance, voting, registration, sale or transfer of any securities, and (Bii) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any represent the valid and binding obligations of the Acquired Companies with any right Purchaser Entity party thereto and, to the Knowledge of first refusal with respect toPurchaser, represent the valid and binding obligations of the other parties thereto. Except, in each case, where the occurrence of such breach or right default would not reasonably be expected to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would nothave, individually or in the aggregate, have a Purchaser Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any Effect, as of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposaldate of this Agreement, or prior to entering into any discussions(x) neither the Purchaser Entities nor, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchangeKnowledge of Purchaser, any real propertyother party thereto is in breach of or default under any such Contract, (y) the Purchaser Entities have not received any claim or notice of material breach of or material default under any such Contract, and (z) to the purchase or exchange ofKnowledge of Purchaser, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions no event has occurred that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Sources: Stock Purchase Agreement (Limelight Networks, Inc.)
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and contains a listing of all Contracts described in clauses (i) through (xv) below to which, as of the date of this Agreement, the Company made available to Parent prior to the date hereof copies of each or any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Company’s Subsidiaries is a party or by which any they are bound, other than a Company Benefit Plan. True, correct and complete copies of their respective properties the Contracts listed on Section 4.12(a) of the Company Disclosure Letter have previously been delivered to or assets are bound (notwithstanding anything hereinmade available to Acquiror or its agents or representatives, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):together with all amendments thereto.
(i) any Contracts Any Contract with any director, manager or officer or Affiliate of the CompanyTop Vendors;
(ii) any Contracts evidencingEach note, governing debenture, other evidence of Indebtedness, guarantee, loan, credit or relating to Debt financing agreement or instrument or other Contract for money borrowed by the Company or any guarantee by any Acquired Company of the Company’s Subsidiaries, including (A) the Inventory Financing Documents, and (B) any other Person in excess of $750,000agreement or commitment for future loans, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditurescredit or financing, in cash or any other form of considerationeach case, in excess of $1,000,000;
(iviii) except Each Contract for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity acquisition of any Acquired Person or any business unit thereof or the disposition of any material assets of the Company or any of their Affiliatesits Subsidiaries in the last two (2) years, in each case, involving payments in excess of $1,000,000 other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, or to limit (B) between the freedom of any Acquired Company and its wholly owned Subsidiaries;
(iv) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the ownership of, leasing of, title to, use of, or any of their Affiliates to engage leasehold or other interest in any line real or personal property that involves aggregate payments in excess of business or to compete with any Person or $1,000,000 in any geographic area calendar year, other than Contracts for the purchase or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval sale of the Acquired Companies’ development projectsOwned Residential Properties;
(v) any Contracts that provide an obligation to fund Each Contract involving the formation of a (A) joint venture, (B) partnership, or make any investment in (whether C) limited liability company (excluding, in the form case of a loanclauses (B) and (C), capital contribution or otherwise) any wholly owned Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational DocumentCompany);
(vi) Contracts (other than employment agreements, employee confidentiality and invention assignment agreements, equity or incentive equity documents and Governing Documents) between the Company and its Subsidiaries, on the one hand, and Affiliates of the Company or any Contracts providing for of the Company’s Subsidiaries (other than the Company or any indemnification obligations in effect for of the Company’s Subsidiaries), the officers and managers (or equivalents) of the Company or any current of the Company’s Subsidiaries, the members or former officerstockholders of the Company or any of the Company’s Subsidiaries, directorany employee of the Company or any of the Company’s Subsidiaries or a member of the immediate family of the foregoing Persons, trustee or employeeon the other hand (collectively, “Affiliate Agreements”);
(vii) any Contracts evidencing any employment agreementswith each current executive, severance, change in control or termination agreements with any officer, director, trustee director or employeecurrent employee of the Company or its Subsidiaries with a title of Vice President or higher;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right employee or consultant of participation, right of maintenance the Company or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right Company’s Subsidiaries that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of first refusal with respect to, or right to repurchase or redeem, any securitiesthe transactions contemplated hereby;
(ix) Contracts containing covenants of the Company or any Contracts relating of the Company’s Subsidiaries (A) prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to engage in or compete with any currency hedgingPerson in any line of business in any material respect or (B) prohibiting or restricting the Company’s and the Company’s Subsidiaries’ ability to conduct their business with any Person in any geographic area in any material respect;
(x) Any collective bargaining (or similar) agreement or Contract between the Company or any Contracts containing “standstill” of the Company’s Subsidiaries, on one hand, and any labor union or similar provisionsother body representing employees of the Company or any of the Company’s Subsidiaries, on the other hand;
(xi) any Contracts Each Contract (Aincluding license agreements, coexistence agreements, and agreements with covenants not to s▇▇, but not including non-disclosure agreements, contractor services agreements, consulting services agreements, incidental trademark licenses incident to marketing, printing or advertising Contracts) pursuant to which the Company or any Governmental Body is of the Company’s Subsidiaries (i) grants to a party or under which any Governmental Body has any rights or obligations, third Person the right to use material Intellectual Property of the Company and its Subsidiaries or (Bii) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into is granted by a third Person the Acquired Companies in right to use Intellectual Property that is material to the ordinary course business of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired CompaniesCompany and its Subsidiaries (other than Contracts granting nonexclusive rights to use commercially available off-the-shelf software and Open Source Licenses);
(xii) any Contracts Each Contract requiring that capital expenditures by the Company or any of the Acquired Companies give Company’s Subsidiaries after the date of this Agreement in an amount in excess of $1,000,000 in any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactioncalendar year;
(xiii) relating Any Contract that (A) grants to collective bargaining any third Person any “most favored nation rights” or other agreement or understanding with (B) grants to any third Person price guarantees for a labor union or labor organizationperiod greater than one (1) year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of $1,000,000 in any calendar year;
(xiv) Contracts granting to any Contracts relating to Person (other than the sale Company or exchange ofits Subsidiaries) a right of first refusal, first offer or option to sell or exchange, any real property, or to the purchase or exchange of, or option similar preferential right to purchase or exchangeacquire equity interests in the Company or any of the Company’s Subsidiaries; and
(xv) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xiv) of this Section 4.12(a).
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, any real property all of the Contracts listed pursuant to Section 4.12(a) in respect the Company Disclosure Letter are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of future the Company or existing transactions (including transactions that have not been consummated)the Subsidiary of the Company party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, having value where the occurrence of more than $500,000;
(xv) any Contracts relating such breach or default or failure to perform would not be material to the development or construction ofCompany and its Subsidiaries, or additions or expansions totaken as a whole, any real property that would involve (x) the expenditure Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by any of them to date under such Contracts listed pursuant to Section 4.12(a) and neither the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for Company, the acquisition or dispositionCompany’s Subsidiaries, directly or indirectly (by merger or otherwise)nor, of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary knowledge of the Company;
, any other party thereto is in breach of or default under any such Contract, (xxy) any Contracts other than in connection with during the Franchise Agreementslast twelve (12) months, neither the Management Agreement Documents or the Loan Documents under which Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability knowledge of the Acquired Companies under any purchase price adjustment thatCompany, in each caseno event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Sources: Merger Agreement (Social Capital Hedosophia Holdings Corp. II)
Contracts; No Defaults. (a) Section 4.13(a) To the best of the Disclosure Letter lists and the Company Seller's knowledge, Seller has delivered or made available to Parent prior to the date hereof copies of each of the following Contracts (Buyer accurate and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Seller Contract that involves performance of services or officer delivery of goods or Affiliate materials by Seller of the Companyan amount or value in excess of $10,000;
(ii) any Contracts evidencing, governing each Seller Contract that involves performance of services or relating delivery of goods or materials to Debt Seller of an amount or any guarantee by any Acquired Company of any other Person value in excess of $750,000, other than the Loan Documents10,000;
(iii) any Contracts each Seller Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, Seller in excess of $1,000,00010,000;
(iv) each Seller Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with a term of less than one year);
(v) each Seller Contract with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employment; each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts an express undertaking by Seller to be responsible for consequential damages;
(vi) each Seller Contract for capital expenditures in excess of $10,000;
(vii) each Seller Contract not denominated in U.S. dollars;
(viii) each Seller Contract containing covenants that in any way purport to restrict the Seller's business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates Seller to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedgingeach power of attorney of Seller that is currently effective and outstanding;
(x) any Contracts containing “standstill” or each written warranty, guaranty, and/or similar provisions;undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of Business; and
(xi) any Contracts each amendment, supplement and modification (Awhether oral or written) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course respect of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would not, individually or set forth in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: Exhibit 7.3:
(i) none each Contract which is to be assigned to or assumed by Buyer under this Agreement is in full force and effect and is valid and enforceable in accordance with its terms;
(ii) each Contract which is being assigned to or assumed by Buyer is assignable by Seller to Buyer without the consent of any other Person;
(c) Except as set forth in Exhibit 3.13 or 3.12:
(i) Seller is in compliance with all applicable terms and requirements of each Seller Contract which is being assumed by Buyer;
(ii) To Seller's knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with or result in a Breach of, or give Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Seller Contract that is being assigned to or assumed by Buyer;
(iii) To Seller's knowledge, no event has occurred or circumstance exists under or by virtue of any Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Acquired Companies is and no Assets; and
(iv) Seller has not given to or received from any other party is in breach Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible or potential violation or Breach of, or default under, any Material Contract, Contract which is being assigned to or assumed by Buyer.
(iid) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate or a default by outstanding rights to renegotiate any material amounts paid or payable to Seller under current or completed Contracts with any Person having the Acquired Companies, under, any Material Contract (in each case, with contractual or without notice statutory right to demand or lapse of time or both) require such renegotiation and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesno such Person has made written demand for such renegotiation.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aPart 3.16(a) of the Disclosure Letter lists contains a complete and accurate list, and the Company made available has delivered to Parent prior to the date hereof copies of each of the following Contracts (Acquisition true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Applicable Contract (other than customer orders) that involves performance of services or officer delivery of goods by one or Affiliate more Acquired Companies of the Companyan amount or value in excess of $100,000;
(ii) any Contracts evidencing, governing each Applicable Contract that involves performance of services or relating delivery of goods to Debt one or any guarantee by any more Acquired Company Companies of any other Person an amount or value in excess of $750,000, other than the Loan Documents100,000;
(iii) any Contracts that reflect transactionseach lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other than in Applicable Contract affecting the ordinary course of businessownership of, that involve expendituresleasing of, in cash title to, use of, or any leasehold or other form interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of consideration, in excess less than $100,000 and with terms of $1,000,000less than one year);
(iv) except for each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the Loan Documentsappropriation or the non-disclosure of any of the Intellectual Property Assets;
(v) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, the Franchise Agreementspartnership, the Management Agreement Documents and Organization Documentsother Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Contracts Acquired Company with any other Person;
(vii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any director, officer or employee of their Affiliates, an Acquired Company or to limit the freedom of any Acquired Company or any director, officer or employee of their Affiliates an Acquired Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) each material power of attorney granted by any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesCompany that is currently effective and outstanding;
(ix) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Contracts relating Acquired Company to any currency hedgingbe responsible for consequential damages;
(x) any Contracts containing “standstill” or similar provisionseach Applicable Contract for capital expenditures in excess of $100,000;
(xi) any Contracts (A) to which any Governmental Body is a party or each Applicable Contract under which any Governmental Body has Acquired Company is liable or obligated for any rights or obligationsindebtedness in excess of $100,000 individually, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or $250,000 in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Contracts requiring that any Acquired Company other than in the Ordinary Course of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionBusiness;
(xiii) relating to collective bargaining each Applicable Contract (including any Applicable Contract evidencing outstanding indebtedness) with Andal, other Affiliates of the Company which are not Acquired Companies or other agreement any Related Person of Andal or understanding with a labor union or labor organizationsuch Affiliate;
(xiv) any Contracts each Applicable Contract relating to the sale or exchange of, or option to sell or exchange, any real property, or to ION Bond(R) Network of the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;Acquired Companies; and
(xv) any Contracts relating to the development each binding amendment, supplement, and modification (whether oral or construction of, or additions or expansions to, any real property that would involve the expenditure by written) in respect of any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would notset forth in Part 3.16(b) of the Disclosure Letter:
(i) neither Andal or other Affiliates of the Company which are not Acquired Companies nor any Related Person of Andal or any such Affiliate has or may acquire any rights under, individually and may not become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) to the Knowledge of Andal and the Acquired Companies, no officer, director, agent, employee, consultant, or contractor of any Acquired Company is 36 bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.16(c) of the Disclosure Letter, each Applicable Contract identified or required to be identified in Part 3.16(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.16(d) of the Disclosure Letter:
(i) each Acquired Company (and, with respect to the Multi-Arc Division, Andal) is, and at all times since January 1, 1994 has been, in compliance with all material applicable terms and requirements of each Applicable Contract;
(ii) each other Person that has or had any obligation or liability under any Applicable Contract under which any Acquired Company is liable or obligated for an amount in excess of $100,000 individually, or $250,000 in the aggregate, have is, and at all times since January 1, 1994 has been, in compliance with all material applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a Material Adverse Effect on violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) to the Knowledge of Andal and the Acquired Companies, (A) none of the neither any Acquired Companies has received any written claim of default under any such Material Contract and (B) Company nor, with respect to the knowledge of the Company Parties: Multi-Arc Division, Andal has given to or received from any other Person, at any time since January 1, 1994, any notice or other communication (iwhether oral or written) none of the Acquired Companies is and no other party is in regarding any actual, alleged, possible, or potential violation or breach or violation of, or default under, any Material Applicable Contract, .
(iie) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Applicable Contracts with any Person and no demand of any such Person for such renegotiation has been received by any Acquired Company.
(f) The Contracts relating to the provision of products or services by the Acquired CompaniesCompanies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, underor any consideration having been paid or promised, that is or would be in violation of any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Andal Corp)
Contracts; No Defaults. (a) Section 4.13(aTo the Knowledge of Seller and the Company, Part 3.17(a) of the Disclosure Letter lists contains a complete and the Company made available accurate list, and Seller has delivered to Parent prior to the date hereof copies of each of the following Contracts (Buyer true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Applicable Contract that involves performance of services or officer delivery of goods or Affiliate of materials by the Company;
(ii) any Contracts evidencing, governing each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or relating to Debt or any guarantee by any Acquired Company receipts of any other Person in excess of $750,000, other than the Loan DocumentsCompany;
(iii) any Contracts that reflect transactionseach lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other than in Applicable Contract affecting the ordinary course of businessownership of, that involve expendituresleasing of, in cash title to, use of, or any leasehold or other form of considerationinterest in, in excess of $1,000,000any real or personal property;
(iv) except for each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the Loan Documentsappropriation or the nondisclosure of any of the Intellectual Property Assets;
(v) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Franchise Agreements, the Management Agreement Documents and Organization Documents, Company with any Contracts other Person;
(vii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any of their Affiliates, or to limit the freedom of any Acquired the Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating each Applicable Contract providing for payments to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing by any Person with any preemptive rightbased on sales, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect topurchases, or right to repurchase or redeemprofits, any securitiesother than direct payments for goods;
(ix) any Contracts relating to any currency hedgingeach power of attorney that is currently effective and outstanding;
(x) any Contracts containing “standstill” or similar provisionseach Applicable Contract for capital expenditures in excess of $25,000;
(xi) any Contracts (A) each written warranty, guaranty, and or other similar undertaking with respect to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into contractual performance extended by the Acquired Companies Company other than in the ordinary course Ordinary Course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;Business; and
(xii) any Contracts requiring that each amendment, supplement, and modification (whether oral or written) in respect of any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would notset forth in Part 3.17(b) of the Disclosure Letter, individually as of the Closing:
(i) Seller (and no Related Person of Seller) neither has nor may acquire any rights under, and Seller neither has nor may become subject to any obligation or in liability under, any Contract that relates to the aggregatebusiness of, have a Material Adverse Effect on or any of the Acquired Companiesassets owned or used by, the Company; and
(ii) No officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) none engage in or continue any conduct, activity, or practice relating to the business of the Acquired Companies has received any written claim of default under any such Material Contract and Company, or (B) assign to the knowledge Company or to any other Person any rights to any invention, improvement, or discovery.
(c) To the Knowledge of Seller and the Company, except as set forth in Part 3.17(c) of the Company Parties: Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) none to the Knowledge of Seller and the Company, the Company is, and at all times since November 1, 1997, has been, in material compliance with all applicable terms and requirements of each Contract under which the Company has or had any obligation or liability or by which the Company or any of the Acquired Companies assets owned or used by the Company is or was bound;
(ii) to the Knowledge of Seller and the Company, each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since November 1, 1997, has been, in material compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of Seller and the Company, no event has occurred or circumstance exists that (with or without notice or lapse of time) may materially contravene, conflict with, or result in a material violation or breach of, or give the Company or other party is in Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) to the Knowledge of Seller and the Company, the Company has not given to or received from any other Person, at any time since November 1, 1997, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach or violation of, or default under, any Material Contract.
(e) to the Knowledge of Seller and the Company, (ii) there are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(f) to the Knowledge of Seller and the Company, the Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired CompaniesCompany have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, underor any consideration having been paid or promised, that is or would be in violation of any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and contains a listing of all Contracts described in clauses (i) through (xiv) below to which, as of the date of this Agreement, the Company made available to Parent prior to the date hereof copies of each or any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Company’s Subsidiaries is a party or by which any they are bound, other than a Company Benefit Plan. True, correct and complete copies of their respective properties the Contracts listed on Section 4.12(a) of the Company Disclosure Letter have previously been delivered to or assets are bound (notwithstanding anything hereinmade available to Acquiror or its agents or representatives, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):together with all amendments thereto.
(i) any Contracts Any Contract with any director, manager or officer or Affiliate of the CompanyTop Vendors (other than purchase orders, invoices, or statements of work entered into or used in the ordinary course of business consistent with past practice);
(ii) any Contracts evidencingEach note, governing debenture, other evidence of Indebtedness, guarantee, loan, credit or relating to Debt financing agreement or instrument or other Contract for money borrowed by the Company or any guarantee by of the Company’s Subsidiaries, including any Acquired Company of any other Person agreement or commitment for future loans, credit or financing, in each case, in excess of $750,000, other than the Loan Documents2,500,000;
(iii) Each Contract for the acquisition of any Contracts that reflect transactions, Person or any business unit thereof or the disposition (other than via ordinary course securitizations or participations therein or similar transactions) of any material assets of the Company or any of its Subsidiaries in the ordinary course of business, that involve expenditureslast two (2) years, in cash or any other form of considerationeach case, involving payments in excess of $1,000,0002,500,000 other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, or (B) between the Company and its wholly owned Subsidiaries;
(iv) except Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any Contracts that leasehold or other interest in any way purport to restrict the business activity real or personal property and involves aggregate payments in excess of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage $2,500,000 in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projectscalendar year;
(v) any Contracts that provide an obligation to fund Each Contract involving the formation of a (A) joint venture, (B) partnership, or make any investment in (whether C) limited liability company (excluding, in the form case of a loanclauses (B) and (C), capital contribution or otherwise) any wholly owned Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational DocumentCompany);
(vi) Contracts (other than employment agreements or offer letters, employee confidentiality and invention assignment agreements, equity or incentive equity documents and Governing Documents) between the Company and its Subsidiaries, on the one hand, and Affiliates of the Company or any Contracts providing for of the Company’s Subsidiaries (other than the Company or any indemnification obligations in effect for of the Company’s Subsidiaries), the officers and managers (or equivalents) of the Company or any current of the Company’s Subsidiaries, the members or former officerstockholders of the Company or any of the Company’s Subsidiaries, directorany employee of the Company or any of the Company’s Subsidiaries or a member of the immediate family of the foregoing Persons, trustee or employeeon the other hand (collectively, “Affiliate Agreements”);
(vii) Contracts with any Contracts evidencing employee or consultant of the Company or any employment agreements, severance, of the Company’s Subsidiaries that provide for change in control control, retention or termination agreements with any officersimilar payments or benefits contingent upon, director, trustee accelerated by or employeetriggered by the consummation of the transactions contemplated hereby;
(viii) Contracts, other than non-disclosure agreements, containing covenants of the Company or any Contracts of the Company’s Subsidiaries (A) relating prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to the acquisition, issuance, voting, registration, sale engage in or transfer compete with any Person in any line of business in any securities, material respect or (B) providing prohibiting or restricting the Company’s and the Company’s Subsidiaries’ ability to conduct their business with any Person with in any preemptive right, right of participation, right of maintenance or geographic area in any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesmaterial respect;
(ix) Any collective bargaining (or similar) agreement or Contract between the Company or any Contracts relating to of the Company’s Subsidiaries, on one hand, and any currency hedginglabor union or other body representing employees of the Company or any of the Company’s Subsidiaries, on the other hand;
(x) any Contracts containing “standstill” Each Contract, including license agreements, coexistence agreements, and agreements with covenants not to s▇▇ (but not including non-disclosure agreements, contractor services agreements, consulting services agreements, and incidental trademark licenses incident to lead-generation, marketing, printing or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated)advertising Contracts, in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts case entered into in the ordinary course of businessbusiness consistent with past practice) pursuant to which the Company or potential liability any of the Acquired Companies under Company’s Subsidiaries (i) grants to a third Person the right to use material Intellectual Property of the Company and its Subsidiaries or (ii) is granted by a third Person the right to use Intellectual Property that is material to the business of the Company and its Subsidiaries (other than Contracts granting nonexclusive rights to use commercially available off-the-shelf software and Open Source Licenses);
(xi) Each Contract requiring capital expenditures by the Company or any of the Company’s Subsidiaries after the date of this Agreement in an amount in excess of $2,500,000 in any calendar year;
(xii) Any Contract that grants to any third Person (A) any “most favored nation rights” or (B) price guarantees for a period greater than one year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of $2,500,000 in any calendar year;
(xiii) Contracts granting to any Person (other than the Company or its Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase price adjustment thator acquire equity interests in the Company or any of the Company’s Subsidiaries; and
(xiv) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xiii) of this Section 4.12(a).
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, all of the Contracts listed pursuant to Section 4.12(a) in the Company Disclosure Letter are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or the Subsidiary of the Company party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to the Company and its Subsidiaries, taken as a whole, (x) the Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.12(a) and neither the Company, the Company’s Subsidiaries, nor, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract, (y) during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract (which claim or notice has not been rescinded), and (z) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Sources: Merger Agreement (Social Capital Hedosophia Holdings Corp. V)
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and contains a listing of all Contracts described in clauses (i) through (xv) below to which, as of the date of this Agreement, the Company made available to Parent prior to the date hereof copies of each or any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Company’s Subsidiaries is a party or by which any they are bound, other than a Company Benefit Plan. True, correct and complete copies of their respective properties the Contracts listed on Section 4.12(a) of the Company Disclosure Letter have previously been delivered to or assets are bound (notwithstanding anything hereinmade available to SPAC or its agents or representatives, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):together with all amendments thereto.
(i) any Contracts Any Contract with any director, manager or officer or Affiliate of the CompanyTop Customers or Top Suppliers;
(ii) any Contracts evidencingEach note, governing debenture, other evidence of Indebtedness, guarantee, loan, credit or relating to Debt financing agreement or instrument or other Contract for money borrowed by the Company or any guarantee by any Acquired Company of any other Person the Company’s Subsidiaries, in each case, in excess of $750,000, other than the Loan Documents500,000;
(iii) Each Contract for the acquisition of any Contracts that reflect transactionsPerson or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries in the last two (2) years, in each case, involving payments in excess of $500,000 other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, (B) entered into in the ordinary course of business, that involve expenditures, in cash business consistent with past practice or any other form of consideration, in excess of $1,000,000(C) between the Company and its Subsidiaries;
(iv) except Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any Contracts that leasehold or other interest in any way purport to restrict the business activity real or personal property that involves aggregate payments in excess of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage $500,000 in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projectscalendar year;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in Each Contract involving the form formation of a loan(A) joint venture (B) partnership, capital contribution or otherwise) excluding any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational DocumentCompany);
(vi) Contracts (other than employment agreements, employee confidentiality and invention assignment agreements, equity or incentive equity documents and Governing Documents) between the Company and its Subsidiaries, on the one hand, and Affiliates of the Company or any Contracts providing for of the Company’s Subsidiaries (other than the Company or any indemnification obligations in effect for of the Company’s Subsidiaries), the officers and managers (or equivalents) of the Company or any current of the Company’s Subsidiaries, the members or former officerCompany Shareholders or any of the Company’s Subsidiaries, directorany employee of the Company or any of the Company’s Subsidiaries or a member of the immediate family of the foregoing Persons, trustee or employeeon the other hand (collectively, “Affiliate Agreements”);
(vii) any Contracts evidencing any employment agreementswith each current executive, severance, change in control or termination agreements with any officer, director, trustee director or employeecurrent employee of the Company or its Subsidiaries with a title of Vice President or higher;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right employee or consultant of participation, right of maintenance the Company or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right Company’s Subsidiaries that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of first refusal with respect to, or right to repurchase or redeem, any securitiesthe transactions contemplated hereby;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” covenants of the Company or similar provisions;
(xi) any Contracts of the Company’s Subsidiaries (A) prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to which engage in or compete with any Governmental Body is a party or under which Person in any Governmental Body has line of business in any rights or obligations, material respect or (B) directly prohibiting or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by restricting the Acquired Companies in Company’s and the ordinary course of Company’s Subsidiaries’ ability to conduct their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to business with any Person prior to considering or accepting in any Acquisition Proposal or similar proposal, or prior to entering into geographic area in any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in material respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising customary non-solicitation and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts no-hire provisions entered into in the ordinary course of business;
(x) Any collective bargaining (or potential liability similar) agreement or Contract between the Company or any of the Acquired Companies under Company’s Subsidiaries, on one hand, and any labor union or other body representing employees of the Company or any of the Company’s Subsidiaries, on the other hand;
(xi) Each Contract (including license agreements, coexistence agreements, and agreements with covenants not to ▇▇▇) pursuant to which the Company or any of the Company’s Subsidiaries (i) grants to a third Person a license, immunity, or other right in or to any material Company Intellectual Property or (ii) is granted by a third Person a license, immunity, or other right in or to any Intellectual Property that is material to the business of the Company and its Subsidiaries, provided, however, that none of the following are required to be set forth on Section 4.12(a) in the Company Disclosure Letter (but shall be deemed to constitute Material Contracts for purposes of Section 4.12(b) if they otherwise qualify): (A) non-exclusive licenses or grants of rights in Intellectual Property in independent contractor agreements or consulting agreements on terms substantially similar to the Company’s or any of the Company’s Subsidiaries’ standard forms made available to SPAC); (B) Contracts granting nonexclusive rights to use Company products or services (or Marks in connection with the promotion or sale of Company products or services); (C) Contracts granting nonexclusive rights to Intellectual Property incidental to or implied by the sale or purchase of goods or services, in each case of (A)-(C), entered into in the ordinary course of business consistent with past practice; (D) Open Source Licenses; or (E) Contracts granting to the Company or any of its Subsidiaries nonexclusive rights to use uncustomized Software that is generally commercially available to the public on standard or nondiscriminatory terms with license, maintenance, support, and other fees less than $100,000 per year);
(xii) Each Contract requiring capital expenditures by the Company or any of the Company’s Subsidiaries after the date of this Agreement in an amount in excess of $500,000 in any calendar year;
(xiii) Any Contract that (A) grants to any third Person any “most favored nation rights” or (B) grants to any third Person price adjustment thatguarantees for a period greater than one year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of $500,000 in any calendar year;
(xiv) Contracts granting to any Person (other than the Company or its Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase or acquire equity interests in the Company or any of the Company’s Subsidiaries; and
(xv) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xiv) of this Section 4.12(a).
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the anticipated Closing Date, all of the Contracts listed pursuant to Section 4.12(a) in the Company Disclosure Letter are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or the Subsidiary of the Company party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to the Company and its Subsidiaries, taken as a whole, (x) the Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.12(a) and neither the Company, the Company’s Subsidiaries, nor, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract, (y) during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and contains a listing of all Contracts described in clauses (i) through (xv) below to which, as of the date of this Agreement, the Company made available to Parent prior to the date hereof copies of each or any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Company’s Subsidiaries is a party or by which any they are bound. True, correct and complete copies of their respective properties the Contracts listed on Section 4.12(a) of the Company Disclosure Letter have previously been delivered to or assets are bound (notwithstanding anything hereinmade available to Acquiror or its agents or representatives, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):together with all amendments thereto.
(i) any Contracts Any Contract with any director, manager or officer or Affiliate of the CompanyTop Customers or the Top Vendors (other than purchase orders, invoices, statements of work and non-disclosure or similar agreements entered into in the ordinary course of business consistent with past practice that do not contain any material terms relating to the Contract underlying the applicable Top Customer or Top Vendor relationship);
(ii) any Contracts evidencingEach note, governing debenture, other evidence of Indebtedness, guarantee, loan, credit or relating to Debt financing agreement or instrument or other Contract for money borrowed by the Company or any guarantee by of the Company’s Subsidiaries, including any Acquired Company of any other Person agreement or commitment for future loans, credit or financing, in each case, in excess of $750,000, other than the Loan Documents50,000;
(iii) Each Contract for the acquisition of any Contracts that reflect transactions, other than Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries in the ordinary course of business, that involve expenditureslast five (5) years, in cash or any other form of considerationeach case, involving payments in excess of $1,000,00050,000 other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, or (B) between the Company and its wholly-owned Subsidiaries;
(iv) except Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any Contracts that leasehold or other interest in any way purport to restrict the business activity real or personal property that involves aggregate payments in excess of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage $50,000 in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projectscalendar year;
(v) any Contracts that provide an obligation to fund Each Contract involving the formation of a (A) joint venture, (B) partnership, or make any investment in (whether C) limited liability company (excluding, in the form case of a loanclauses (B) and (C) above, capital contribution or otherwise) any wholly-owned Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational DocumentCompany);
(vi) Contracts (other than employment agreements, employee confidentiality and invention assignment agreements, individual consulting or advisor agreements, equity or incentive equity documents and Governing Documents) between the Company or any Contracts providing for of its Subsidiaries, on the one hand, and any indemnification obligations in effect for Affiliate of the Company or any current of the Company’s Subsidiaries (other than the Company or former officerany of the Company’s Subsidiaries), directorany officer and manager (or equivalent) of the Company or any of the Company’s Subsidiaries, trustee any member or employeestockholder of the Company or any of the Company’s Subsidiaries, any employee of the Company or any of the Company’s Subsidiaries or a member of the immediate family of the foregoing Persons, on the other hand (collectively, “Affiliate Agreements”);
(vii) Contracts (i) that provide a base salary of in excess of $75,000 or more with any Contracts evidencing employee or consultant of the Company or any employment agreementsof the Company’s Subsidiaries, severance, (ii) that provide for change in control control, retention or termination agreements with similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the transactions contemplated hereby, or (iii) otherwise restricts the Company’s or a Company Subsidiary’s ability to terminate the employment or engagement of such employee or consultant at any officer, director, trustee time for any reason or employeeno reason without more than thirty (30) days’ prior notice and without penalty or liability;
(viii) Contracts containing covenants of the Company or any Contracts of the Company’s Subsidiaries (A) relating prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to the acquisition, issuance, voting, registration, sale engage in or transfer compete with any Person in any line of business in any securities, material respect or (B) providing prohibiting or restricting the Company’s and the Company’s Subsidiaries’ ability to conduct their business with any Person with in any preemptive right, right of participation, right of maintenance or geographic area in any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesmaterial respect;
(ix) Any collective bargaining (or similar) agreement or Contract between the Company or any Contracts relating to of the Company’s Subsidiaries, on one hand, and any currency hedginglabor union or other body representing employees of the Company or any of the Company’s Subsidiaries, on the other hand;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions Each Contract (including transactions that have not been consummated)license agreements, in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing coexistence agreements, and credit card agreements with covenants not to sue, but not including (1) non-disclosure agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix2) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating nonexclusive licenses granted to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than service providers in connection with the Franchise Agreements, provision of services to the Management Agreement Documents Company or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations its Subsidiaries, or (other than Contracts 3) ancillary trademark licenses incident to marketing, printing or advertising Contracts, in each case of (1)-(3) entered into in the ordinary course of business) pursuant to which the Company or potential liability any of the Acquired Companies under Company’s Subsidiaries (i) grants to a third Person the right to use material Intellectual Property of the Company or its Subsidiaries (other than Contracts granting nonexclusive rights to customers to use the Company’s or its Subsidiaries’ products in the ordinary course of business) or (ii) is granted by a third Person the right to use Intellectual Property that is material to the business of the Company or its Subsidiaries (other than Contracts granting nonexclusive rights to use commercially available off-the-shelf software that is not used in the Company’s or its Subsidiaries’ products and involves aggregate payments less than $50,000 in any calendar year and Open Source Licenses);
(xi) Each Contract requiring capital expenditures by the Company or any of the Company’s Subsidiaries after the date of this Agreement in an amount in excess of $50,000 in any calendar year;
(xii) Any Contract that (A) grants to any third Person any “most favored nation rights” or (B) grants to any third Person price guarantees for a period greater than one (1) year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of $50,000 in any calendar year;
(xiii) Contracts granting to any Person (other than the Company or its Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase price adjustment thator acquire equity interests in the Company or any of the Company’s Subsidiaries; and
(xiv) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xiv) of this Section 4.12(a).
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, all of the Contracts listed pursuant to Section 4.12(a) in the Company Disclosure Letter are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or the Subsidiary of the Company party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to the business of the Company and its Subsidiaries, taken as a whole, (x) the Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.12(a) and neither the Company, the Company’s Subsidiaries, nor, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract, (y) during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
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Sources: Membership Interest Purchase Agreement (Stratim Cloud Acquisition Corp.)
Contracts; No Defaults. (a) Section 4.13(aPart 3.17(a) of the Disclosure Letter lists contains a complete and the Company made available accurate list, and Seller has delivered to Parent prior to the date hereof copies of each of the following Contracts (Buyer true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by any Contracts with any director, manager Acquired Company of an amount or officer or Affiliate value in excess of the Company$15,000;
(ii) any Contracts evidencing, governing each Applicable Contract that involves performance of services or relating delivery of goods or materials to Debt or any guarantee by any Acquired Company of any other Person an amount or value in excess of $750,000, other than the Loan Documents15,000;
(iii) any Contracts each Applicable Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or receipts of any other form of consideration, Acquired Company in excess of $1,000,00015,000;
(iv) except for each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $15,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of their Affiliates, any Acquired Company or to limit the freedom of any Acquired Company or any Affiliate of their Affiliates any Acquired Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) each Applicable Contract providing for payments to or by any Contracts relating to any currency hedgingPerson based on sales, purchases, or profits, other than direct payments for goods and sales commission arrangements for employees;
(x) each power of attorney granted by any Contracts containing “standstill” or similar provisionsAcquired Company that is currently effective and outstanding;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents each Applicable Contract entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any Ordinary Course of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.Business that contains or
Appears in 1 contract
Contracts; No Defaults. (ai) Section 4.13(aSchedule 10(l) of the Disclosure Letter lists Schedule contains an accurate and the Company made available complete list, and Seller has delivered to Parent prior to the date hereof Purchaser accurate and complete copies of of, each of the following Contracts contracts, agreements, instruments, leases, subleases, licenses, deeds, mortgages, purchase orders, commitments, arrangements or undertakings, written or oral (and all amendments“Contracts”), modifications and supplements thereto) to which any Acquired Company or by Seller is a party or by which any of their respective properties or assets are otherwise bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior relates to the Closing, (2) is a Ground Lease Purchased Assets or (3) is an Organizational Document):operation of the Business:
(iA) each Contract relating to the acquisition or divestiture of capital stock or other equity securities, assets or business of any Contracts with any director, manager or officer or Affiliate of the CompanyPerson;
(iiB) each Contract for the employment of any officer, individual employee or other person on a full-time or consulting basis (other than Contracts evidencing, governing for at will employment that are not in writing);
(C) each agreement or indenture relating to Debt the borrowing of money or to mortgaging, pledging or otherwise placing a lien, claim or other encumbrance on any guarantee portion of the Purchased Assets;
(D) each guaranty of any obligation for borrowed money;
(E) each lease or agreement under which Seller is lessee of, or holds or operates any personal property owned by any Acquired Company other Person;
(F) each lease or agreement under which Seller is lessor of or permits any other Person third party to hold or operate any property, real or personal;
(G) each Contract or group of related Contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a selling price in excess of $750,000, other than the Loan Documents50,000;
(iiiH) any each Contract or group of related Contracts that reflect transactions, other than with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $50,000;
(I) each Contract which expressly prohibits Seller from freely engaging in business anywhere in the world; or
(J) each Contract entered into outside of the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;.
(ivii) except for Except as set forth on Schedule 10(1):
(A) each Assigned Contract is a valid, binding and enforceable agreement against Seller and, to the Loan DocumentsSeller’s knowledge, the Franchise Agreementsother parties thereto in accordance with their terms (subject to bankruptcy, the Management Agreement Documents reorganization, receivership and Organization Documents, any Contracts that in any way purport to restrict the business activity other laws affecting creditors’ rights generally and general principles of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Documentequity);
(viB) no consent, authorization or approval is required under any Contracts providing for any indemnification obligations Assigned Contract in effect for any current or former officer, director, trustee or employeeconnection. with the consummation of the transactions contemplated by this Agreement;
(viiC) Seller has not received any Contracts evidencing notice of and, to Seller’s knowledge, Seller is not in material breach of, or in default in any employment agreementsmaterial respect under, severance, change in control or termination agreements with the terms of any officer, director, trustee or employeeAssigned Contract;
(viiiD) any Contracts (A) relating to Seller’s knowledge, no condition exists or event has occurred that with or without notice or the acquisitionpassage of time or both, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect towould constitute a material breach of, or right to repurchase or redeema material default under, any securitiesAssigned Contract by Seller;
(ixE) any Contracts relating to Seller’s knowledge, no other party to any currency hedgingsuch Assigned Contract has breached in any material respect any provision or is in material default under any Assigned Contract;
(xF) Seller has not given or received, at any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligationstime since December 31, or (B) directly or indirectly benefiting any Governmental Body2007, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide other communication (whether written or oral) regarding any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposalactual, alleged, or prior to entering into any discussions, agreement, arrangement potential violation or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contractof the Assigned Contracts; and
(G) there are no pending renegotiations of any of the Assigned Contracts and neither Seller nor the Shareholders have received written notice from, (ii) no event has occurred which would result in and neither Seller nor the Shareholders have any knowledge that a breach party to any Assigned Contract intends to, terminate, cancel or violation materially change the terms of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and such Assigned Contract.
(iii) Except as set forth on Schedule 10(c) or Schedule 10(l), the continuation, validity and effectiveness of each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to will not be affected by the Acquired Companies, and to consummation of the other parties thereto, except as enforceability may be limited transactions contemplated by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesthis Agreement.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 4.12(a) contains a listing of all Contracts described in clauses (i) through (xi) below to which, as of the Disclosure Letter lists and date hereof, the Company made available to Parent prior to the date hereof copies or one or more of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which any of their respective assets or properties are bound. True, correct and complete copies of the Contracts listed or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1required to be listed on Schedule 4.12(a) will be fully performed and satisfied on have been provided to or prior made available to the Closing, (2) is a Ground Lease Acquiror or (3) is an Organizational Document):its Representatives.
(i) any Contracts Contract with any director, manager an employee or officer or Affiliate independent contractor of the CompanyCompany or any of its Subsidiaries who resides primarily in the United States which, upon the consummation of the transactions contemplated by this Agreement, will (either alone or upon the occurrence of any additional acts or events) result in any material payment or benefits (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any rights to any material payment or benefits, from the Company or any of its Subsidiaries;
(ii) each employment, severance, retention, change in control or other Contract (excluding customary form offer letters and other standard form agreements entered into in the ordinary course of business and agreements granting Company Options) with any Contracts evidencing, governing employee or relating to Debt other individual independent contractor of the Company or any guarantee by any Acquired Company of any other Person in excess its Subsidiaries who receives annual base cash salary of $750,000, other than the Loan Documents200,000 or more;
(iii) each collective bargaining agreement;
(iv) any Contracts Contract pursuant to which the Company or any of its Subsidiaries licenses material Intellectual Property owned by the Company or any of its Subsidiaries to any Person or licenses Intellectual Property from any Person that reflect transactionsis material to the business of the Company and its Subsidiaries, taken as a whole, in each case, other than (A) click-wrap, shrink-wrap or similar licenses and (B) any other licenses for Software that is commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year;
(v) any Contract that restricts in any material respect, or contains any material limitations on, the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic territory;
(vi) any Contract under which the Company or any of its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness, (B) granted a Lien on its assets, whether tangible or intangible, to secure any Indebtedness or (C) extended credit to any Person (other than (1) intercompany loans and advances and (2) customer payment terms in the ordinary course of business, that involve expenditures), in cash each case in this clause (C), in an amount in excess of $1,000,000 of committed credit;
(vii) each Contract entered into in connection with a completed material acquisition or disposition by the Company or any of its Subsidiaries since January 1, 2017 of any Person or any business organization, division or business of any Person (including through merger or consolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person, division or business or by any other form manner);
(viii) any Contract with outstanding obligations for the sale or purchase of considerationpersonal property, fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $750,000 or, together with all related Contracts, in excess of $1,500,000, in each case, other than (A) sales or purchases in the ordinary course of business consistent with past practice and (B) sales of obsolete equipment;
(ix) any Contract not made in the ordinary course of business and not disclosed pursuant to any other clause under this Section 4.12(a) and expected to result in revenue or require expenditures in excess of $1,000,000 in any calendar year or which resulted in revenue or expenditures during the fiscal year ended December 31, 2019 in excess of $1,000,000;
(ivx) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documentsother than any offer letter or employment agreement set forth on Schedule 4.13(a), any Contracts that in any way purport to restrict Contract between the business activity of any Acquired Company or any of their Affiliatesits Subsidiaries, or to limit on the freedom of any Acquired Company or one hand, and any of their Affiliates to engage in any line of business Company Stockholders, on the other hand, that will not be terminated at or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating prior to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;Closing; and
(xi) any Contract establishing any joint venture, partnership, strategic alliance or other collaboration that is material to the business of the Company and its Subsidiaries, taken as a whole.
(b) Except for any Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, with respect to any Contract of the type described in Section 4.12(a), whether or not set forth on Schedule 4.12(a), (i) such Contracts are in full force and effect and represent the legal, valid and binding obligations of the Company or its Subsidiaries party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, and, to the knowledge of the Company, are enforceable by the Company or its Subsidiaries to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (Awhether considered in a proceeding in equity or at law), (ii) none of the Company, its Subsidiaries or, to the knowledge of the Company, any other party thereto is in material breach of or material default under (or would be in material breach of or material default under but for the existence of a cure period) any such Contract, (iii) during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received any written or, to the knowledge of the Company, oral claim or notice of material breach of or material default under any such Contract, (iv) to which any Governmental Body is a party or under which any Governmental Body the knowledge of the Company, no event has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would notoccurred that, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or together with other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each caseevents, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or any of its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) ), and (iiiv) each Material during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received written notice from any other party to any such Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect that such party intends to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to terminate or affecting creditors’ rights or by general equitable principlesnot renew any such Contract.
Appears in 1 contract
Contracts; No Defaults. (a) Company Disclosure Schedule Section 4.13(a5.12(a) of the Disclosure Letter lists contains a true, correct and complete list of, and the Company has made available to Parent prior SPAC (including written summaries of oral Contracts) true, correct and complete copies of, all Contracts (other than purchase orders) described in clauses (i) through (xvii) below to which, as of the date hereof copies of each of the following Contracts (and all amendmentsthis Agreement, modifications and supplements thereto) to which any Acquired Company Party is a party or by which any of their respective properties or assets are bound (notwithstanding anything hereintogether with all material amendments, waivers or other changes thereto) (collectively, the “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):Contracts”);
(i) any Contracts with any director, manager or officer or Affiliate of the Companyeach employee collective bargaining Contract;
(ii) any Contracts evidencingContract pursuant to which any Company Party (A) licenses or is granted rights from a third party under Intellectual Property that is material to the business of the applicable Company Party or (B) licenses or grants to a third party to any rights in or to use Owned Intellectual Property (excluding non-exclusive licenses granted to customers, governing contractors, suppliers or relating to Debt or any guarantee by any Acquired Company service providers in the ordinary course of any other Person in excess of $750,000, other than the Loan Documentsbusiness);
(iii) any Contracts that reflect transactions, other than in Contract which restricts or contains any material limitations on the ordinary course ability of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport applicable Company Party to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage compete in any line of business or to compete with any Person or in any geographic area territory, in each case excluding customary confidentiality agreements (or clauses) or non-solicitation agreements (or clauses);
(iv) any Contract under which any Company Party has created, incurred, assumed or guaranteed Indebtedness, has the right to hire draw upon credit that has been extended for Indebtedness, or retain has granted a Lien on its assets, whether tangible or intangible, to secure any PersonIndebtedness, except for customary restrictions imposed by localities as a condition to approval in each case, in an amount in excess of the Acquired Companies’ development projects$100,000;
(v) any Contracts Contract that provide is a definitive purchase and sale or similar agreement entered into in connection with an obligation to fund acquisition or make disposition by any investment Company Party, involving consideration in excess of $100,000 of any Person or of any business entity or division or business of any Person (whether in including through merger or consolidation or the form purchase of a loan, capital contribution controlling equity interest in or otherwise) any Subsidiary of any substantially all of the Acquired Companies, assets of such Person or by any other Person (other than any Organizational Documentmanner);
(vi) any Contracts providing Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $250,000 in any indemnification obligations in effect for any current or former officer, director, trustee or employeecalendar year;
(vii) any Contracts evidencing Contract not made in the ordinary course of business and not disclosed pursuant to any employment agreementsother clause under this Section 5.12 and expected to result in revenue or require expenditures in excess of $250,000 in the fiscal year ended September 30, severance2024 and the fiscal year ending September 30, change in control or termination agreements with any officer, director, trustee or employee2025;
(viii) any Contracts (A) relating joint venture Contract, partnership agreement, limited liability company agreement or similar Contract that is material to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any business of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesCompany;
(ix) any Contracts relating to Contract that involves any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligationsexchange traded, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by over the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining counter or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange ofswap, or cap, floor, collar, futures contract, forward contract, option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Propertieskind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts those entered into in the ordinary course of businessbusiness of the Target Companies on behalf of a customers or any ordinary course transactions;
(x) Contracts with Top Customers and Top Suppliers;
(xi) Contracts that obligates the Company Parties to provide continuing indemnification or a guarantee of obligations of a third party after the Effective Time in excess of $100,000;
(xii) any Contract between any (A) Company Party and (B) any directors, officers or employees of a Company Party (other than at will employment, arrangements with employees entered into in the ordinary course of business consistent with past practice), including all non-competition, severance and indemnification agreements, or any Related Person;
(xiii) any Contract that obligates the Company Parties to make any capital commitment or expenditure in excess of $250,000 (including pursuant to any joint venture);
(xiv) any Contract that relates to a settlement of any Action for an amount greater than $100,000 entered into within three (3) years prior to the date of this Agreement or under which any Company Party has outstanding obligations (other than customary confidentiality obligations);
(xv) any Contract that provides another Person (other than another Company Party or any manager, director or officer of any Company Party) with a power of attorney;
(xvi) any Contract that will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or potential liability (10) of Regulation S-K under the Securities Act as if the Company was the registrant; or
(xvii) any Contract that is otherwise material to any Company Party and not described in clauses (i) through (xvi) above.
(b) Except for any Material Contract that has terminated or will terminate upon the expiration of the Acquired Companies stated term thereof prior to the Closing Date, (i) such Material Contracts are in full force and effect and represent the legal, valid and binding obligations of the applicable Company Party, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, and, are enforceable by the applicable Company Party to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law), (ii) neither the applicable Company Party or, to the knowledge of the Company, any other party thereto is in material breach of or material default (or would be in material breach, violation or default but for the existence of a cure period) under any purchase price adjustment thatMaterial Contract, in each case(iii) no Company Party has received any written or, to the knowledge of the Company, oral claim or notice of material breach of or material default under any Material Contract, (iv) to the knowledge of the Company, no event has occurred which, individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by any Company Party or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iiiv) each since September 30, 2022 through the date hereof, no Company Party has received written notice from any customer or supplier that is a party to any Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect that such party intends to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to terminate or affecting creditors’ rights or by general equitable principlesnot renew any Material Contract.
Appears in 1 contract
Sources: Business Combination Agreement (DT Cloud Acquisition Corp)
Contracts; No Defaults. (a) Section 4.13(aPart 3.20(a) of the Disclosure Letter lists contains an accurate and the Company made available complete list, and Seller has delivered to Parent prior to the date hereof copies of each of the following Contracts (Buyer accurate and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Seller Contract that involves performance of services or officer delivery of goods or Affiliate materials by Seller of the Companyan amount or value in excess of Fifty Thousand dollars ($50,000);
(ii) any Contracts evidencing, governing each Seller Contract that involves performance of services or relating delivery of goods or materials to Debt Seller of an amount or any guarantee by any Acquired Company of any other Person value in excess of Fifty Thousand dollars ($750,000, other than the Loan Documents50,000);
(iii) any Contracts each Seller Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, Seller in excess of Fifty Thousand dollars ($1,000,00050,000);
(iv) each Seller Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except for the Loan Documentspersonal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than Fifty Thousand dollars ($50,000); and with a term of less than one year);
(v) each Seller Contract with any labor union or other employee representative of a group of employees relating to wages, the Franchise Agreementshours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, the Management Agreement Documents and Organization Documentslosses, costs or liabilities by Seller with any Contracts other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict the Seller's business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates Seller to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating each Seller Contract providing for payments to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing by any Person with any preemptive rightbased on sales, right of participationpurchases or profits, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesother than direct payments for goods;
(ix) any Contracts relating to any currency hedgingeach power of attorney of Seller that is currently effective and outstanding;
(x) any Contracts containing “standstill” each Seller Contract entered into other than in the Ordinary Course of Business that contains or similar provisionsprovides for an express undertaking by Seller to be responsible for consequential damages;
(xi) any Contracts each Seller Contract for capital expenditures in excess of one hundred thousand dollars (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies$100,000);
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposaleach written warranty, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or guaranty and/or other similar agreement or arrangement relating undertaking with respect to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts contractual performance extended by Seller other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any Ordinary Course of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual PropertyBusiness; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(a) of the Disclosure Letter lists and the The Company has made available to Parent prior to the date hereof copies Buyer true and complete copies, of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired the Company is a party or by which any of their respective assets and properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):bound:
(i) any Contracts with any director, manager each Contract (other than routine purchase orders) that involves or officer will involve performance of services or Affiliate delivery of goods by the Company;
(ii) any Contracts evidencingeach lease, governing rental or relating to Debt occupancy agreement, license, installment and conditional sale agreement of the Company and each other Contract affecting the ownership, leasing or use of, title to, or any guarantee by leasehold or other interest in, any Acquired Company of any other Person in excess of $750,000, other than the Loan Documentsreal or personal property;
(iii) any Contracts that reflect transactionseach licensing or royalty agreement or similar with respect to patents, trademarks, copyrights or other than in Employed Intellectual Property, including all agreements with current or former employees, consultants or contractors regarding the ordinary course appropriation or the non-disclosure orally of businessthe Employed Intellectual Property, that involve expendituresand perpetual, in cash or any other form of consideration, in excess of $1,000,000paid-up licenses for commonly available software programs;
(iv) except for each collective bargaining agreement or other Contract with any labor union or other employee representative of a group of employees and each other written employment or consulting agreement with any employees or consultants;
(v) each joint venture or partnership Contract (however named) or similar Contracts involving a sharing of profits, losses, costs or liabilities by the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, Company with any Contracts other Person;
(vi) each Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any of their Affiliates, its Affiliates or to limit the freedom of any Acquired the Company or any of their its Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) each Contract providing for payments to or by any Contracts evidencing any employment Person based on sales, purchases or profits, other than direct payments for goods and salesman commission agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating each power of attorney granted by or to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect toCompany that is currently, or right to repurchase or redeemwill be at the Closing, any securitieseffective and outstanding;
(ix) any Contracts relating to any currency hedgingeach Contract for capital expenditures;
(x) any Contracts containing “standstill” each Contract between the Company and its former or similar provisionscurrent shareholders, directors, officers and employees or other Contract providing for a commitment of employment, consulting or management services;
(xi) any Contracts each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company, other than in the Ordinary Course of Business;
(Axii) to which any Governmental Body is a party each Contract, the termination of or default under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionCompany;
(xiii) relating each Contract (other than this Agreement) that (A) limits or restricts the ability of the Company to collective bargaining declare or pay dividends on, to make any other distribution in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur indebtedness, to incur or suffer to exist any Encumbrance, to purchase or sell any assets and properties, to change the lines of business in which it participates or engages or to engage in any merger or other agreement business combination or understanding with a labor union (B) requires the Company to maintain specified financial ratios or labor organizationlevels of net worth or other indicia of financial condition;
(xiv) each Contract under which the Company has advanced or loaned any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000funds;
(xv) any Contracts relating each Contract under which the Company subcontracts work to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any third parties outside of the Acquired Companies in excess Ordinary Course of $1,000,000Business;
(xvi) each Contract between or among the Company, on the one hand, and any Loan DocumentsShareholder or any of their affiliates, on the other hand;
(xvii) each Contract (other than routine purchase orders) that (A) involves the obligation to make a payment, pursuant to the terms of any Contracts for such Contract, by or to the acquisition Company and (B) cannot be terminated within 30 days after giving notice of termination without resulting in any cost or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;penalty to any Acquired Company; and
(xviii) any Contracts relating to the operations of the Propertieseach amendment, other than the Franchise Agreements, to all material advertising and marketing agreementssupplement, and credit card agreements, that involve annual expenditures modification (whether oral or written) in excess respect of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Each Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect and binding upon the Company and constitutes a legal, valid and binding agreement of each other party thereto, enforceable in accordance with respect to the Acquired Companies, and to the other parties theretoits terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer moratorium and other similar laws creditor’s rights laws. The Company has performed (and has no present expectations of general applicability relating not fully performing) all obligations required to be performed by it in connection with the Contracts and the Company is not in material violation of or material default under any such Contract (or with notice or lapse of time or both, would be in violation of or default under any such Contract) and no Contract has been canceled by any party thereto.
(c) The Company has not given to or affecting creditors’ received from any other Person any written or other notice or communication regarding any actual, alleged, possible or potential violation or breach of, or default under, any Contract.
(d) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any amounts paid or by general equitable principlespayable to the Company under any Contract and no Party to any Contract has made written demand for such renegotiation. No current customer has informed the Company that it shall stop or decrease its rate of business with the Company or that it desires to renegotiate any Contract.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aPart 3.17(a) of the Disclosure Letter lists contains a complete and the Company made available accurate list, and Seller have delivered to Parent prior to the date hereof copies of each of the following Contracts (Buyer true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any each Applicable Contract that involves performance of services or delivery of goods or materials by or to one or more Acquired Companies of an amount or value in excess of $ 5,000 (except for the Management Contracts with any director, manager or officer or Affiliate of which have been provided to Buyer and not included on the CompanyDisclosure Letter);
(ii) any Contracts evidencing, governing each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or relating to Debt receipts of one or any guarantee by any more Acquired Company of any other Person Companies in excess of $750,000, other than the Loan Documents1,000;
(iii) any Contracts that reflect transactionseach lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other than in Applicable Contract affecting the ordinary course of businessownership of, that involve expendituresleasing of, in cash title to, use of, or any leasehold or other form interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of consideration, in excess less than $1,000 and with terms of $1,000,000less than one year);
(iv) except for each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the Loan Documentsappropriation or the non-disclosure of any of the Intellectual Property Assets;
(v) any Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, the Franchise Agreementspartnership, the Management Agreement Documents and Organization Documentsother Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Contracts Acquired Company with any other Person;
(vii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of their Affiliates, an Acquired Company or to limit the freedom of any Acquired Company or any Affiliate of their Affiliates an Acquired Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating each Applicable Contract providing for payments to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing by any Person with any preemptive rightbased on sales, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect topurchases, or right to repurchase or redeemprofits, any securitiesother than direct payments for goods;
(ix) any Contracts relating to any currency hedgingeach power of attorney that is currently effective and outstanding;
(x) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Contracts containing “standstill” or similar provisionsAcquired Company to be responsible for consequential damages;
(xi) each Applicable Contract for capital expenditures in excess of $1,000; (xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Contracts Acquired Company other than in the Ordinary Course of Business; and
(xii) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Unless set forth in Part 3.17(b) of the Disclosure Letter:
(i) Seller (and no Related Person of Seller) has not entered into any arrangement that provides for current or future acquisition rights nor being subject to any obligation or liability that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) to the Knowledge of Seller and the Acquired Companies, no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to which the business of any Governmental Body is a party or under which any Governmental Body has any rights or obligationsAcquired Company, or (B) directly assign to any Acquired Company or indirectly benefiting to any Governmental Bodyother Person any rights to any invention, except for those instruments improvement, or documents entered into discovery.
(c) Unless set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company, and any other Person with any obligation or liability under any Contract, is and at all times since January 1, 2010 has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually Company is or in the aggregate, have a Material Adverse Effect on the Acquired Companieswas bound;
(xiiii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Contracts requiring that Acquired Company or other Person the right to delcare a default or exercise any of remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and (iv) no Acquired Companies give Company has given to or received from any other Person, at any time since January 1, 2010, any notice or provide other communication (whether oral or written) regarding any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposalactual, alleged, possible, or prior to entering into any discussions, agreement, arrangement potential violation or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, .
(iie) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default by the outstanding rights to renegotiate any material amounts paid or payable to any Acquired Companies, under, Company under current or completed Contracts with any Material Contract (in each case, with or without notice or lapse of time or both) Person and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesno such Person has made written demand for such renegotiation.
Appears in 1 contract
Sources: LLC Ownership Interest Purchase Agreement (Vystar Corp)
Contracts; No Defaults. (a) Section 4.13(aSchedule 3.13(a) contains a listing of all Contracts described in clauses (i) through (xiii) below to which, as of the Disclosure Letter lists date of this Agreement, such Company or any of its Subsidiaries is a party and has continuing obligations or rights. True, correct and complete copies of the Company Contracts listed on Schedule 3.13(a), including all amendments, schedules, exhibits and other attachments thereto, have been delivered to or made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party Buyer or by which any of their respective properties its agents or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):representatives.
(i) Each Contract that such Company reasonably anticipates will involve aggregate payments or consideration furnished by or to such Company or any Contracts with of its Subsidiaries of more than $1,000,000 in any director, manager or officer or Affiliate of the Companycalendar year;
(ii) any Contracts evidencingEach Contract or group of related Contracts, governing which involve commitments to make capital expenditures or relating to Debt which provide for the purchase of assets, goods, materials, supplies, equipment or services by such Company or any guarantee by of its Subsidiaries from any Acquired Company one Person (or group of any other Person Affiliated Persons) under which the undelivered balance of such goods or services has a purchase price in excess of $750,000750,000 in any consecutive 12-month period after the date hereof and which are not terminable without material penalty by such Company or its Subsidiary, other than the Loan Documentsas applicable, upon ninety 90 days’ or less advance notice;
(iii) Each Contract (A) that grants or purports to grant any Contracts Person any exclusive license, supply, distribution, purchase or other exclusive rights, (B) that reflect transactionsgrants or purports to grant any Person any “most favored nation” pricing terms or similar rights, other than (C) that presently limits (or will, with the passage of time, limit) in any respect the ordinary course freedom of business, that involve expenditures, in cash such Company or any other form of considerationits Subsidiaries to engage or compete in any business or to engage or compete in any business in any location or to otherwise compete with any Person, in excess or (D) that prohibits or limits the ability of $1,000,000any Person to compete with any of the Companies or any of their Subsidiaries;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated)Each Contract, in each case, having value that is a secured obligation relating to indebtedness for borrowed money by such Company or its Subsidiaries of more than $500,000;
(xvv) any Contracts Each Contract relating to the development disposition or construction of, acquisition by such Company or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess its Subsidiaries of $1,000,000any business (whether by merger, sale or purchase of assets, sale or purchase of stock or equity ownership interests or otherwise) (A) entered into on or after December 31, 2010 or (B) that contains material surviving obligations of such Company or any of its Subsidiaries;
(xvivi) Each Contract, other than with respect to “off-the-shelf” software, that (a) requires a license or royalty payment to, or license or royalty payment by, such Company or its Subsidiaries of more than $500,000 in any Loan Documentscalendar year or (b) relates to Intellectual Property and is material to such Company’s or its Subsidiaries businesses;
(xviivii) (A) Each Contract under which such Company or one of its Subsidiaries leases (including as lessor), subleases (including as sub-lessor) or occupies Leased Real Property and (B) any Contracts for other Contract pursuant to which such Company or any of its Subsidiaries is a lessor or lessee of any personal property or holds or operates any material tangible personal property owned by another Person, except, in the acquisition or disposition, directly or indirectly case of both (by merger or otherwiseA) and (B), of assets for any such Contracts under which the aggregate annual payments to or capital stock or other equity interests of another Person for aggregate consideration from such Company and its Subsidiaries is less than $250,000 in excess of $1,000,000any calendar year;
(xviiiviii) Each employment or independent contractor or consulting Contract (including confidentiality and non-competition Contracts) with a natural Person that involves total cash consideration of more than $250,000 in any Contracts calendar year, in each case, which may not be terminated at will or by giving notice of 30 days or less without cost or penalty;
(ix) Each Affiliate Agreement;
(x) Each Contract relating to the operations incurrence of the Propertiesindebtedness by such Company or any of its Subsidiaries and each Contract under which such Company or any of its Subsidiaries has made advances or loans to any other Person, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into employee loans in the ordinary course of business;
(xi) Each joint venture Contract, partnership agreement or potential limited liability company agreement and each similar type of Contract (however named) involving a sharing of profits, losses, costs or liabilities with any other Person, other than those disclosed on Schedule 3.14;
(xii) Each Contract for the acquisition or disposition of customer accounts or customer Contracts or similar assets of any of the Acquired Companies under with (i) material surviving rights or obligations of such Company or any of its Subsidiaries or (ii) any put or call rights, purchase price adjustment thator sale options or similar rights in respect of any or all of the customer accounts or customer Contracts so acquired or disposed that may be exercisable following the date hereof; and
(xiii) any other Contract used in the operation or conduct of the business of such Company and its Subsidiaries entered into outside the ordinary course of business to which such Company or any of its Subsidiaries is a party or by or to which any such Company or any of its Subsidiaries is bound or subject and that has an aggregate future liability to any Person in excess of $1,000,000.
(b) All of the Material Contracts are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of such Company or one of its Subsidiaries party thereto and, to the Knowledge of such Company, represent the legal, valid and binding obligations of the other parties thereto, in accordance with their terms and subject, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement Bankruptcy Exception. Such Company and its applicable Subsidiaries party to any Material Contracts have materially performed all obligations required to be performed by it pursuant to such Material Contracts and is not in violation or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) and, to the knowledge Knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation ofCompany, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each casethat, with or without notice or lapse of time or both, would constitute a material default by such Company or its applicable Subsidiaries (as the case may be) and under any of the Material Contracts. To the Knowledge of such Company, (iiiA) each no other party to any Material Contract is validin breach of or default under any such Material Contract, binding and enforceable in accordance with its terms and is in full force and effect nor has any other party exercised any termination rights with respect to the Acquired Companiesany Material Contracts, and to the (B) there are no existing threats of default, breaches or violations of any Material Contract by any other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesparty.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aPart 3.16(a) of the Disclosure Letter lists contains a complete and the Company made available accurate list, and Seller has delivered to Parent prior to the date hereof Buyer true and complete copies of each of the following Contracts (and all amendmentsor, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything hereinwhere applicable, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closingforms), (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Contract that involves performance of services or officer delivery of goods or Affiliate materials by the Company of the Companyan amount or value in excess of CDN [***];
(ii) any Contracts evidencing, governing each Contract that involves performance of services or relating delivery of goods or materials to Debt or any guarantee by any Acquired the Company of any other Person an amount or value in excess of $750,000, other than the Loan Documents;CDN [***]; [***] - CONFIDENTIAL TREATMENT REQUESTED
(iii) any Contracts each Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, the Company in excess of $1,000,000CDN [***];
(iv) except for each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than CDN [***] and with terms of less than one year);
(v) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, and form agreements generally used with employees, consultants and contractors in respect thereof;
(vi) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person other than payments to employees under an Employee Plan;
(viii) each Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any of their Affiliates, or to limit the freedom of any Acquired the Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) each Contract providing for payments to or by any Contracts relating Person based on sales, purchases, or profits, other than direct payments for goods or services performed except for payments to any currency hedgingemployees pursuant to written policies);
(x) any Contracts containing “standstill” each power of attorney or similar provisionsprocuration that is currently effective and outstanding, except as executed in the Ordinary Course of Business (with respect to customs);
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except each Contract obligating the Company for those instruments or documents entered into by the Acquired Companies capital expenditures in the ordinary course excess of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired CompaniesCDN [***];
(xii) any Contracts requiring that any each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company other than in the Ordinary Course of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;Business; and
(xiii) relating to collective bargaining each amendment, supplement, and modification (whether oral or other agreement or understanding with a labor union or labor organization;
(xivwritten) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would notset forth in Part 3.16(b) of the Disclosure Letter:
(i) Seller (and no Related Person of Seller) does not have nor may Seller acquire any rights under, individually and Seller does not have, nor may Seller become subject to any obligation or liability under, any Contract that relates solely to the business of, or any of the assets owned or used by, the Company; and
(ii) there is no shareholder agreement that restricts, in whole or in part, the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none ability of the Acquired Companies directors to manage the business and affairs of the Company.
(c) Except as set forth in Part 3.16(c) of the Disclosure Letter,each Applicable Contract identified or required to be identified in Part 3.16(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and principles governing the availability of equitable remedies.
(d) Except as set forth in Part 3.16(d) of the Disclosure Letter:
(i) the Company is, and at all times since January 1, 1999, has received any written claim been, in substantial compliance with the terms and requirements of default under any such Material Contract and each Applicable Contract;
(Bii) to the knowledge Knowledge of Seller, each other Person that has or had any obligation or liability under each Applicable Contract at all times since January 1, 1999 has been, in substantial compliance with the terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) is reasonably likely to contravene, conflict with, or result in a violation or breach of, or give the Company Parties: or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iiv) none of the Acquired Companies is and no Company has not given to or received from any other party is Person, at any time since January 1, 1999, any notice or other communication (either in writing, or to the Seller's Knowledge, oral) regarding any actual or alleged violation or breach or violation of, or default under, any Material Applicable Contract. [***] - CONFIDENTIAL TREATMENT REQUESTED
(e) There are no renegotiations of or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Applicable Contracts with any Person and, to the Knowledge of Seller, no such Person has made written demand for such renegotiation.
(iif) no event has occurred which would result in a breach or violation ofThe Applicable Contracts relating to the sale, design, manufacture, or a default provision of products or services by the Acquired CompaniesCompany have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, underor any consideration having been paid or promised, that is or would be in violation of any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 3.20(a) of the Disclosure Letter lists contains an accurate and the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):complete list of:
(i) any Contracts each Contract that involves the future performance of services or delivery of goods or materials by Seller with any directoran aggregate value of more than Twenty Five Thousand Dollars ($25,000), manager or officer or Affiliate of the Companyincluding Seller’s agreements with distributors;
(ii) any Contracts evidencing, governing each Contract that involves future performance of services or relating delivery of goods or materials to Debt or any guarantee by any Acquired Company Seller with an aggregate value of any other Person in excess of more than Twenty Five Thousand Dollars ($750,000, other than the Loan Documents25,000);
(iii) any Contracts each Contract that reflect transactions, other than was not entered into in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000consistent with past practice;
(iv) except for each lease, rental, occupancy, license, installment, conditional sale or similar Contract or arrangement affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any real property providing for future monthly rental payments;
(v) each lease, rental, license, installment, conditional sale or similar Contract or arrangement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any Tangible Personal Property providing for future monthly rental payments;
(vi) each licensing agreement or other applicable Contract with respect to Seller’s Intellectual Property Rights and Licensed Rights (whether inbound or outbound), including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Rights or Licensed Rights, but excluding licensing agreements or other applicable Contracts with respect to commercial, off-the-shelf software;
(vii) each collective bargaining, employment, deferred compensation, severance and similar agreement, or any other type of Contract with any of Seller’s officers, directors or employees, other than Employee Benefit Plans;
(viii) each franchise, joint venture, partnership, strategic alliance, co-marketing, co-promotion, co-packaging or joint development Contract or similar Contract involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(ix) each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company Seller or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates Seller to engage in any line of business or to compete with any Person or in which contain any geographic area exclusivity, non-competition, non-solicitation or to no-hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedgingprovisions;
(x) each Contract providing for payments to or by any Contracts containing “standstill” Person based on sales, purchases, or similar provisionsprofits, other than direct payments for goods or services;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except each Contract for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companiescapital expenditures;
(xii) any Contracts requiring that any of the Acquired Companies give any notice each written warranty, guaranty, and or provide any information other similar undertaking with respect to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactioncontractual performance by Seller extended by Seller;
(xiii) relating to collective bargaining or other agreement or understanding each Contract with a labor union or labor organizationGovernment Body;
(xiv) any Contracts relating each other Contract, if any, with outstanding obligations owing to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property from Seller in respect an amount in excess of future or existing transactions Twenty Five Thousand Dollars (including transactions that have not been consummated$25,000), in each case, having value of more than $500,000;; and
(xv) any Contracts relating to the development each amendment, supplement, and modification (whether oral or construction of, or additions or expansions to, any real property that would involve the expenditure by written) in respect of any of the Acquired Companies in excess foregoing. Seller has delivered to Buyer accurate and complete copies of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or dispositioneach written contract that is listed on Schedule 3.20(a); provided that with respect to form documents, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating Seller has delivered to the operations Buyer a copy of the Propertiesform document only. Schedule 3.20(a) sets forth, other than the Franchise Agreements, with respect to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreementseach such Contract, the Management Agreement Documents or parties thereto and the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements name and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractdate thereof.”
(b) Except as would notset forth in Schedule 3.20(b), individually no Related Person of Seller has or in the aggregatemay acquire any rights under, have a Material Adverse Effect on the Acquired Companiesor has or may become subject to any Liability under, any Contract.
(Ac) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of Each Contract included in the Acquired Companies Assets or the Assumed Liabilities is legal, valid, binding and enforceable against Seller, and to the Knowledge of Seller, against each other party thereto, is in full force and effect and will continue to be so legal, valid, binding and enforceable and in full force and effect following the assignment of such Contract at the Closing or pursuant to other arrangements in accordance with this Agreement, as the case may be, and (ii) Seller is not and, to Seller’s Knowledge, no other party is is, in material breach or violation ofdefault, or default underand, any Material Contractto the Knowledge of Seller, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract constitute (in each case, with or without notice or lapse of time or both) and a material breach (iiior give rise to any right of termination, modification, cancellation or acceleration) each Material Contract is validunder any such Contract.
(d) There are no current renegotiations of, binding and enforceable in accordance with its terms and is in full force and effect with respect or to the Acquired CompaniesKnowledge of Seller pending attempts to renegotiate, any material amounts paid or payable to Seller under current or completed Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(e) Each Contract relating to the sale, design, manufacture or provision of products or services by Seller has been entered into in the ordinary course of business, consistent with past practice, of Seller and has been entered into without (i) the commission of any act alone or in concert with any other parties theretoPerson, except as enforceability may be limited by applicable bankruptcyor (ii) any consideration having been paid or promised, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws in each case in violation of general applicability relating to or affecting creditors’ rights or by general equitable principlesany Legal Requirement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fox Factory Holding Corp)
Contracts; No Defaults. (a) Section 4.13(a) 4.12 of the Company Disclosure Letter lists and contains a listing of all Contracts described in clauses (i) through (xvii) below to which, as of the date of this Agreement, the Company or any of its Subsidiaries is a party. True, correct and complete copies of the Contracts listed on Section 4.12 of the Company Disclosure Letter have been delivered to or made available to Parent prior to the date hereof copies of each of the following Contracts (and Acquiror or its agents or representatives, together with all amendments, modifications and supplements amendments thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):.
(i) any Each Contract (other than (x) purchase orders issued by or to suppliers or customers entered into in the ordinary course of business and (y) Contracts with any director, manager or officer or Affiliate of the Companytype (without giving effect to dollar thresholds) described in other clauses of this Section 4.12(a)) that the Company reasonably anticipates will involve aggregate payments or consideration furnished by or to the Company or any of its Subsidiaries of more than $1,000,000 during calendar year 2016;
(ii) any Contracts evidencingEach note, governing debenture, other evidence of indebtedness, guarantee, loan, credit or relating to Debt financing agreement or instrument or other contract for money borrowed by the Company or any guarantee by of its Subsidiaries, including any Acquired Company of any other Person in excess of $750,000agreement or commitment for future loans, other than the Loan Documentscredit or financing;
(iii) Each Contract for the acquisition of any Contracts that reflect transactions, Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries (other than in the ordinary course of business, that involve expenditures), in cash or any other form of considerationeach case, involving payments in excess of $1,000,000, other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;
(iv) except Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any Contracts that leasehold or other interest in any way purport real or personal property and involves aggregate payments in excess of $1,000,000 in any calendar year;
(v) Each joint venture Contract, partnership agreement, or limited liability company agreement;
(vi) Contracts with each current officer, director, or current employee or worker of or consultant to restrict the business activity of any Acquired Company or any of their Affiliatesits Subsidiaries, who receives annual base compensation (excluding bonus and other benefits) in excess of $300,000;
(vii) Contracts with any employee or consultant to limit the freedom of any Acquired Company or any of their Affiliates its Subsidiaries that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by or triggered by the consummation of the transactions contemplated by this Agreement;
(viii) Contracts containing covenants of the Company or any of its Subsidiaries prohibiting or limiting the right of the Company or any of its Subsidiaries to engage engage, compete or solicit any Person in any line of business or prohibiting or restricting their ability to compete conduct business with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesarea;
(ix) any Any Contracts either (x) to which the Company is a party or (y) to the knowledge of the Company, and relating to the voting of the equity interests or the election of directors, officers or managers, as applicable, of the Company or any currency hedgingof its Subsidiaries, or granting a right of first refusal, first offer or similar preferential right to purchase or acquire equity interests of the Company or any of its Subsidiaries;
(x) Any collective bargaining agreement or Contract with any Contracts containing “standstill” labor union, works council or similar provisionsother body representing employees of the Company or any of its Subsidiaries;
(xi) Each Contract pursuant to which the Company or any of its Subsidiaries grants or permits or is granted or is permitted the right to use or register material Intellectual Property (other than standard form Contracts granting rights to use readily available shrink wrap or click wrap software), including license agreements, coexistence agreements, and covenants not to s▇▇;
(xii) Each Contract requiring capital expenditures after the date of this Agreement in an amount in excess of $1,000,000 in any calendar year;
(xiii) Any Contract that (A) grants to which any Governmental Body is a party or under which third person any Governmental Body has any rights or obligations, “most favored nation rights” or (B) directly grants to any third person price guarantees for a period greater than one year from the date of this Agreement and are reasonably anticipated to result in a liability of the Company and requires aggregate future payments to the Company or indirectly benefiting any Governmental Body, except for those instruments or documents of its Subsidiaries in excess of $1,000,000 per annum;
(xiv) Any Contract entered into by in the Acquired Companies last twelve (12) months reflecting the settlement of any Legal Proceedings, other than (A) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company or any of its Subsidiaries, in the ordinary course of their respective businessesbusiness consistent with past practice with the routine cessation of such employee’s or independent contractor’s employment or service, as applicable, with the absence Company or any of its Subsidiaries, (B) Contracts reflecting the settlement of any Legal Proceedings in which would not, individually the liability is covered by insurance or in the aggregate, (C) settlement Contracts for cash only (which have a Material Adverse Effect on the Acquired Companiesbeen paid) that do not exceed $1,000,000;
(xiixv) any Contracts requiring that Any power of attorney or agency agreement to which the Company or any of its Subsidiaries is a party (other than powers of attorney granted to local attorneys, agents or accountants or their respective firms for the Acquired Companies give purposes of registrations, filings or corporate formation, tax filings or administration matters for corporate entities) involving any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionpayments by the Company in excess of $100,000;
(xiiixvi) relating Any Contract providing for indemnification (including any obligation to collective bargaining advance funds for expenses) of the current or other agreement former directors or understanding with a labor union officers of the Company or labor organization;any of its Subsidiaries; and
(xivxvii) Contracts involving the profit sharing of the Company or any of its Subsidiaries in excess of $500,000 in any given year.
(b) As of the date of this Agreement, all of the Contracts relating listed pursuant to Section 4.12(a) are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or one of its Subsidiaries party thereto and, to the sale or exchange ofknowledge of the Company, or option to sell or exchangerepresent the legal, any real property, or to valid and binding obligations of the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated)other parties thereto. Except, in each case, having value where the occurrence of more than $500,000;
such breach or default would not have, or would not reasonably be expected to have, a Company Material Adverse Effect, (xvx) the Company and its Subsidiaries have performed in all material respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.12(a) and neither the Company, any Contracts relating of its Subsidiaries nor, to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary knowledge of the Company;
, any other party thereto is in material breach of or default under any such Contract, (xxy) any Contracts other than in connection with as of the Franchise Agreementsdate of this Agreement, neither the Management Agreement Documents or the Loan Documents under which Company nor any of its Subsidiaries has received any claim or notice of termination or breach of or default under any such Contract, and (z) to the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability knowledge of the Acquired Companies under any purchase price adjustment thatCompany, in each caseno event has occurred which individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Sources: Merger Agreement (GP Investments Acquisition Corp.)
Contracts; No Defaults. (a) Section 4.13(aPart 3.20(a) of the Disclosure Letter lists contains an accurate and the Company made available complete list, and Seller has delivered to Parent prior to the date hereof copies of each of the following Contracts (Buyer accurate and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Seller Contract that involves performance of services or officer delivery of goods or Affiliate materials by Seller of the Companyan amount or value in excess of Fifty Thousand dollars ($50,000);
(ii) any Contracts evidencing, governing each Seller Contract that involves performance of services or relating delivery of goods or materials to Debt Seller of an amount or any guarantee by any Acquired Company of any other Person value in excess of Fifty Thousand dollars ($750,000, other than the Loan Documents50,000);
(iii) any Contracts each Seller Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, Seller in excess of Fifty Thousand dollars ($1,000,00050,000);
(iv) each Seller Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except for the Loan Documentspersonal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than Fifty Thousand dollars ($50,000); and with a term of less than one year);
(v) each Seller Contract with any labor union or other employee representative of a group of employees relating to wages, the Franchise Agreementshours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, the Management Agreement Documents and Organization Documentslosses, costs or liabilities by Seller with any Contracts other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict the Seller's business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates Seller to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating each Seller Contract providing for payments to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing by any Person with any preemptive rightbased on sales, right of participationpurchases or profits, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesother than direct payments for goods;
(ix) any Contracts relating to any currency hedgingeach power of attorney of Seller that is currently effective and outstanding;
(x) any Contracts containing “standstill” each Seller Contract entered into other than in the Ordinary Course of Business that contains or similar provisionsprovides for an express undertaking by Seller to be responsible for consequential damages;
(xi) any Contracts each Seller Contract for capital expenditures in excess of one hundred thousand dollars (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies$100,000);
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposaleach written warranty, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or guaranty and/or other similar agreement or arrangement relating undertaking with respect to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts contractual performance extended by Seller other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any Ordinary Course of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual PropertyBusiness; and
(xxiiixiiii) each amendment, supplement and modification (whether oral or written) in respect of any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would notWith respect to each agreement so listed: (i) the agreement is legal, individually or valid, binding and enforceable and in full force and effect, subject to bankruptcy, insolvency and similar laws affecting the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none rights of the Acquired Companies has received any written claim of default under any such Material Contract creditors generally; and (Bii) neither Seller nor, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Seller, any other party thereto, is in material breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlessuch agreement.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(a3.20(a) of the Disclosure Letter lists Schedule contains an accurate and the Company made available complete list, and Seller has delivered to Parent prior to the date hereof copies of each of the following Contracts (Buyer accurate and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Seller Contract that involves performance of services or officer delivery of goods or Affiliate materials by Seller of the Companyan amount or value in excess of Ten Thousand Dollars ($10,000.00);
(ii) any Contracts evidencing, governing each Seller Contract that involves performance of services or relating delivery of goods or materials to Debt Seller of an amount or any guarantee by any Acquired Company of any other Person value in excess of Ten Thousand Dollars ($750,000, other than the Loan Documents10,000.00);
(iii) any Contracts each Seller Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, Seller in excess of One Thousand Dollars ($1,000,0001,000.00);
(iv) each Seller Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except for the Loan Documentspersonal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than One Thousand Dollars ($1,000.00) and with a term of less than one year);
(v) each Seller Contract with any labor union or other employee representative of a group of employees relating to wages, the Franchise Agreementshours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, the Management Agreement Documents and Organization Documentslosses, costs or liabilities by Seller with any Contracts other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict the Seller's business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates Seller to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating each Seller Contract providing for payments to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing by any Person with any preemptive rightbased on sales, right of participationpurchases or profits, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securitiesother than direct payments for goods;
(ix) any Contracts relating to any currency hedgingeach power of attorney of Seller that is currently effective and outstanding;
(x) any Contracts containing “standstill” each Seller Contract entered into other than in the Ordinary Course of Business that contains or similar provisionsprovides for an express undertaking by Seller to be responsible for consequential damages;
(xi) any Contracts each Seller Contract for capital expenditures in excess of Ten Thousand Dollars (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies$10,000.00);
(xii) any Contracts requiring that any each Seller Contract in respect of the Acquired Companies give any notice bank borrowings or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionin which Seller otherwise borrows money from another Person;
(xiii) relating each written warranty, guaranty and/or other similar undertaking with respect to collective bargaining or contractual performance extended by Seller other agreement or understanding with a labor union or labor organization;than in the Ordinary Course of Business; and
(xiv) any Contracts relating to the sale each amendment, supplement and modification (whether oral or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property written) in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 1 contract
Sources: Asset Purchase Agreement (Winnebago Industries Inc)
Contracts; No Defaults. (ai) Section 4.13(aSchedule 6(q) contains a complete and accurate list, and the Representative has delivered to Buyer true and complete copies of (or, in the case of the Disclosure Letter lists and the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendmentsthree oral contracts listed on such Schedule, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that descriptions of):
(1) will be fully performed and satisfied on each Applicable Contract that involves performance of services or prior to the Closing, (2) is a Ground Lease delivery of goods or (3) is materials by one or more Acquired Companies of an Organizational Document):
(i) any Contracts with any director, manager amount or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person value in excess of $750,000, other than the Loan Documents50,000;
(iii2) any Contracts each Applicable Contract that reflect transactions, other than in the ordinary course involves performance of business, that involve expenditures, in cash services or any other form delivery of consideration, goods or materials to one or more Acquired Companies of an amount or value in excess of $1,000,00050,000;
(iv3) except for each Applicable Contract that involves expenditures or receipts of one or more Acquired Companies in excess of $50,000;
(4) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property;
(5) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(6) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(7) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(8) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of their Affiliates, any Acquired Company or to limit the freedom of any Acquired Company or any Affiliate of their Affiliates any Acquired Company to engage in any line of business or to compete with any Person;
(9) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods or services;
(10) each power of attorney that is currently effective and outstanding;
(11) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any geographic area Acquired Company to be responsible for consequential damages;
(12) each Applicable Contract for capital expenditures in excess of $50,000;
(13) each written warranty, guaranty, and other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business; and
(14) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(ii) Schedule 6(q) sets forth reasonably complete details concerning such Contracts, including the parties to hire or retain any Personthe Contracts, except for customary restrictions imposed by localities as a condition to approval the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies’ development projects;office where details relating to the Contracts are located.
(viii) Except as set forth in Schedule 6(q):
(1) no Seller (and no Affiliate of any Contracts Seller) has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that provide an obligation relates to fund the business of, or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the assets owned or used by, any Acquired Companies, or other Person (other than any Organizational Document);Company; and
(vi2) any Contracts providing for any indemnification obligations in effect for any current or former no officer, director, trustee agent, employee, consultant, or employee;
(vii) contractor of any Contracts evidencing Acquired Company is bound by any employment agreements, severance, change in control or termination agreements with any Contract that purports to limit the ability of such officer, director, trustee agent, employee, consultant, or employee;
(viii) any Contracts contractor to (A) engage in or continue any conduct, activity, or practice relating to the acquisition, issuance, voting, registration, sale or transfer business of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligationsCompany, or (B) directly assign to any Acquired Company or indirectly benefiting to any Governmental Bodyother Person any rights to any invention, except for those instruments improvement, or documents entered into by the discovery.
(iv) Except as set forth in Schedule 6(q), each Contract identified or required to be identified in Schedule 6(q) is in full force and effect and is valid and enforceable in accordance with its terms.
(v) Except as set forth in Schedule 6(q):
(1) each Acquired Companies Company is, and at all times has been, in the ordinary course compliance in all material respects with all applicable terms and requirements of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companieseach Applicable Contract;
(xii2) any Contracts requiring that any to the Knowledge of the Acquired Companies give Principal Shareholders and the Company, each other Person that has or had any notice obligation or provide liability under any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposalApplicable Contract is, or prior to entering into any discussionsand at all times has been, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionin compliance in all material respects with all applicable terms and requirements of such Applicable Contract;
(xiii3) relating to collective bargaining no event has occurred or other agreement circumstance exists that (with or understanding with a labor union without notice or labor organization;
(xivlapse of time) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would could reasonably be expected to contravene, conflict with, or result in future payments of more than $1,000,000;
(xxi) a violation or breach of, or give any Contract relating Acquired Company or any other Person the right to declare a default or exercise any remedy under, or to accelerate the settlement maturity or proposed settlement of any Legal Proceedingperformance of, which involves the issuance of equity securities or the payment of an amountto cancel, in any such caseterminate, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documentsor modify, any license, royalty or other Contract concerning material Intellectual PropertyApplicable Contract; and
(xxiii4) no Acquired Company has given to or received from any Contract other Person any notice or other communication (other than Contracts referenced in clauses (iwhether oral or written) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would notregarding any actual, individually alleged, possible, or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in potential violation or breach or violation of, or default under, any Material Applicable Contract, .
(iivi) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Applicable Contracts with any Person and no such Person has made written demand for such renegotiation.
(vii) The Applicable Contracts relating to the sale, design or provision of products or services by the Acquired CompaniesCompanies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, underor any consideration having been paid or promised, that is or would be in violation of any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 4.11(a) sets forth a list, as of the Disclosure Letter lists and the Company made available to Parent prior to the date hereof copies of each this Agreement, of all of the following Contracts (and all amendments, modifications and supplements thereto) to which the Company or any Acquired Company of its Subsidiaries is a party or by which any of their respective properties or assets are bound (notwithstanding anything hereineach such Contract and each Material Real Property Lease, a “Material Contract” ”); provided that purchase orders, sale orders and similar form Contracts need not be listed on Schedule 4.11(a), but shall not include any Contract that (1) will be fully performed nonetheless constitute Material Contracts if otherwise covered by the terms of this Section 4.11(a). True, correct and satisfied on complete copies of the Material Contracts have been delivered to or prior made available to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):Acquiror:
(i) any Contracts each employee collective bargaining Contract with any directorlabor union, manager works council, or officer any collective bargaining representative, including any memoranda of understanding, letters of agreement, letters of understanding, side agreements, side letters, settlement agreements containing ongoing remedial obligations, card check neutrality agreements, and any agreements with any labor union, works council, or Affiliate any collective bargaining representative of a substantially similar nature to the Companyforegoing (a “Labor Contract”);
(ii) any Contracts evidencing, governing or relating Contract pursuant to Debt which the Company or any guarantee by of its Subsidiaries (A) is granted a license, sublicense, consent, or covenant not to assert under, or is otherwise permitted to use any Acquired third-party Intellectual Property that is material to the Company of any other Person in excess of $750,000and its Subsidiaries, taken as a whole, other than shrink-wrap, click-wrap and off-the Loan Documents;
shelf software licenses, and any other licenses for software that is commercially available to the public generally with one-time or annual license, maintenance, support and other fees of $3,000,000 or less or (iiiB) grants to a third party a license, sublicense, consent, or covenant not to assert under, to or otherwise permits a third party to use, any Contracts Intellectual Property owned by the Company or any of its Subsidiaries that reflect transactionsis material to the Company and its Subsidiaries, taken as a whole, other than non-exclusive licenses granted in the ordinary course of business;
(iii) other than the Company Credit Documents, that involve expendituresany Contract under which the Company or any of its Subsidiaries has (A) created, incurred, assumed or guaranteed indebtedness for money borrowed, (B) granted a Lien (other than any Lien incurred in the ordinary course of business or Permitted Liens) on its assets, whether tangible or intangible, to secure any indebtedness for money borrowed or (C) extended credit to any Person (other than (I) intercompany loans and advances and (II) customer payment terms in the ordinary course of business), in cash each case, in clauses (A) and (C), in an amount in excess of $25,000,000 of committed credit;
(iv) any Contract (other than any Company Benefit Plan) not disclosed pursuant to any other clause under this Section 4.11(a) (A) requiring expenditures by the Company or any other form of considerationits Subsidiaries, or the receipt by the Company or any of its Subsidiaries, in excess of $1,000,000;
10,000,000 in the 2024 calendar year or (ivB) except for that required expenditures by the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliatesits Subsidiaries, or to limit under which the freedom of any Acquired Company or any of their its Subsidiaries received, in excess of $10,000,000 in the 2023 calendar year;
(v) each Contract under which the Company or any of its Subsidiaries completed a business acquisition (A) in which the aggregate consideration paid by the Company or its applicable Subsidiary exceeded $100,000,000 or (B) which contain ongoing material obligations of the Company or any of its Subsidiaries, including any “earn-out” or contingent payment obligations;
(vi) any Contract establishing any joint venture, strategic alliance or other collaboration that is material to the business of the Company and its Subsidiaries, taken as a whole;
(vii) each Affiliate Agreement;
(viii) each Contract with a Top Customer or Top Supplier;
(ix) each Contract with any Governmental Authority, other than any Contract entered into by any Governmental Authority in its capacity as a customer (unless otherwise disclosed pursuant to any other clause under this Section 4.11(a));
(x) any Contract for the employment or service of any employee, officer, director, or individual service provider, that provides for an annual base salary in excess of $350,000 (other than any “at will” Contract that may be terminated by the Company or any of its Subsidiaries upon thirty (30) days or less advance notice without liability to the Company or any of its Subsidiaries);
(xi) any Contract providing for the payment (or acceleration of the vesting, timing, or funding or increase in the amount) of severance, change in control, retention, sale or transaction or similar bonuses or benefits to employees, officers, directors or individual service providers of the Company or any of its Subsidiaries;
(xii) any Contract under which the Company or any of its Subsidiaries has made (or committed to make) any advance, loan, extension of credit or capital contribution to, or other investment in, any Person, in any such case which, individually, is in excess of $10,000,000, other than credit extended to commercial counterparties in the ordinary course of business;
(xiii) any Contract purporting to limit, in any material respect, the freedom of the Company or any of its Affiliates to engage in any line of business or to compete with any Person or operate in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated)jurisdiction, in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts containing restrictions relating to confidentiality or exclusive supplier or vendor arrangements entered into in the ordinary course of business;
(xiv) any Contract granting most favored nation pricing to any customer, licensee, purchaser, reseller, promoter or potential liability remarketer of any product or service offered by the Company or any of its Subsidiaries; and
(xv) any Contract restricting the freedom of the Acquired Companies under Company or any purchase price adjustment thatof its Subsidiaries to (A) solicit or hire employees or (B) solicit any customer, vendor or supplier other than, in each case of this Section 4.11(a)(xv), commercial Contracts with third-party service providers and non-disclosure agreements related to potential acquisitions of businesses or assets, in each case, entered into in the ordinary course of business.
(b) Except as set forth on Schedule 4.11(b), (i) as of the date of this Agreement, all of the Material Contracts are in full force and effect and represent the legal, valid and binding obligations of the Company or one of its Subsidiaries party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto (subject to the Remedies Exception), (ii) none of the Company, any of its Subsidiaries or, as of the date of this Agreement and to the knowledge of the Company, any other party thereto, is in material breach of or material default under any such Material Contract, (iii) as of the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written claim or notice of material breach of or material default under any such Material Contract, and (iv) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to by the knowledge Company or any Subsidiary of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Sources: Merger Agreement (Home Depot, Inc.)
Contracts; No Defaults. (a) Section 4.13(aPart 3.15(a) of the Disclosure Letter lists contains a complete and the Company made available to Parent prior to the date hereof copies accurate list of each of the following Applicable Contracts (and in effect as of the date hereof, whether oral or written, along with a description of all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
oral Applicable Contracts: (i) each agreement that involves aggregate future payments by any Contracts with any director, manager or officer or Affiliate Seller of the Company;
more than $75,000; (ii) any Contracts evidencingeach supply, governing distributorship, sales agency, franchise, joint venture or relating partnership agreement; (iii) each agreement not made in the Ordinary Course of Business which is to Debt be performed after the Closing; (iv) each outstanding commitment to make a capital expenditure, capital addition or any guarantee by any Acquired Company of any other Person capital improvement involving an amount in excess of $750,000, other than 50,000; (v) each real or personal property lease; (vi) each agreement to be assumed by the Loan Documents;
Buyer relating to the loan of money or availability of credit to or from any Seller; (iiivii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit each agreement limiting the freedom of any Acquired Company or any of their Affiliates Seller to engage compete in any line of business or to compete with any Person Person; (viii) each agreement, contract, arrangement or in understanding between any geographic area Seller and any present or former employee, or other agreements relating to hire the provision of services; (ix) each license agreement relating to patents, trademarks, know-how or retain other intellectual property, whether as licensee or licensor; (x) each collective bargaining agreement or other contract or commitment to or with any Personlabor union or other group of employees; (xi) each mortgage, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund pledge, security, title retention, or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of similar agreement encumbering any of the Acquired Companies, or other Person Assets; (other than any Organizational Document);
(vixii) any Contracts each agreement providing for payments to or by any indemnification Person based on sales, purchases, revenues, profits or assets; (xiii) each guaranty or similar undertaking with respect to the obligations in effect for of any current or former officer, director, trustee or employee;
other Person; (viixiv) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) each agreement relating to the acquisitionacquisition or disposition of significant assets, issuancebusinesses or companies within the past five years; and (xv) each other agreement which cannot be terminated by any Seller without consequences of a default or termination having a Material Adverse Effect. In addition, voting, registration, sale or transfer of any securities, (BPart 3.15(a) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right Disclosure Letter contains a complete and accurate list of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any all Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body the Stockholder is a party that relate to the Business. The Sellers have delivered to the Buyer true and complete copies of all of the Contracts listed in Part 3.15(a) of the Disclosure Letter.
(b) Except as set forth in Part 3.15(b) of the Disclosure Letter, each Contract ("Material Applicable Contract") identified or under which required to be identified in Part 3.15
(a) of the Disclosure Letter, including any Governmental Body has any rights or obligationsContracts entered into after the date hereof that otherwise would be required to be identified in Part 3.15
(a) of the Disclosure Letter but for the fact it was entered into after the date hereof, or (Bis in full force and effect and is valid and enforceable in accordance with its terms. Except as set forth in Part 3.15(b) directly or indirectly benefiting any Governmental Body, of the Disclosure Letter and except for those instruments or documents entered into by any noncompliance the Acquired Companies in the ordinary course of their respective businesses, the absence effect of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property result in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies Damages in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties50,000: (i) none each Seller is, and at all times since January 1, 1995 has been, in compliance with all applicable terms and requirements of the Acquired Companies each Material Applicable Contract to which it is and no other party is in breach or violation of, or default under, any Material Contract, a party; (ii) no event each other Person that has occurred which would result in a breach any obligation or violation of, or a default by the Acquired Companies, under, liability under any Material Applicable Contract (is, and at all times since January 1, 1995 has been, in each case, compliance with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its all applicable terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws requirements of general applicability relating to or affecting creditors’ rights or by general equitable principles.such Material Applicable Contract; and
Appears in 1 contract
Sources: Asset Purchase Agreement (Allied Healthcare Products Inc)
Contracts; No Defaults. (a) Section 4.13(a4.18(a) of the Disclosure Letter lists contains a complete and accurate list of the Company made available to Parent prior to following written contracts and agreements, and any amendments, modifications or supplements thereto as of the date hereof copies of each of the following Contracts (and all amendments“Contracts”), modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):party:
(i) any Contracts with any directorcontract or agreement that involves performance of services or delivery of goods, manager commodities, supplies, products, materials or officer other personal property by one or Affiliate more of the CompanyAcquired Companies of an amount or value in excess of $25,000;
(ii) any Contracts evidencingcontract or agreement that involves performance of services or delivery of goods, governing commodities, supplies, products, materials or relating other personal property to Debt one or any guarantee by any more of the Acquired Company Companies of any other Person an amount or value in excess of $750,000, other than the Loan Documents25,000;
(iii) any Contracts contract or agreement that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000Business;
(iv) except any lease, rental or occupancy agreement, license, installment and conditional sale agreement, or other contract or agreement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property;
(v) any licensing agreement or other contract with respect to the Intellectual Property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property;
(vi) any collective bargaining agreement or other contract to or with any labor union or other employee representative of a group of employees;
(vii) any contract or agreement for the Loan Documentsemployment of any individual on a full-time, the Franchise Agreementspart-time, the Management Agreement Documents consulting or other basis providing annual compensation in excess of $25,000 or providing severance benefits in excess of one month’s base salary;
(viii) any contract or agreement between any Acquired Company and Organization DocumentsSeller or any of its Affiliates (other than such Acquired Company);
(ix) any joint venture agreement, partnership agreement or similar contract or agreement;
(x) any Contracts contract or agreement containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of their Affiliates, an Acquired Company or to limit the freedom of any Acquired Company or any Affiliate of their Affiliates an Acquired Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) contract or agreement providing for commissions or payments to which or by any Governmental Body is a party Person based on sales, purchases or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companiesprofits;
(xii) any Contracts requiring power of attorney that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionis currently effective and outstanding;
(xiii) relating to collective bargaining any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, termination, severance, change of control or other agreement agreement, plan or understanding with a labor union arrangement for the benefit of any Acquired Company’s current or labor organizationformer managers, directors, officers and employees;
(xiv) any Contracts relating contract or agreement under which any Acquired Company has advanced or loaned any amount to the sale any of its managers, directors, officers or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000employees;
(xv) any Contracts relating to the development contract or construction ofagreement (or group of related contracts or agreements) under which any Acquired Company has created, incurred, assumed or guaranteed any indebtedness for borrowed money or other Liability or obligation, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000capitalized lease obligation;
(xvi) any Loan Documentswritten warranty, guaranty, and/or other similar undertaking with respect to contractual performance extended by any Acquired Company;
(xvii) any Contracts for other contract or agreement under which the acquisition consummation of the transactions consummated by this Agreement would constitute a default thereunder (with or dispositionwithout notice or lapse of time, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests both) without the prior consent of another Person for aggregate party thereunder; and
(xviii) any other contract or agreement (or group of related contracts or agreements) the performance of which involves consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract25,000.”
(b) Except as would notset forth on Section 4.18(b) of the Disclosure Letter, individually or in the aggregate, have a Material Adverse Effect on none of the Acquired CompaniesCompanies is a party to, or is otherwise bound by, any oral contract or agreement that (Ai) none has any continuing obligation of such Acquired Company or (ii) is not terminable by such Acquired Company without notice and without penalty. Any oral contract or agreement to which any Acquired Company is a party or is otherwise bound by (whether or not such contract is listed on Section 4.18(b) of the Disclosure Letter) shall be deemed a “Contract” for purposes of Section 4.18, but shall not be required to be listed on Section 4.18(a) of the Disclosure Letter. Seller has delivered or made available to Buyer a correct and complete copy of each written Contract listed in Section 4.18(a) of the Disclosure Letter and a written summary setting forth the terms and conditions of each oral Contract referred to in Section 4.18(b) of the Disclosure Letter. With respect to each such Contract (as to Seller’s representation and warranty only, to Seller’s Knowledge): (i) the Contract is legal, valid, binding, enforceable, and in full force and effect, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors generally and by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); (ii) the Contract will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the transactions contemplated by this Agreement; (iii) no party is in material breach or default, and no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration under the Contract; and (iv) no party has repudiated any provision of the Contract. None of the Acquired Companies has received any written claim notice of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect termination with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesany Contract.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Ambassadors International Inc)
Contracts; No Defaults. (a) Except for Permitted Encumbrances, Section 4.13(a7.13(a) of the Disclosure Letter lists contains a complete and accurate list of, or the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements BarTech Public Filings include as exhibits thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
: (i) each Contract of BarTech and its Subsidiaries that is required to be filed as an exhibit to any Contracts with any director, manager or officer or Affiliate of the Company;
BarTech Public Filings, (ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company other Contract of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company BarTech or any of their Affiliatesits Subsidiaries containing covenants not to compete, employee non-solicitation or no-hire covenants, or to limit otherwise materially limiting the freedom of any Acquired Company or any of their Affiliates BarTech and its Subsidiaries to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(viii) any Contracts that provide an obligation to fund other Contract of BarTech or make any investment in of its Subsidiaries constituting a material employment agreement or a collective bargaining or other agreement with a labor organization or other representative of BarTech's and its Subsidiaries' employees, (whether in the form of a loan, capital contribution or otherwiseiv) any Subsidiary other Contract of BarTech or any of its Subsidiaries with or for the benefit of any Affiliate of the Acquired Companies, or other Person BarTech (other than with or among its Subsidiaries) or, to BarTech's Knowledge, any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with immediate family member of any officer, director, trustee employee or employee;
equityholder of BarTech or any of its Affiliates or any Affiliate thereof and (viiiv) any Contracts (A) other Contract of BarTech or any of its Subsidiaries relating to the acquisitionmaterial indebtedness, issuance, voting, registration, sale financing arrangements or transfer guarantees of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractindebtedness.”
(b) Except as would not, individually or With respect to the Contracts identified in the aggregate, have a Material Adverse Effect on the Acquired Companies, (ASection 7.13(a) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) Disclosure Letter, to the knowledge of the Company PartiesBarTech's Knowledge: (i) none of the Acquired Companies is and no other party each Contract is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) full force and (iii) each Material Contract effect and is valid, binding valid and enforceable in accordance with its terms and is in full force and effect with respect terms, except to the Acquired Companies, and to the other parties thereto, except as extent that its enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratoriumfraudulent transfer, fraudulent transfer and moratorium or other similar laws of general applicability relating to or affecting creditors’ ' rights or generally and 50 by general equitable equity principles, (ii) BarTech has made available to USS/Kobe and RES Holding a copy of each such Contract, (iii) BarTech and its Subsidiaries are in compliance with all material terms and requirements of such Contracts, and (iv) BarTech and its Subsidiaries have not given to or received from any other Person any written notice regarding any actual or alleged material violation or default of any such Contract.
Appears in 1 contract
Sources: Master Restructuring Agreement (Republic Technologies International Inc)
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and contains a listing of all Contracts described in clauses (i) through (xvi) below to which, as of the date of this Agreement, the Company made available to Parent prior to the date hereof copies of each or any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Company’s Subsidiaries is a party or by which any they are bound, other than a Company Benefit Plan (except with respect to clauses (vii) and (viii) below). True, correct and complete copies of their respective properties the Contracts listed on Section 4.12(a) of the Company Disclosure Letter have previously been delivered to or assets are bound (notwithstanding anything hereinmade available to Acquiror or its agents or representatives, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):together with all amendments thereto.
(i) any Contracts Any primary or master supply or master services Contract or similar Contract with any directorof the Top U&G Customers, manager Top C&I Customers and Top Vendors, but excluding any non-disclosure agreements, purchase orders, sales acknowledgements or similar Contracts entered into with such counter-parties in connection with, relating to or resulting from such primary or master supply or master services Contracts;
(ii) Each note, debenture, other evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract for money borrowed by the Company or any of the Company’s Subsidiaries, including any agreement or commitment for future loans, credit or financing and any agreement pursuant to which the Company or any of the Company’s Subsidiaries granted a Lien on its assets, whether tangible or intangible, to secure any Indebtedness, in each case, in excess of $250,000;
(iii) Each Contract for the acquisition of any Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries in the last five (5) years involving payments in excess of $100,000, in each case, other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing or (B) between the Company and its Subsidiaries;
(iv) Each (A) Real Property Lease and (B) lease, rental or occupancy agreement, installment and conditional sale agreement, and other Contract that provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property that involves aggregate payments in excess of $250,000 in any calendar year;
(v) Each Contract involving the formation of a (A) joint venture, (B) partnership, or (C) limited liability company, in each case providing for the sharing of revenues, profits, losses or costs (excluding, in the case of clauses (B) and (C), any Subsidiary of the Company);
(vi) Contracts (other than employment agreements, employee confidentiality and invention assignment agreements, equity or incentive equity documents and Governing Documents) between the Company and its Subsidiaries, on the one hand, and Affiliates of the Company or any of the Company’s Subsidiaries (other than the Company or any of the Company’s Subsidiaries), the officers and managers (or equivalents) of the Company or any of the Company’s Subsidiaries, the members or stockholders of the Company or any of the Company’s Subsidiaries, any employee of the Company or any of the Company’s Subsidiaries or a member of the immediate family of the foregoing Persons, on the other hand (collectively, “Affiliate Agreements”);
(vii) Employment agreements or offer letters (or forms thereof) with each current executive officer (as defined in Rule 3b-7 under the Exchange Act) of the Company or Affiliate its Subsidiaries, and service agreements with each director of the Company;
(iiviii) Contracts with any Contracts evidencing, governing employee or relating to Debt consultant of the Company or any guarantee of the Company’s Subsidiaries that provide for change in control, retention or similar payments or benefits contingent upon, accelerated by any Acquired Company or triggered by the consummation of any other Person in excess of $750,000, other than the Loan Documentstransactions contemplated hereby;
(iiiix) Contracts containing covenants of the Company or any Contracts that reflect transactionsof the Company’s Subsidiaries (A) prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to engage in or compete with any Person in any line of business in any material respect or (B) prohibiting or restricting the Company’s and the Company’s Subsidiaries’ ability to conduct their business with any Person in any geographic area in any material respect;
(x) Any Collective Bargaining Agreement;
(xi) Each Contract (including license agreements, coexistence agreements, settlement agreements, and agreements with applicable covenants not to sue) pursuant to which the Company or any of the Company’s Subsidiaries (i) grants to a third Person any material rights, or materially restricts any third Person, with respect to any Company Owned IP (other than non-exclusive licenses granted in the ordinary course of businessbusiness on the Company’s standard form terms provided to Acquiror for review prior to the date of this Agreement) or (ii) is granted by a third Person any material rights, that involve expendituresor is materially restricted, with respect to Intellectual Property, other than, in cash or any other form respect of considerationthis subclause (ii), in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating Contracts granting nonexclusive rights to the acquisition, issuance, voting, registration, sale use commercially available off-the-shelf software having a replacement cost or transfer annual license fee of any securitiesless than $250,000, (B) providing any Person with any preemptive rightOpen Source Licenses, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts non-disclosure agreements entered into in the ordinary course of business, and (D) Contracts with employees, independent contractors and consultants assigning inventions developed in the provision of services for the Company that are entered into in the ordinary course of business substantially on the Company’s form proprietary information and inventions agreements provided to Acquiror for review prior to the date of this Agreement;
(xii) Each Contract requiring capital expenditures by the Company or potential liability any of the Acquired Companies under Company’s Subsidiaries after the date of this Agreement in an amount in excess of $250,000 in any calendar year;
(xiii) Any Contract that (A) grants to any third Person any “most favored nation rights” or (B) grants to any third Person price guarantees for a period greater than one (1) year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of $250,000 in any calendar year;
(xiv) Contracts granting to any Person (other than the Company or its Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase price adjustment thator acquire equity interests in the Company or any of the Company’s Subsidiaries;
(xv) Contracts, other than any Contracts of the type described in clauses (i) through (xiv) above, which involves payments from or to the Company in excess of $250,000 during the trailing twelve months for the period ending September 30, 2021; and
(xvi) Any outstanding written commitment to enter into any Contract of the type described in clauses (i) through (xv) of this Section 4.12(a).
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, all of the Contracts listed pursuant to Section 4.12(a) in the Company Disclosure Letter are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or the Subsidiary of the Company party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to the Company and its Subsidiaries, taken as a whole, (x) the Company and its Subsidiaries have performed in all respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.12(a), and neither the Company, the Company’s Subsidiaries, nor, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract, (y) during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(a3.15(a) of the Disclosure Letter lists Schedule contains a complete and accurate list, and the Company made available has delivered to Parent prior to the date hereof copies of each true, correct and complete copies, of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):related documents:
(i) any Contracts with any director, manager each Contract involving payments of at least $10,000 that involves performance of services or officer delivery of goods or Affiliate of materials by the Company;
(ii) any Contracts evidencing, governing each Contract involving payments of at least $10,000 that involves performance of services or relating delivery of goods or materials to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan DocumentsCompany;
(iii) each Contract providing for the purchase of all or substantially all of its requirements of a particular product from a supplier;
(iv) each Contract or plan, including, without limitation, any Contracts stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement and the Ancillary Agreements or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(v) each Contract for joint marketing, teaming or development;
(vi) each Contract with any dealer, franchiser, original equipment manufacturer, value-added reseller, or manufacturer's representative;
(vii) each Contract pertaining to the Company's maintenance or support of its products, services or supplies that reflect transactions, other than varies substantially from the Company's standard contract which is attached as Section 3.15(a)(vii);
(viii) each Contract for the sale of its products not made in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000business ;
(ivix) except each Contract with any sales agent or distributor of products of the Company;
(x) each Contract for a license (other than off-the-shelf, fully paid up, shrink wrap software licenses) or franchise (as licensor or licensee or franchisor or franchisee) that varies substantially from the Loan DocumentsCompany's standard contract which is attached as Section 3.15(a)(x);
(xi) each Contract involving any arrangement or obligation with respect to the return of products other than on account of a defect in condition, or failure to conform to the Franchise Agreementsapplicable Contract;
(xii) each Contract with the United States government;
(xiii) each Contract that is material to the assets or business of the Company;
(xiv) each lease, license and other Contract affecting any leasehold or other interest in any real or personal property to which the Management Agreement Documents Company is a party;
(xv) each licensing agreement or other Contract to which the Company is a party with respect to patents, trademarks, copyrights, trade secrets or other intellectual property, including agreements with current or former employees, consultants or contractors regarding the use or disclosure of any intellectual property;
(xvi) each collective bargaining agreement and Organization Documentsother Contract to or with any labor union or other employee representative of a group of employees involving or affecting the Company;
(xvii) each joint venture, partnership and other Contract involving a sharing of profits, losses, costs or liabilities by the Company with any Contracts other Person or requiring the Company to make a capital contribution;
(xviii) each Contract to which the Company is a party containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any of their Affiliates, the employees of the Company or to limit the freedom of any Acquired the Company or any of their Affiliates the employees to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture each employment or consulting agreement between the Company and its employees and consultants (other similar agreement than agreements that are terminable on 30 days notice or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Companyless without penalty);
(xx) each agreement between the Company and an officer or director of the Company or any Contracts other than affiliate of any of the foregoing;
(xxi) each power of attorney granted by the Company that is currently effective and outstanding;
(xxii) each Contract for capital expenditures by the Company in connection with excess of $10,000;
(xxiii) each agreement of the Franchise Agreements, the Management Agreement Documents or the Loan Documents Company under which any money has been or may be borrowed or loaned or any note, bond, factoring agreement, indenture or other evidence of the Acquired Companies indebtedness that has continuing indemnification obligations been issued or assumed (other than Contracts entered into those under which there remain no ongoing obligations of the Company), and each guaranty by the Company of any evidence of indebtedness or other obligation, or of the net worth, of any Person (other than endorsements for the purpose of collection in the ordinary course of business);
(xxiv) each agreement of the Company containing restrictions with respect to the payment of dividends or other distributions in respect of its capital stock;
(xxv) each stock purchase, merger or other agreement pursuant to which the Company acquired any material amount of assets (other than capital expenditures), and all relevant documents and agreements delivered in connection therewith;
(xxvi) each material agreement to which the Company is a party containing a change of control provision applicable to this Agreement, any Ancillary Agreements or any transaction contemplated hereby or thereby;
(xxvii) each other agreement to which the Company is a party having an indefinite term or a fixed term of more than one (1) year (other than those that are terminable at will or upon not more than thirty (30) days' notice by the Company without penalty) or potential liability of requiring payments by the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments Company of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property25,000 per year; and
(xxiiixxviii) any Contract (other than Contracts referenced in clauses (i) through (xxii) each standard form of this Section 4.13(a)) agreement pursuant to which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material ContractCompany provides services or goods to customers.”
(b) Except as would not, individually Each Contract identified or required to be identified in the aggregate, have a Material Adverse Effect on the Acquired Companies, (ASection 3.15(a) none of the Acquired Companies Disclosure Schedule is in full force and effect and is valid and enforceable by the Company and, to the Knowledge of the Company, against the other parties thereto, other than the Company, in accordance with its terms;
(c) The Company is in full compliance in all material respects with all applicable terms and requirements of each Contract under which the Company has received any written claim obligation or liability or by which the Company or any of default the assets or properties owned or used by the Company is bound;
(d) To the Knowledge of the Company, each other Person that has any obligation or liability under any Contract under which the Company has any rights is in full compliance with all applicable terms and requirements of such Material Contract and Contract;
(Be) to To the knowledge Knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation ofCompany, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract and no circumstance exists that (in each case, with or without notice or lapse of time or both) and is likely to result in a violation or breach of any Contract;
(iiif) each Material Except as described in Section 3.15(f) of the Disclosure Schedule, the Company has not received prepayments of any kind on any Contract;
(g) Except as set forth in Section 3.15(g) of the Disclosure Schedule, the Company is not a party to any Contract is validor order for the sale of goods or the performance of services which, binding and enforceable if performed by the Company in accordance with its terms and is terms, could only be performed with a negative gross profit margin or which has no reasonable likelihood of being performed within the time limits provided in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlessuch Contract.
Appears in 1 contract
Contracts; No Defaults. (aA) Section 4.13(aSchedule 3(w) of the Disclosure Letter lists attached hereto contains a complete and accurate list, and the Company has made available to Parent prior to the date hereof copies Purchaser true and complete copies, of:
1. each Applicable Contract (as defined below) that involves performance of each services or delivery of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party goods or by which any materials of their respective properties an amount or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person value in excess of $750,000, other than the Loan Documents25,000;
(iii) any Contracts 2. each Applicable Contract that reflect transactions, other than was not entered into in the ordinary course of business, business or is not cancelable by the Company or a subsidiary of the Company with no penalty upon advance notice of 30 days or less and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, the Company or its subsidiaries in excess of $1,000,0005,000;
(iv) except for 3. each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $5,000 and with terms of less than one year);
4. each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company or any of its subsidiaries with any other person or entity;
5. each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired of the Company and its subsidiaries or any affiliate of their Affiliates, the foregoing or to limit the freedom of any Acquired of the Company and its subsidiaries or any affiliate of their Affiliates the foregoing to engage in any line of business or to compete with any Person person or in any geographic area entity;
6. each employment or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval consulting agreement of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person Company and its subsidiaries (other than any Organizational Documentunwritten at will employment arrangements);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 1 contract
Sources: Securities Purchase Agreement (Tangible Asset Galleries Inc)
Contracts; No Defaults. (a) Section 4.13(a) Except for the contracts, agreements and commitments set forth in Part 3.17 of the Disclosure Letter lists and (the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated"Scheduled Contracts"), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other a party is in breach to any oral or violation ofwritten (i) contract for the employment of any officer, employee, consultant or default under, any Material Contract, independent contractor; (ii) no event has occurred license agreement or distributor, dealer, manufacturer's representative, sales agency, advertising, property management or brokerage contract requiring aggregate payments in future in excess of $50,000 in the aggregate as to all such contracts; (iii) contract with any labor organization or other collective bargaining unit; (iv) contract for the future purchase of materials, supplies, services, merchandise (excluding inventory) or equipment involving payments of more than $50,000 in the aggregate as to all such contracts over its remaining term (including periods covered by any option to renew by either party); (v) contract for the purchase, sale or lease of any real estate; (vi) profit-sharing, bonus, incentive compensation, deferred compensation, stock option, severance pay, stock purchase, employee benefit, insurance, hospitalization, pension, retirement or other similar plan or agreement; (vii) agreement or arrangement for the sale of any of its assets or properties or the grant of any preferential rights to purchase any of its assets, properties or rights, other than in the Ordinary Course of Business involving payments of more than $50,000 in the aggregate as to all such agreements or arrangements; (viii) contract which would result contains any provisions requiring the Acquired Companies to indemnify any other party thereto for an amount that might reasonably exceed $50,000 in a breach the aggregate as to all such contracts; (ix) joint venture agreement or violation of, arrangement or a default by other agreement involving the sharing of profits; (x) outstanding loan to any person or entity or receivable due from any shareholder of the Acquired Companies, underthe Sellers or persons or entities controlling, any Material Contract controlled by or under common control with the Acquired Companies or the Sellers; or (xi) other contract, commitment or agreement involving payments of more than $50,000 in each casethe aggregate as to all such contracts, with commitments or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with agreements which by its terms and does not terminate or is not terminable within 30 days or upon 30 days' (or less) notice. Except as described in Part 3.17 of the Disclosure Letter, each of the Contracts is in full force and effect with respect and constitutes a legal, valid and binding obligation of, and is legally enforceable against, the Acquired Company party thereto. The Acquired Companies have in all material respects performed all the obligations required to be performed by each of them to date under the Contracts. To the Knowledge of the Sellers and the Acquired Companies, and to no party is in default under any of the Contracts. Except as specified in Part 3.17 of the Disclosure Letter, none of the Contracts is a "capitalized" lease or a "financing" lease (as those terms are used in GAAP). Except as specified in Part 3.17 of the Disclosure Letter, none of the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws to any of general applicability relating to the Contracts is an affiliate of the Acquired Companies or affecting creditors’ rights or by general equitable principlesthe Sellers.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 5.12(a) of the Company Disclosure Letter lists contains a true and complete listing of all Contracts (other than purchase orders) (including without limitations agreements for funding with any Governmental Authority) described in the subclauses of this Section 5.12 to which, as of the date of this Agreement, the Company or any of its Subsidiaries is a party (together with all material amendments, waivers or other changes thereto) other than Company Benefit Plans and Standard Employment Agreements and Contracts that may not be disclosed pursuant to applicable Law (collectively, with Prior Government Contracts (as defined below) the “Material Contracts”). True, correct and complete copies of the Material Contracts have been delivered to or made available to Parent prior to the date hereof copies SPAC or its agents or Representatives, except where delivery or other sharing of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company such Material Contract is a party or not permitted by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):applicable Law.
(i) Each Contract that (x) the Company reasonably anticipates will involve aggregate payments or consideration furnished by the Company or by any Contracts with of its Subsidiaries of more than $500,000 in the calendar year ended December 31, 2025 or (y) involved aggregate payments or consideration furnished to the Company or to any directorof its Subsidiaries of more than $500,000, manager or officer or Affiliate of in each case, in the Companycalendar year ended December 31, 2024;
(ii) Each Contract that is a definitive purchase and sale or similar agreement for the acquisition of any Contracts evidencing, governing or relating to Debt Person or any guarantee by any Acquired Company business unit thereof or the disposition of any other Person material assets of the Company or any of its Subsidiaries in the three (3) years prior to the date of this Agreement, in each case, involving payments in excess of $750,000, 500,000 other than Contracts in which the Loan Documentsapplicable acquisition or disposition has been consummated and there are no material obligations ongoing;
(iii) Each Contract with outstanding obligations of the Company or its Subsidiaries that provides for the sale or purchase of personal property, fixed assets or real property and involves aggregate payments in excess of $500,000 in any Contracts that reflect transactionscalendar year, other than sales or purchase agreements in the ordinary course of business and sales of obsolete equipment;
(iv) Each joint venture Contract, legal partnership agreement, limited liability company agreement or similar Contract (other than Contracts between Subsidiaries of the Company) that is material to the business of the Company and its Subsidiaries taken as a whole;
(v) Each Contract expressly prohibiting or restricting in any material respect the ability of the Company or its Subsidiaries to engage in any business, to operate in any geographical area or to compete with any Person (other than Contracts with providers or other entities limiting the Company’s or any of its Subsidiary’s ability to engage providers in the same geographic area, none of which are material to the Company and its Subsidiaries, taken as a whole);
(vi) Each Contract, license or other agreement in or under which the Company or any of its Subsidiaries in-licenses from any Person, or out-licenses to any Person, any item of Intellectual Property or Technology, but excluding (A) non-exclusive licenses granted by the Company or any of its Subsidiaries to customers in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, ; (B) providing Contracts where any Person with license of any preemptive rightIntellectual Property or Technology is non-exclusive and incidental to the subject matter of such agreement, right such as licenses to use feedback and suggestions and licenses authorizing the use of participation, right of maintenance or any similar right with respect to any securities or brand materials for marketing purposes; (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts nondisclosure agreements entered into in the ordinary course of business; (D) Personnel IP Agreements or potential liability agreements with subcontractors under which the Company receives licenses from a subcontractor solely for use in connection with the Company’s engagement as a prime contractor; (E) licenses in respect of the Acquired Companies under Open Source Software; (F) non-exclusive licenses granted to Governmental Authorities prior to September 1, 2023 (“Prior Government Contracts”); and (G) non-exclusive licenses (including click-wrap, shrink-wrap or similar Contracts) in respect of commercially available, unmodified, non-customized, “off-the-shelf software” with an annual aggregate fee of less than $500,000;
(vii) Each Contract that constitutes an option agreement, escrow agreement (including any purchase price adjustment thatsource code escrow Contract), settlement agreement, co-existence agreement, non-assertion or covenant not to sue agreement, in each case, concerning Intellectual Property, other than Prior Government Contracts;
(viii) Each Contract providing for the discovery, creation, development or reduction to practice by a third party of any material Intellectual Property or Technology for or on behalf of the Company or any of its Subsidiaries (other than Personnel IP Agreements);
(ix) Each employee collective bargaining Contract (“Labor Contract”) with a labor union, works council, or similar representative body (each, a “Labor Union”);
(x) Each mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money by or from the Company or any of its Subsidiaries in excess of $500,000;
(xi) Each Contract that is a currency or interest hedging arrangement;
(xii) Each material Contract that provides for any most favored nation provision or equivalent preferential terms, exclusivity or similar obligations to which the Company or any of its Subsidiaries is subject;
(xiii) Each Lease; and
(xiv) Any commitment to enter into agreement of the type described in the subclauses of this Section 5.12(a).
(b) Except for any Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect, as of the date of this Agreement, all of the Contracts listed pursuant to Section 5.12(a) are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or one of its Subsidiaries party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, in each case, subject to the Enforceability Exceptions. As of the date of this Agreement, except as would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, (w) neither the Company, any of its Subsidiaries nor, to the knowledge of the Company, any other party thereto is or is alleged to be in material breach of or material default under any such Contract, (x) neither the Company nor any of its Subsidiaries has received any written claim or notice of material breach of or material default under any such Contract, (y) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iiiz) each Material no party to any such Contract that is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect a customer of or supplier to the Acquired CompaniesCompany or any of its Subsidiaries has, and within the past twelve (12) months, canceled or terminated its business with, or, to the other parties theretoknowledge of the Company, except as enforceability may be limited by applicable bankruptcythreatened in writing to cancel or terminate its business with, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws the Company or any of general applicability relating to or affecting creditors’ rights or by general equitable principlesits Subsidiaries.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 4.12(a) contains a true and complete listing of all Contracts described in clauses (i) through (ix) of this Section 4.12(a) to which, as of the Disclosure Letter lists and date of this Agreement, the Company made available to Parent prior to the date hereof copies or any of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which any of their respective properties or assets are is bound (notwithstanding anything hereintogether with all material amendments, waivers or other changes thereto) other than any purchase orders entered into in the ordinary course of business and any Company Benefit Plans (all such Contracts as described in clauses (i) through (ix), collectively, the “Company Material Contract” shall Contracts”) (for the avoidance of doubt, Schedule 4.12(a) is not include any Contract that (1) will be fully performed and satisfied on required to list all amendments, waivers or prior other changes with respect to the ClosingContracts listed therein). True, correct and complete copies of such Company Material Contracts (2together with all material amendments, waivers or other changes thereto) is a Ground Lease in existence as of the date hereof have been delivered to or (3) is an Organizational Document):made available to SPAC or its agents or Representatives.
(i) Each Contract relating to Indebtedness (including the amount of any Contracts with any director, manager or officer or Affiliate of the Companyundrawn but available commitments thereunder);
(ii) Each Contract that is a purchase and sale or similar agreement for the acquisition of any Contracts evidencing, governing or relating to Debt Person or any guarantee by any Acquired Company business unit thereof or the disposition of any other Person in excess material assets the Company or any of $750,000, other than the Loan Documentsits Subsidiaries;
(iii) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement and each other Contract with outstanding obligations that provides for the ownership of, leasing of, occupancy of, title to, use of, or any Contracts that reflect transactionsleasehold or other interest in any real or personal property, other than sales or purchase agreements in the ordinary course of business, that involve expenditures, in cash or any other form business and sales of consideration, in excess of $1,000,000obsolete equipment;
(iv) except for Each Contract requiring capital expenditures of the Loan Documents, Company or its Subsidiaries after the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that date of this Agreement;
(v) Each Contract prohibiting or restricting in any way purport to restrict material respect the business activity of any Acquired ability the Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates its Subsidiaries to engage in any line of business business, to solicit any potential customer, to operate in any geographical area or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) in any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Propertiesmaterial respect, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating customary restrictions with respect to the formationsale or delivery of products in certain geographical areas and non-solicitation and no-hire provisions, creationin each case, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business;
(vi) Each Contract (excluding (x) non-disclosure agreements entered into with employees and contractors in the ordinary course of business and (y) non-exclusive licenses granted in trademarks that are Owned Intellectual Property that are incidental to marketing, printing or potential liability advertising Contracts) under which the Company or any of its Subsidiaries (A) is a licensee with respect to any item of Intellectual Property that is material to the business of the Acquired Companies Company or any of its Subsidiaries (excluding non-exclusive licenses in respect of commercially available, unmodified, “off-the-shelf software”) and (B) is a licensor or otherwise grants to a third party any rights to use any item of material Owned Intellectual Property (excluding non-exclusive licenses granted by the Company or any of its Subsidiaries in the ordinary course of business and consistent with past practice);
(vii) Each Contract under which the Company or any purchase price adjustment thatof its Subsidiaries has commissioned the development of Intellectual Property by a third party that is material to the business of the Company or any of its Subsidiaries (other than pursuant the Company’s or any of its Subsidiaries’ standard form employee invention assignment or consulting or independent contractor agreements, copies of which have been provided to SPAC);
(viii) Each employment Contract with any individual that provides for the payment or accelerated vesting of any compensation or benefits in connection with the consummation of the Transactions, including any severance, retention, change of control, transaction, or similar payments; and
(ix) Any commitment to enter into agreement of the type described in clauses (i) through (viii) of this Section 4.12(a).
(b) Except for any Contract that has terminated, or will terminate, upon the expiration of the stated term thereof prior to the Closing Date and except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date of this Agreement, each Company Material Contract is (i) in full force and effect and (ii) represents the legal, valid and binding obligations the Company or one of its Subsidiaries that is a party thereto and, to the knowledge the Company, represents the legal, valid and binding obligations of the other parties thereto, in each case, subject to the Enforceability Exceptions. Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, as of the date hereof, (w) neither the Company, any of its Subsidiaries nor, to the knowledge the Company, any other party thereto is or is alleged to be in breach of or default under any Company Material Contract (x) neither the Company nor any of its Subsidiaries has received any written claim or notice of breach of or default under any such Contract that remains unresolved and (y) to the knowledge the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aPart 2.18(a) of the Disclosure Letter lists contains a complete and the Company made available accurate list, and Sellers have delivered to Parent prior to the date hereof copies Buyers true and complete copies, of each of the following all Applicable Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall have not include any Contract that (1) will be been fully performed and satisfied on or prior to the Closingfor which obligations are still outstanding, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) each Applicable Contract for which work is still to be performed or services or goods are still to be provided that involves performance of services or delivery of goods or materials by any Contracts with any director, manager Acquired Company of an amount or officer or Affiliate value in excess of the Company$50,000;
(ii) any Contracts evidencing, governing each Applicable Contract for which work is still to be performed or relating services or goods are still to Debt or any guarantee by any Acquired Company be provided that involves performance of any other Person services from a subcontractor in excess of $750,000, other than the Loan Documents50,000;
(iii) each Applicable Contract that involves capital expenditures of any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, Acquired Company in excess of $1,000,00050,000;
(iv) except for each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $1,000 per month);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees relating to wages, hours, and other conditions of employment;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the any Acquired Company’s business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) each Applicable Contract providing for payments to or by any Contracts relating to any currency hedgingPerson based on sales, purchases, or profits, other than direct payments for goods;
(x) any Contracts containing “standstill” or similar provisionseach power of attorney that is currently effective and outstanding;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents each Applicable Contract entered into by the Acquired Companies other than in the ordinary course Ordinary Course of their respective businesses, the absence of which would not, individually Business that contains or in the aggregate, have a Material Adverse Effect on the provides for an express undertaking by any Acquired CompaniesCompany to be responsible for consequential damages;
(xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Contracts requiring that any Acquired Company other than in the Ordinary Course of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;Business; and
(xiii) relating each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 2.18(a) of the Disclosure Letter sets forth information regarding such Applicable Contracts, including the parties to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any the Applicable Contracts, the date of such Applicable Contracts and the Acquired Company's office where details relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Applicable Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractare located.”
(b) Except as would notset forth in Part 2.18(b) of the Disclosure Letter:
(i) no Seller has or may acquire any rights under, individually and no Seller or in any shareholder of FCC has or may become subject to any obligation or liability under, any Applicable Contract that relates to the aggregatebusiness of, have a Material Adverse Effect on or any of the assets owned, leased or used by, any Acquired Company; and
(ii) to the Knowledge of the Acquired Companies, no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) none engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 2.18(c) of the Disclosure Letter:
(i) each Contract identified or required to be identified in Part 2.18(a) of the Disclosure Letter is in full force and effect; and
(ii) to the Knowledge of the Acquired Companies, no Contract identified or required to be identified in Part 2.18(a) of the Disclosure Letter contains any term or requirement that is not customary in the industries in which the Acquired Companies operate.
(d) Except as set forth in Part 2.18(d) of the Disclosure Letter:
(i) each Acquired Company is in material compliance with all applicable terms and requirements of each Applicable Contract under which such Acquired Company has received or had any written claim obligation or liability or by which such Acquired Company or any of default under any the assets owned, leased or used by such Material Contract and Acquired Company is or was bound;
(Bii) to the knowledge of the Company Parties: (i) none Knowledge of the Acquired Companies is and no Companies, each other party Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is in material compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of the Acquired Companies, no event has occurred or circumstance exists that (with or without notice or lapse of time) is reasonably likely to contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Material Contract, .
(iie) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default by outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed contracts with any Person having the contractual or statutory right to demand or require such renegotiation and, to the Knowledge of each Acquired Company and Seller, no such Person has made written demand for such renegotiation.
(f) To the Knowledge of the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect the Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired CompaniesCompanies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, and or any consideration having been paid or promised, that is or is reasonably likely to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws in violation of general applicability relating to or affecting creditors’ rights or by general equitable principlesany Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 2.12(a) of the Disclosure Letter lists and the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is each a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include ”), including the name of the counterparty to such Contract and the date thereof (and, in the case of any Contract that (1oral or unwritten Contracts, provides a description of the material terms thereof) will be fully performed and satisfied on or prior to the Closing, (2) is organized in a Ground Lease or (3) is an Organizational Document):manner consistent with subsections set forth below:
(i) any Contracts Contract (other than any Contract with a Provider or Enrollee) involving payments by or to Seller of at least (i) two hundred fifty thousand dollars ($250,000) during any directortwelve (12) month period, manager or officer or Affiliate of (ii) two hundred fifty thousand dollars ($250,000) in the Companyaggregate;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan DocumentsContract with a Material Vendor;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000Contract with a Top Provider;
(iv) except any joint venture, partnership or other similar agreement involving co-investment with a third party to which Seller is a party;
(v) any Contract involving the sale of any assets of Seller outside of the Ordinary Course of Business, or the acquisition of any assets of any Person by Seller outside of the Ordinary Course of Business, in any business combination transaction (whether by merger, sale of stock, sale of assets or otherwise) under which obligations of any party thereto remain outstanding;
(vi) any note, indenture, loan agreement, credit agreement, security agreement, financing agreement, or other evidence of Indebtedness, any guarantee made by Seller in favor of any Person guaranteeing obligations of such Person, or any letter of credit issued for the Loan Documentsaccount of Seller;
(vii) any Contract relating to employment or consulting, the Franchise Agreementsincluding all severance agreements, the Management Agreement Documents restrictive covenant agreements, employment agreements and Organization Documentsconsultant agreements and contracts involving leased employees, independent contractors, management services, or support services;
(viii) any Contracts that in Contract with any way purport Governmental Authority;
(ix) any collective bargaining agreement or contract with any labor union;
(x) any lease for or with respect to restrict the business activity real property;
(xi) any IP License;
(xii) any Contract with a Sponsor or any Affiliate of any Acquired Company Sponsor;
(xiii) each third party administrative Contract;
(xiv) any reinsurance, coinsurance or retrocessation Contract or other Contract involving shared risk arrangements;
(xv) any of their Affiliates, Contract with any licensed producer or broker relating to limit the freedom sale of any Acquired Company health plans offered by Seller;
(xvi) any Contract that limits the ability of Seller from engaging or any of their Affiliates to engage competing in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing provides for any indemnification obligations in effect for most favored nation provision or equivalent preferential terms (including any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment provider network agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right), right of participationfirst refusal, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” exclusivity or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts Contract (A) for the acquisition administration or disposition, directly management of pharmacy benefits and (B) with a pharmacy or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;pharmacy company; and
(xviii) any Contracts relating other Contract that is otherwise material to the operations Business. For the avoidance of the Propertiesdoubt, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar no business associate agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not will be considered a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Each Material Contract is valid and (B) binding and in full force and effect. Neither Seller nor, to the knowledge Knowledge of the Company Parties: (i) none of the Acquired Companies is and no Seller, any other party is in breach or violation of, or default under, to any Material Contract, (ii) no event is or since January 1, 2019 has occurred which would result been, in a breach or violation ofdefault in any material respect under any Material Contract, and, since January 1, 2018, Seller has not given to, or a received from, any other party to any Material Contract, any notice or communication (whether written or oral) regarding any actual or alleged breach of or default by the Acquired Companies, under, under any Material Contract (in each caseby Seller, with or without notice any other party to such Material Contract. There are no renegotiations or, to the Knowledge of Seller, outstanding rights to negotiate, any amount to be paid or lapse of time payable to or both) and (iii) each Material by Seller under any Assumed Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect other than with respect to non-material amounts in the Acquired CompaniesOrdinary Course of Business, and no Person has made a written demand for such negotiations. Seller has not released or waived any of its material rights under any Material Contract, which release or waiver remains in effect. True and complete copies of each of the Assumed Contracts have been delivered to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesBuyer.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 5.13(a) contains a listing of all Contracts (other than purchase orders and Company Benefit Plans) described in clauses (i) through (xiv) below to which, as of the Disclosure Letter lists and date of this Agreement, the Company made available to Parent prior to the date hereof copies or one or more of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which any of their respective properties or assets are bound (notwithstanding anything hereinbound. True, “Material Contract” shall not include any Contract that (1correct and complete copies of the Contracts listed on Schedule 5.13(a) will be fully performed and satisfied on have been delivered to or prior made available to the Closing, (2) is a Ground Lease Parent or (3) is an Organizational Document):its agents or representatives.
(i) any Contracts each employee collective bargaining Contract or other Contract with any directorunion representing, manager purporting to represent, or officer or Affiliate seeking to represent, any group of the CompanyCompany employees;
(ii) any Contracts evidencing, governing or relating Contract pursuant to Debt which the Company or any guarantee by any Acquired of its Subsidiaries (A) licenses from a third party Intellectual Property that is material to the business of the Company of any other Person in excess of $750,000and its Subsidiaries, taken as a whole, other than click-wrap, shrink-wrap and off-the-shelf software licenses, and any other software licenses that are commercially available on reasonable terms to the Loan Documentspublic generally with license, maintenance, support and other fees less than $25,000 per year or (B) licenses to a third party to use Owned Intellectual Property or Owned Company Software (other than any licenses granted to customers, suppliers or service providers in the ordinary course of business);
(iii) any Contracts Contract that reflect transactions(A) provides for any invention, creation, conception or other than in development of any Intellectual Property (1) by the ordinary course of business, that involve expenditures, in cash Company or any of its Subsidiaries for any other form Person, (2) by the Company or any of consideration, its Subsidiaries jointly with any other Person or (3) for the Company or any of its Subsidiaries by any other Person (excluding any Invention Assignment Agreements) or (B) provides for the assignment or other transfer of any ownership interest in excess any Intellectual Property (1) to the Company or any of $1,000,000its Subsidiaries by any other Person (excluding any Invention Assignment Agreements) or (2) by the Company or any of its Subsidiaries to any other Person;
(iv) except for any Contract, other than teaming agreements entered into in connection with the Loan Documentspursuit of a specific Contract with a Governmental Authority or subcontract thereto or customary non-disclosure agreements, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that which restricts in any way purport to restrict material respect or contains any material limitations on the business activity ability of any Acquired the Company or any of their Affiliates, or its Subsidiaries to limit the freedom of any Acquired Company or any of their Affiliates to engage compete in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projectsterritory;
(v) any Contracts that provide an obligation to fund Contract under which the Company or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts its Subsidiaries has: (A) relating to the acquisitioncreated, issuanceincurred, votingassumed or guaranteed (or may create, registrationincur, sale assume or transfer of any securities, (Bguarantee) providing any Person with any preemptive right, right of participation, right of maintenance Indebtedness having a principal or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies stated amount in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any 200,000 and excluding guarantees of performance under Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts Governmental Authorities entered into in the ordinary course of business; (B) granted a Lien on its assets, whether tangible or potential liability intangible, to secure any Indebtedness having a principal or stated amount in excess of $200,000; or (C) extended credit to any Person (other than (1) intercompany loans and advances and (2) customer payment terms in the ordinary course of business);
(vi) any (A) principal transaction Contract entered into in connection with a completed acquisition or disposition by the Company or its Subsidiaries since December 31, 2017 of any Person or other business organization, division or business of any Person (including through merger or consolidation or the purchase of a controlling equity interest in or substantially all of the Acquired Companies under assets of such Person or by any other manner), other than Contracts for the purchase or sale of inventory or supplies entered into in the ordinary course of business, and (B) to the extent not contemplated by clause (A), Contract pursuant to which the Company or any of its Subsidiaries has an existing obligation (contingent or otherwise) to pay any amounts in respect of indemnification obligations, purchase price adjustment thatadjustment, any earn-out, backend payment or similar obligation, in connection with any completed acquisition or disposition by the Company or such Subsidiaries;
(vii) any Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $200,000 or, together with all related Contracts, in excess of $500,000, in each case, other than sales or purchases in the ordinary course of business and sales of obsolete equipment;
(viii) any Contract expected to result in revenue or require expenditures in excess of $200,000 in the calendar year ended December 31, 2019 or any subsequent calendar year;
(ix) other than any Contract which has a value less than $200,000, any Contract between the Company or its Subsidiaries, on the one hand, and any Company Stockholder, on the other hand, that will not be terminated at or prior to the Closing;
(x) any Contract with a third party establishing any joint venture, partnership, strategic alliance or other collaboration that is material to the business of the Company and its Subsidiaries taken as a whole;
(xi) any Contract with a Significant Customer or a Significant Supplier;
(xii) any Contract involving any resolution or settlement of any actual or threatened Actions or other disputes which has a value greater than $500,000 or imposes continuing obligations on the Company or its Subsidiaries, including injunctive or other non-monetary relief;
(xiii) any Contract with an executive officer of the Company or its Subsidiaries, or any Contract with any other employee or independent contractor of the Company or its Subsidiaries, in each case, with an annual base salary in excess of $250,000, which provides for change in control, retention or similar payments; and
(xiv) any Contract with a Governmental Authority that involves aggregate payments to the Company or any of its Subsidiaries that are reasonably expected to be in excess of $200,000.
(b) With respect to any Contract of the type described in Section 5.13(a), whether or not set forth on Schedule 5.13(a): (i) such Contracts are in full force and effect and represent the legal, valid and binding obligations of the Company or its Subsidiaries that are party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, and, to the knowledge of the Company, are enforceable by the Company or its Subsidiaries to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law); (ii) none of the Company, its Subsidiaries or, to the knowledge of the Company, any other party thereto is in breach of or default (or would be in breach, violation or default but for the existence of a cure period) under any such Contract; (iii) since December 31, 2018, neither the Company nor its Subsidiaries have received any written or, to the knowledge of the Company, oral claim or notice of material breach of or material default under any such Contract which individually or the aggregate, would be reasonably likely to be material to the Company or its Subsidiaries, taken as a whole; (iv) to the knowledge of the Company, no event has occurred which, individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) ); and (iiiv) each Material since December 31, 2018 through the date hereof, neither the Company nor its Subsidiaries have received written notice from any other party to any such Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect that such party intends to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to terminate or affecting creditors’ rights or by general equitable principlesnot renew any such Contract.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aPart 3.17(a) of the Disclosure Letter lists contains a complete and accurate list, and the Company made available to Parent prior Sellers have delivered to the date hereof copies of each of the following Contracts (Buyer true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any directoreach Applicable Contract, manager if any, that involves performance of services or officer delivery of goods or Affiliate materials by VetMall, LLC or one or more Acquired Companies of the Companyan amount or value in excess of $5,000;
(ii) any Contracts evidencingeach Applicable Contract, governing if any, that involves performance of services or relating delivery of goods or materials to Debt VetMall, LLC or any guarantee by any one or more Acquired Company Companies of any other Person an amount or value in excess of $750,000, other than the Loan Documents5,000;
(iii) any Contracts each Applicable Contract, if any, that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of businessBusiness and that involves expenditures or receipts of VetMall, that involve expenditures, in cash LLC or any other form of consideration, one or more Acquired Companies in excess of $1,000,0005,000;
(iv) except for each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract, if any, affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $5,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract, if any, with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract, if any, to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and other Applicable Contract (however named), if any, involving a sharing of profits, losses, costs, or liabilities by VetMall, LLC or any Acquired Company with any other Person;
(viii) each Applicable Contract, if any, containing covenants that in any way purport to restrict the business activity of VetMall, LLC or any Acquired Company or any Affiliate of their Affiliates, an Acquired Company or to limit the freedom of any Acquired Company or any Affiliate of their Affiliates an Acquired Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) each Applicable Contract, if any, providing for payments to or by any Contracts relating to any currency hedgingPerson based on sales, purchases, or profits, other than direct payments for goods;
(x) any Contracts containing “standstill” or similar provisionseach power of attorney, if any, that is currently effective and outstanding;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligationseach Applicable Contract, or (B) directly or indirectly benefiting any Governmental Bodyif any, except for those instruments or documents entered into by the Acquired Companies other than in the ordinary course Ordinary Course of their respective businesses, the absence of which would not, individually Business that contains or in the aggregate, have a Material Adverse Effect on the provides for an express undertaking by any Acquired CompaniesCompany to be responsible for consequential damages;
(xii) any Contracts requiring that any each Applicable Contract, if any, for capital expenditures in excess of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction$5,000;
(xiii) relating to collective bargaining each written warranty, guaranty, and or other agreement similar undertaking, if any, with respect to contractual performance extended by VetMall, LLC or understanding with a labor union or labor organization;any Acquired Company other than in the Ordinary Course of Business; and
(xiv) any Contracts relating to the sale each amendment, supplement, and modification (whether oral or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property written) in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;foregoing.
(xvia) any Loan Documents;
(xvii) any Contracts for of the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating Disclosure Letter sets forth the parties to the operations Contracts, the amount of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability remaining commitment of the Acquired Companies under any purchase price adjustment thatthe Contracts, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract and the Acquired Companies' office where details relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractare located.”
(b) Except as would notset forth in Part 3.17(b) of the Disclosure Letter or as contemplated by the Contemplated Transactions:
(i) no Seller (and no Related Person of any Seller) has or may acquire any rights under, individually and no Seller has or in may become subject to any obligation or liability under, any Contract that relates to the aggregatebusiness of, have a Material Adverse Effect on or any of the assets owned or used by, any Acquired Company; and
(ii) to the Knowledge of the Sellers and the Acquired Companies, no officer, director, agent, employee, consultant, or contractor of VetMall, LLC or any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) none engage in or continue any conduct, activity, or practice relating to the business of the any Acquired Companies has received any written claim of default under any such Material Contract and Company, or (B) assign to the knowledge any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) each Contract identified or required to be identified in Part 3.17(a) of the Company Parties: (i) none of the Acquired Companies is and no other party Disclosure Letter is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) full force and (iii) each Material Contract effect and is valid, binding valid and enforceable in accordance with its terms and is in full force and effect with respect terms, subject to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer conveyance and other similar laws of general applicability application affecting the rights of creditors and (ii) applicable laws and regulations and principles of equity which may restrict the enforcement of certain remedies or the availability of certain equitable remedies.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since its formation has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound, except where such failure to comply would not have a material adverse effect on it;
(ii) to the Knowledge of the Sellers, each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since its formation has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of the Sellers, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since its formation, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential material violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to VetMall, LLC or any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of the Sellers and the Acquired Companies, no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or affecting creditors’ rights provision of products or services by general equitable principlesVetMall, LLC or the Acquired Companies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Drugmax Com Inc)
Contracts; No Defaults. (a) Section 4.13(aSchedule 4.3(a) of the Disclosure Letter lists contains a complete and the Company made available accurate list, and Seller has delivered to Parent prior Purchaser a true and complete and accurate list, and Seller has delivered to the date hereof copies of each of the following Contracts (Purchaser true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Contract that involves performance of services or officer delivery of goods or Affiliate materials by the Business of the Companyan amount or value in excess of $50,000;
(ii) any Contracts evidencing, governing each Contract that involves performance of services or relating delivery of goods or materials to Debt the Business of an amount or any guarantee by any Acquired Company of any other Person value in excess of $750,000, other than the Loan Documents50,000;
(iii) any Contracts each Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form of consideration, receipts by the Business in excess of $1,000,00050,000;
(iv) except for each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except (A) personal property leases generally known in Seller's industry as subrentals (i.e., leases of equipment and other rental items in the Ordinary Course of Business for purposes of fulfilling Seller's customer contracts) and (B) personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(v) each licensing agreement or other Contract with respect to Patents, Trademarks, Copyrights, or other Intellectual Property Assets, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets;
(vi) each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company Seller or any of their Affiliates, or to limit the freedom of any Acquired Company Seller or any of their Affiliates its assigns to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) each written warranty, guaranty, and or other similar undertaking by Seller with respect to contractual performance extended by the Seller or any Contracts evidencing any employment agreementsAffiliate (each of the agreements referred to in paragraphs (i) through (vii), severanceinclusive, change in control or termination agreements with any officer, director, trustee or employeeare hereinafter referred to as the "Material Contracts");
(viiib) Except as set forth in Schedule 4.3(b):
(i) the Seller is, and at all times since January 1, 1999 has been, in full compliance with all applicable terms and requirements of each Contract under which the Seller or the Business has or had any Contracts (A) relating to obligation or liability or by which the acquisition, issuance, voting, registration, sale Seller or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect toassets owned or used by the Seller is or was bound, or right to repurchase or redeemincluding, any securities;
(ix) any without limitation, the Material Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments violations or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would notdefaults that, individually or in the aggregate, have not had and will not have a Material Adverse Effect material adverse effect on the Business or the Acquired CompaniesAssets;
(xiiii) to the Knowledge of Seller, each other Person that has or had any Contracts requiring that obligation or liability under any Contract under which the Seller or the Business has or had any rights, including, without limitation, any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposalMaterial Contracts, or prior to entering into any discussionsis, agreementand at all times since January 1, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated)1999 has been, in each case, having value full compliance with all applicable terms and requirements of more than $500,000;
(xv) any Contracts relating to the development such Contract; except for violations or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment defaults that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have not had and will not have a Material Adverse Effect material adverse effect on the Acquired Companies, (A) none of Business or the Acquired Companies has received any written claim of default under any such Material Contract and Assets;
(B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation of, or default under, any Material Contract, (iiiii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract circumstance exists that (in each case, with or without notice or lapse of time or both) and (iii) each may contravene, conflict with, or result in a violation or breach of, or give the Seller or, to Seller's Knowledge, other Person party to a Material Contract is validthe right to declare a default or exercise any remedy under, binding or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Material Contract; and
(iv) the Seller and enforceable in accordance with its terms and is in full force and effect with respect Parent have not given to or received from any other Person, at any time since January 1, 1999, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Material Contract.
(c) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Acquired Companies, Seller under any Assigned Contract with any Person and no such Person has made written demand for such renegotiation.
(d) The Assigned Contracts relating to the other parties theretosale, except as enforceability may be limited design, manufacture, or provision of products or services by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability or to the Seller or otherwise relating to the Business have been entered into in the Ordinary Course of Business and have been entered into without the commission, on the part of Seller and Parent, of any act alone or affecting creditors’ rights in concert with any other Person, or any consideration having been paid or promised by general equitable principlesSeller or any of its Affiliate, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Matthews Studio Equipment Group)
Contracts; No Defaults. (a) Section 4.13(aPart 3.17(a) of the Disclosure Letter lists contains a complete and the Company made available accurate list, and Sellers have delivered to Parent prior to the date hereof copies of each of the following Contracts (Buyer true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Applicable Contract that involves performance of services or officer delivery of goods or Affiliate of materials by the Acquired Company;
(ii) any Contracts evidencing, governing each Applicable Contract that involves performance of services or relating delivery of goods or materials to Debt or any guarantee by any the Acquired Company of any other Person in excess of $750,000, other than the Loan DocumentsCompany;
(iii) any Contracts each Applicable Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000Business;
(iv) except for each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property;
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Acquired Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any the Acquired Company or any Affiliate of their Affiliates, the Acquired Company or to limit the freedom of any the Acquired Company or any Affiliate of their Affiliates the Acquired Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) each Applicable Contract providing for payments to or by any Contracts relating to any currency hedgingPerson based on sales, purchases, or profits, other than direct payments for goods;
(x) any Contracts containing “standstill” or similar provisionseach power of attorney that is currently effective and outstanding;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired CompaniesCompany to be responsible for consequential damages;
(xii) any Contracts requiring that any each Applicable Contract for capital expenditures in excess of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transactionTen Thousand United States Dollars ($10,000.00);
(xiii) relating to collective bargaining each written warranty, guaranty, and or other agreement or understanding similar undertaking with a labor union or labor organization;respect to contractual performance extended by the Acquired Company other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, and modification (whether oral or written) in respect of any Contracts of the foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Company under the Contracts, and the Acquired Company's office where details relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractare located.”
(b) Except as would notset forth in Part 3.17(b) of the Disclosure Letter:
(i) No Seller (and no Related Person of a Seller) has or may acquire any rights under, individually and no Seller has or in may become subject to any obligation or liability under, any Contract that relates to the aggregatebusiness of, have a Material Adverse Effect on or any of the assets owned or used by, the Acquired CompaniesCompany; and
(ii) no officer, director, agent, employee, consultant, or contractor of the Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) none engage in or continue any conduct, activity, or practice relating to the business of the Acquired Companies has received any written claim of default under any such Material Contract and Company, or (B) assign to the knowledge Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Company Parties: Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) none The Acquired Company is, and at all times has been, in full compliance with all applicable terms and requirements of each Contract under which the Acquired Company has or had any obligation or liability or by which the Acquired Company or any of the assets owned or used by the Acquired Companies Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which the Acquired Company has or had any rights is, and at all times has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Acquired Company or other party is in Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) the Acquired Company has not given to or received from any other Person, at any time, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach or violation of, or default under, any Material Contract, .
(iie) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default outstanding rights to renegotiate any material amounts paid or payable to the Acquired Company under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired CompaniesCompany has been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, underor any consideration having been paid or promised, that is or would be in violation of any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aPart 3.16(a) of the Disclosure Letter lists contains a complete and accurate list as of the date of this Agreement, and the Company made available Seymour Companies have delivered to Parent prior to the date hereof copies of each of the following Contracts (HPII true and all amendmentscomplete copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) any Contracts with any director, manager each Applicable Contract that involves performance of services or officer delivery of goods or Affiliate materials following the date of this Agreement by the CompanySeymour Companies of an amount or value in excess of $100,000;
(ii) any Contracts evidencing, governing each Applicable Contract that involves performance of services or relating delivery of goods or materials to Debt the Seymour Companies following the date of this Agreement of an amount or any guarantee by any Acquired Company of any other Person value in excess of $750,000, other than the Loan Documents100,000;
(iii) any Contracts each Applicable Contract following the date of this Agreement that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, Business and that involve expenditures, in cash involves expenditures or any other form receipts of consideration, the Seymour Companies in excess of $1,000,00050,000;
(iv) except for each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the Loan Documentsownership of, the Franchise Agreementsleasing of, the Management Agreement Documents and Organization Documentstitle to, use of, or any leasehold or other interest in, any Contracts real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Seymour Companies with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company the Seymour Companies or any Affiliate of their Affiliates, the Seymour Companies or to limit the freedom of any Acquired Company the Seymour Companies or any Affiliate of their Affiliates the Seymour Companies to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) each Applicable Contract providing for payments to or by any Contracts relating to any currency hedgingPerson based on sales, purchases, or profits, other than direct payments for goods;
(x) any Contracts containing “standstill” or similar provisionseach power of attorney that is currently effective and outstanding;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except each Applicable Contract for those instruments or documents entered into by the Acquired Companies capital expenditures in the ordinary course excess of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies$50,000;
(xii) any Contracts requiring that any each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Seymour Companies other than in the Ordinary Course of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;Business; and
(xiii) relating to collective bargaining each amendment, supplement, and modification (whether oral or other agreement or understanding with a labor union or labor organization;
(xivwritten) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would notset forth in Part 3.16(b) of the Disclosure Letter:
(i) no Affiliate (other than Affiliates of the Majority Shareholders) of the Seymour Companies has or may acquire any rights under, individually and no Affiliate (other than Affiliates of the Majority Shareholders) of the Seymour Companies has or in is subject to any obligation or liability under, any Contract that relates to the aggregatebusiness of, have a Material Adverse Effect on or any of the Acquired assets owned or used by, the Seymour Companies; and
(ii) to the Knowledge of the Seymour Companies, no officer, director, agent, employee, consultant, or contractor of the Seymour Companies is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) none engage in or continue any conduct, activity, or practice relating to the business of the Acquired Seymour Companies, or (B) assign to the Seymour Companies or to any other Person any rights to any invention, improvement, or discovery.
(c) Each material Contract identified or required to be identified in Part 3.16(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.16(d) of the Disclosure Letter:
(i) the Seymour Companies are, and at all times have been, in material compliance with all applicable terms and requirements of each material Contract under which the Seymour Companies have any obligation or liability or by which the Seymour Companies or any of the assets owned or used by Seymour Companies are bound;
(ii) to the Knowledge of the Seymour Companies each other Person that has received any written claim of obligation or liability under any material Contract under which the Seymour Companies have any rights is not in default under any such Material Contract and Contract; and
(Biii) within the past two years, the Seymour Companies have not given to nor received from any other Person, at any time any notice or other communication (whether written or, to the knowledge Knowledge of the Company Parties: (iSeymour Companies, oral) none of the Acquired Companies is and no other party is in regarding any actual, alleged, possible, or potential violation or breach or violation of, or default under, any Material material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(a2.14(a) of the Seller Disclosure Letter Schedule lists and the Company made available to Parent prior to the date hereof copies of each of the following Seller Contracts (and all amendmentssuch Seller Contracts, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything hereintogether with the Assumed Seller Contracts, the “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational DocumentSeller Contracts”):
(i) any Contracts joint venture, partnership or other similar agreement involving co-investment with any director, manager or officer or Affiliate of the Companya third party to which Seller is a party;
(ii) any Contracts evidencing, governing contract or relating to Debt or any guarantee by any Acquired Company agreement involving the sale of any other assets of Seller, or the acquisition of any assets of any Person by Seller, in excess any business combination transaction (whether by merger, sale of $750,000stock or units, other than the Loan Documentssale of assets or otherwise);
(iii) any Contracts that reflect transactionsnote, indenture, loan agreement, credit agreement, security agreement, financing agreement, or other than evidence of Indebtedness relating to the borrowing of money by Seller, any guarantee made by Seller in the ordinary course favor of businessany Person guaranteeing obligations of such Person, that involve expenditures, in cash or any other form letter of consideration, in excess credit issued for the account of $1,000,000Seller;
(iv) except any employment or consulting agreement between Seller and any of the employees or consultants of Seller that (A) obligates Seller to make annual cash payments in an amount exceeding $10,000 or make any cash payments to any Person in the event of a termination of such Person’s employment or consulting arrangement with Seller or on account of the transactions contemplated by this Agreement; or (B) contains non-competition provisions for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, benefit of Seller from an employee or an independent consultant;
(v) any Contracts collective bargaining agreement or contract with any labor union;
(vi) any contract or agreement containing covenants that in any way purport to restrict the business activity of any Acquired Company Seller or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates Seller to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;other Seller Contract that is otherwise material to Seller; and
(viii) each amendment, supplement, and modification in respect of any Contracts of the foregoing.
(Ab) relating Seller represents that:
(i) Each Material Seller Contract is valid and binding and in full force and effect;
(ii) Neither Seller nor, to the acquisitionKnowledge of the Seller, issuanceany other party to any Material Seller Contract, votingis or since January 1, registration2010, sale has been, in breach or transfer default under any Material Seller Contract or is aware of any securitiescircumstances of facts that could lead to assertion that Seller is, or has been, in breach or default under any Material Seller Contract; and
(Biii) providing Since January 1, 2010, Seller has not given to, or received from, any Person with other party to any preemptive rightMaterial Seller Contract, right any notice or communication (whether written or oral) regarding any actual or alleged breach of participation, right of maintenance or default under any Material Seller Contract by Seller or any similar right other party to such Material Seller Contract; and
(iv) There are no renegotiations or, to the Knowledge of Seller, outstanding rights to negotiate, any amount to be paid or payable to or by Seller under any Material Seller Contract other than with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all non-material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into amounts in the ordinary course of business, and no Person has made a written demand for such negotiations. Seller has not released or waived any of its rights under any Material Seller Contract.
(c) or potential liability Each Government Contract to which Seller is a party (the “Seller Government Contract”) is identified in Section 2.14(a) of the Acquired Companies under Seller Disclosure Schedule. With respect to each Seller Government Contract or outstanding Proposal: (i) Seller has complied in all material respects with all terms and conditions of such Seller Government Contracts or Proposals; (ii) all representations and certifications made by the Seller with respect to such Seller Government Contracts or Proposals were accurate, current and complete in all material respects as of their effective dates, and Seller has complied with all such representations and certifications in all material respects; (iii) Seller has complied in all material respects with all applicable requirements of Legal Requirement or Orders in relation to such Seller Government Contracts or Proposals; (iv) no Governmental Authority nor any purchase price adjustment thatprime contractor on a Seller Government Contract to which the Seller is a subcontractor has notified the Seller, that the Seller has breached or violated any statute, rule or regulation, certification or other Legal Requirement in each caseconnection with any Seller Government Contract other than any of the foregoing that have been resolved prior to the date hereof; (v) no termination for convenience, termination for default, cure notice or show cause notice has been issued and not resolved or cured; (vi) no cost incurred by the Seller has been disallowed, other than those which have been resolved; and (vii) no money due to the Seller has been withheld or set off and not resolved. No state of facts exists that would reasonably be expected give rise to result any of the consequences, circumstances or events described in future payments of more than $1,000,000;the preceding sentence.
(xxid) any Contract relating Neither Seller nor, to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement DocumentsSeller’s Knowledge, any licenseof the directors or executive officers of Seller is (or within the last three (3) years has been) under administrative, royalty civil or other Contract concerning criminal investigation or indictment or material Intellectual Property; and
(xxiii) any Contract information or audit (other than Contracts referenced in clauses routine audits) with respect to any alleged misstatement or omission arising under or relating to any Government Contract or Proposal. Seller has not made a voluntary disclosure pursuant to the U.S. Department of Defense Fraud Voluntary Disclosure Program (ior comparable disclosure to any foreign Governmental Authority) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each with respect to any alleged misstatement or omission arising under or relating to any Government Contract or Proposal that has led or would be reasonably expected to lead to any of the foregoing is consequences set forth in the sentence immediately above or any other damage, penalty, assessment, recoupment of payment or disallowance of cost. There are no unresolved qui tam actions that have been brought against the Seller under the Civil False Claims Act. There are no disputes involving Seller related to a “Material Government Contract. There are no outstanding claims or requests for equitable adjustment by the Seller relating to a Government Contract. There are no outstanding claims or requests for equitable adjustment submitted by a subcontractor to the Seller under a Government Contract.”
(be) Except as would notNeither the Seller nor, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none Seller, any of the Acquired Companies executive officers or directors of the Seller is (or at any time during the last three (3) years has been) suspended or debarred from doing business with the U.S. Government (or other Governmental Authority) or has been declared non-responsible or ineligible for contracting with the U.S. Government (or other Governmental Authority), and no other party such suspension or debarment has been initiated or, to the Seller’s Knowledge, threatened.
(f) True and complete copies of each of the Material Seller Contracts have been delivered to Buyer, and an accurate description of the oral Material Seller Contracts is in breach or violation ofset forth on the Seller Disclosure Schedule. To the extent applicable, or default under, any the Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default Seller Contracts identified on the Seller Disclosure Schedule are separately identified by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse type of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlescontract.
Appears in 1 contract
Contracts; No Defaults. 1) Schedule 3.17 of the Disclosure Letter contains a complete and accurate list of:
(a) Section 4.13(aeach Applicable Contract that involves performance of services or delivery of goods or materials by the Company of an amount or value in excess of $100,000;
(b) each Applicable Contract that involves performance of services or delivery of goods or materials to the Company of an amount or value in excess of $100,000;
(c) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures by or receipts of the Company in excess of $50,000;
(d) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(e) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(f) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(g) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(h) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Company to be responsible for late or delayed performance penalties, charges or, under any circumstances, consequential damages;
(i) each Applicable Contract for capital expenditures in excess of $100,000; and
(j) each written warranty, guaranty, and/or other similar undertaking and disclaimer with respect to contractual performance extended by the Company.
2) Except as set forth in Schedule 3.17(2) of the Disclosure Letter, each Contract identified or required to be identified in Schedule 3.17(1) of the Disclosure Letter lists is in full force and effect and is valid and enforceable in accordance with its terms.
3) Except as set forth in Schedule 3.17(3) of the Disclosure Letter:
(a) to the Knowledge of the Sellers, the Company made available to Parent prior to is, and at all times since the date hereof copies Unaudited Balance Sheet Date has been, in full compliance with all applicable terms and requirements of each of Contract under which the following Contracts (and all amendments, modifications and supplements thereto) to which Company has or had any Acquired Company is a party obligation or liability or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, the assets owned or to limit used by the freedom of any Acquired Company is or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Personwas bound, except for customary restrictions imposed by localities as a condition where the failure to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment be in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which compliance is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected likely to result in future payments of more than $1,000,000a Company Material Adverse Effect;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in to the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none Knowledge of the Acquired Companies Sellers, the Company has not given to or received from any other Person, at any time since the Unaudited Balance Sheet Date, any written claim of default under notice regarding any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in actual, alleged, possible, or potential violation or breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 3.11 contains a listing of all Contracts described in clauses (i) through (viii) below to which, as of the Disclosure Letter lists and date of this Agreement, the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company or AG LLC is a party or by which any of their respective properties or assets are bound (notwithstanding anything hereineach, a “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document”):
(i) each Contract which is reasonably expected to require aggregate payments by or to the Company or AG LLC of more than $250,000 in any Contracts with any director, manager or officer or Affiliate of one (1) year period after the Companydate hereof;
(ii) each Contract which may not be terminated by the Company or AG LLC within twelve (12) months from the date of this Agreement without the Company or AG LLC being obligated to pay any Contracts evidencingpenalty, governing premium or relating to Debt or any guarantee by any Acquired Company additional payments in amounts greater than $250,000 in respect of any other Person in excess of $750,000, other than the Loan Documentssuch Contact;
(iii) each Contract relating to the acquisition, sale or other disposition of any Contracts that reflect transactionsof the assets of the Company valued in excess of $250,000, other than in the ordinary course of business, that involve expendituresentered into at any time on or after November 11, in cash or any other form of consideration, in excess of $1,000,0002011;
(iv) except for each Contract that imposes a Lien (other than Permitted Liens) on any of the Loan Documents, assets of the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;AG LLC; sf-3640269
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document)each Affiliate Agreement;
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring each Contract that any of the Acquired Companies give any notice or provide any information grants to any Person prior the right to considering or accepting any Acquisition Proposal or similar proposal, or prior occupy (except pursuant to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into reservations made in the ordinary course of business) or potential liability any portion of the Acquired Companies under Owned Real Property, except as addressed in Section 3.17(b);
(vii) each Contract pursuant to which the Company or AG LLC has borrowed any purchase price adjustment thatmoney or incurred any Indebtedness from, or issued any note, bond, debenture or other evidence of Indebtedness to, any Person (other than the Company or AG LLC) in principal amount in excess of $250,000;
(viii) each Contract which (x) provides for the assignment or other transfer to or by the Company or AG LLC from or to any other Person, of any ownership interest in any material Company IP; (y) the Company or AG LLC grants to any Person a license to use any material Company IP (excluding non-exclusive licenses granted in ordinary course of business); and (z) any Person grants to the Company or AG LLC any Intellectual Property License that is material to the conduct of their respective businesses (excluding, in each foregoing case, Non-Negotiated Vendor Contracts);
(ix) each Contract which provides for any, severance, retention, or change in control payments, or fees in connection with a change in control or termination of service in excess of $100,000, payable by the Company or AG LLC to any director, officer, employee or consultant of the Company or AG LLC;
(x) each Contract restricting the conduct or operations of the business of the Company or AG LLC, by limiting the right of the Company or AG LLC to engage in or compete with any Person in any business, market, or geographical area;
(xi) any Contract that relates to a partnership, joint venture, joint marketing, joint development or similar arrangement with any other Person; and
(xii) any Contract related to the sale, lease, or use of gaming equipment which is reasonably expected to require aggregate payments by or to the Company or AG LLC of more than $20,000 in any one (1) year period after the date hereof (excluding purchase orders).
(b) True, correct and complete copies of the Contracts listed on Schedule 3.11 of the date hereof have been delivered to or made available to Acquiror or its agents or representatives. Except as set forth on Schedule 3.11, (i) as of the date of this Agreement, all of the Material Contracts are in full force and effect and represent the legal, valid and binding obligations of the Company or AG LLC, as applicable, and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, (ii) neither the Company, AG LLC, nor, as of the date of this Agreement, to the knowledge of the Company, any other party thereto is in material breach of or material default under any such Contract, (iii) as of the date of this Agreement, neither the Company nor AG LLC has received any written claim or notice of material breach of or material default under any such Contract, and (iv) as of the date of this Agreement, to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of by the Company Parties: (i) none of the Acquired Companies is and no other or AG LLC party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Sources: Merger Agreement (Boyd Gaming Corp)
Contracts; No Defaults. (a) Section 4.13(a3.19(a) of the Disclosure Letter lists Schedule contains a true, correct and complete list of, and the Company has delivered or made available to Parent prior Buyer true, correct and complete copies of, any Applicable Contract:
(i) that involves performance of services or delivery of goods, materials or products to the date hereof copies of each or by any of the following Contracts Acquired Companies of value in excess of $500,000;
(and all amendmentsii) that evidences Indebtedness;
(iii) that evidences a capital lease;
(iv) under which any Acquired Company has, modifications and supplements theretodirectly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person;
(v) pursuant to which any Acquired Company has committed to provide or license any Company Intellectual Property other than in the Ordinary Course of Business;
(vi) under which (A) any Person has directly or indirectly guaranteed Indebtedness or Liabilities of any Acquired Company or (B) any Acquired Company has directly or indirectly guaranteed Indebtedness or Liabilities of any Person (in each case other than endorsements for the purpose of collection in the Ordinary Course of Business);
(vii) pursuant to which any Acquired Company is leasing, renting, licensing or acquiring personal property, including any lease or rental agreement, occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having a party value per item or aggregate payments of less than $100,000 and with terms of less than one year and so-called “shrink-wrap” license agreements relating to computer software licensed by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate Acquired Companies in the Ordinary Course of the CompanyBusiness);
(iiviii) that is a collectively bargained agreement or similar Contract with any Contracts evidencing, governing labor union or other employee representative of a group of employees;
(ix) creating or relating to Debt any joint venture, partnership or any guarantee other arrangement involving a sharing of profits, losses, costs, or liabilities by any of the Acquired Company of Companies with any other Person in excess of $750,000, other than the Loan DocumentsPerson;
(iiix) under which there is a continuing obligation of any Contracts that reflect transactions, other than in of the ordinary course of business, that involve expenditures, in cash Acquired Companies to pay any “earn out” payment or deferred or contingent purchase price or any other form similar payment respecting the purchase of consideration, in excess of $1,000,000any business or assets;
(ivxi) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, each Contract with any Contracts that in foreign Governmental Body;
(xii) each Contract with any way purport to restrict Securityholder or any Affiliate or family member of any Securityholder;
(xiii) imposing any restrictions on the business activity of any of the Acquired Company or Companies or, to the Knowledge of the Company, any Affiliate of any of their Affiliates, the Acquired Companies or to limit the freedom of any of the Acquired Company or Companies or, to the Knowledge of the Company, any Affiliate of any of their Affiliates the Acquired Companies to engage in any line of business or to compete with any Person Person;
(xiv) each broker, franchise, marketing, advertising, management, service, distributor, dealer, manufacturer’s representative, sales agency, consulting or other similar type of Contract;
(xv) providing for payments to or by any of the Acquired Companies based on sales, purchases, or profits, other than direct payments for goods;
(xvi) creating any power of attorney to which any of the Acquired Companies is a party that is currently effective and outstanding;
(xvii) that contains or provides for an express undertaking by any of the Acquired Companies to be responsible for consequential damages;
(xviii) relating to capital expenditures and involving future payments relating to such underlying capital assets in excess of $100,000;
(xix) that contains a written warranty, guaranty or other similar undertaking with respect to contractual performance extended by any geographic area or of the Acquired Companies other than in the Ordinary Course of Business;
(xx) that would reasonably be expected to hire or retain have a Company Material Adverse Effect if breached by any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(vxxi) each Contract regulating or controlling the voting or disposition of any Contracts that provide an obligation of the Equity Securities of any of the Acquired Companies or giving any Person the right to fund appoint directors or make any investment in (whether in control the form of a loan, capital contribution or otherwise) any Subsidiary management of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than each Applicable Contract that was not entered into the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual PropertyOrdinary Course of Business; and
(xxiii) each amendment, supplement, and modification (whether oral or written) in respect of any Contract (other than of the foregoing. The Applicable Contracts referenced in the respective categories described in clauses (i) through (xxiixxiii) above, the Real Property Leases, the Active Government Contracts, the Applicable Contracts set forth on Section 3.24(c) of this Section 4.13(a)) the Disclosure Schedule and all Applicable Contracts to which by its terms calls for payments in excess of $1,000,000. Each any Acquired Company is a party or otherwise bound pursuant to which any of the foregoing is a Acquired Companies provide or license any Company Intellectual Property are collectively referred to as “Material ContractContracts.”
(b) Except as would not, individually or in To the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none Knowledge of the Acquired Companies has received Company, no officer, director, employee, consultant or contractor of any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is bound by any Contract that purports to limit the ability of such officer, employee, director, consultant or contractor to: (A) engage in breach or violation ofcontinue any conduct, activity, or default under, any Material Contract, practice relating to the business of the Acquired Companies; or (iiB) no event has occurred which would result in a breach or violation of, or a default by assign to the Acquired Companies, underas applicable, or to any Material Contract other Person any rights to any invention, improvement, or discovery.
(in each casec) Except as set forth on Section 3.19(c) of the Disclosure Schedule, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to and is valid and enforceable by the Acquired Companies, and if applicable, subject to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, fraudulent transfer moratorium and other similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(d) Except as set forth on Section 3.19(d) of the Disclosure Schedule:
(i) each of the Acquired Companies is, and at all times has been, in compliance in all material respects with all applicable terms and requirements of each Material Contract under which it has any Liability or by general equitable principleswhich it or any of the assets or properties owned or used by it is bound;
(ii) to the Knowledge of the Company, each other Person that has any Liability under any Material Contract under which any of the Acquired Companies has any rights is, and at all times has been, in compliance in all material respects with all applicable terms and requirements of such Material Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a material violation or breach of, or give any of the Acquired Companies or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Material Contract; and
(iv) none of the Acquired Companies has given to or received from any other Person any written notice regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Material Contract.
(e) Except as set forth on Section 3.19(e) of the Disclosure Schedule, none of the Acquired Companies nor any Person has demanded that any material amounts paid or payable to any of the Acquired Companies under current or completed Material Contracts be renegotiated.
(f) The Material Contracts relating to the sale, design or provision of products or services by any of the Acquired Companies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act by any of the Acquired Companies (or on behalf of any of the Acquired Companies) alone, by, or in concert with any other Person, or any consideration having been paid or promised to or by any of the Acquired Companies (or on behalf of any of the Acquired Companies), that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Sources: Merger Agreement
Contracts; No Defaults. (a) Section 4.13(a3.14(a) of the Disclosure Letter lists contains a complete and the Company made available to Parent prior to the date hereof copies of each accurate list of the following Contracts, excluding, however, any such Contracts (and all amendmentsthat are immediately terminable, modifications and supplements thereto) to which or terminable upon not more than 60 days notice, by the applicable DFA Company without incurring any Acquired Company is a party monetary or by which nonmonetary liability, obligation or penalty of any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):nature:
(i) each Contract that involves performance of services or delivery of goods or materials by or to any Contracts with any director, manager DFA Company of an amount or officer or Affiliate of the Companyvalue that could exceed $1,000,000 per year;
(ii) any Contracts evidencing, governing each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or relating to Debt or any guarantee by any Acquired Company receipts of any other Person in excess of DFA Company that could exceed $750,000, other than the Loan Documents100,000 or that is otherwise material to any DFA Company;
(iii) any Contracts that reflect transactionseach lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other than in Contract affecting the ordinary course of businessownership of, that involve expendituresleasing of, in cash title to, use of, or any leasehold or other form interest in, any real or personal property used by any DFA Company (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of consideration, in excess of less than $1,000,000500,000);
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts each Contract containing covenants that in any way purport to materially restrict the business activity of any Acquired DFA Company or any of their Affiliates, or to limit the freedom of any Acquired DFA Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) each employment, consulting, noncompetition, separation, collective bargaining, union or labor Contract applicable to any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document)DFA Company;
(vi) each Contract with or for the benefit of any Contracts providing for DFA Parent or Affiliate of any indemnification obligations in effect for DFA Company or, to DFA's Knowledge, any current or former officer, director, trustee or employeeimmediate family member of an Affiliate of a DFA Company;
(vii) each Contract under which any Contracts evidencing DFA Company is obligated to indemnify, or entitled to indemnification from, any employment agreementsthird party, severance, change in control excluding any agreement that requires indemnification solely for a breach of such agreement and excluding any indemnification obligation or termination agreements with any officer, director, trustee or employeeright that could not reasonably be expected to involve more than $100,000;
(viii) each Contract for capital expenditures by any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer DFA Company in excess of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;$500,000; and
(ix) any Contracts relating to any currency hedging;
each amendment, supplement, and modification (xwhether oral or written) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course respect of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would not, individually or With respect to the Contracts identified in the aggregate, have a Material Adverse Effect on the Acquired Companies, (ASection 3.14(a) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) to the knowledge of the Company Parties: Disclosure Letter:
(i) none of the Acquired Companies is and no other party each Contract is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) full force and (iii) each Material Contract effect and is valid, binding valid and enforceable in accordance with its terms and is in full force and effect with respect except to the Acquired Companies, and to the other parties thereto, except as extent that its enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratoriumfraudulent transfer, fraudulent transfer and moratorium or other similar laws of general applicability relating to or affecting creditors’ ' rights or generally and by general equitable equity principles;
(ii) the DFA Companies have made available to Suiza Foods or Suiza's Advisors a copy of each such Contract that is in writing and a written summary accurately describing the material provisions of each such Contract that is not in writing;
(iii) each DFA Company is in compliance with all material terms and requirements of such Contracts; and
(iv) no DFA Company has given to or received from any other Person any notice regarding any actual or alleged violation of any such Contract.
(c) the DFA Companies have made available to Suiza Foods or Suiza's Advisors a complete list of each customer of any DFA Company that has accounted for more than $5,000,000 in gross sales of such DFA Company for the year ended December 31, 1998 and for more than $2,500,000 for the six months ended June 30, 1999 (the "DFA MATERIAL CUSTOMERS") and indicating the amount of gross sales attributable to each DFA Material Customer during such time periods. None of the DFA Material Customers has notified any DFA Company or any DFA Parent of any intention to, or to DFA's Knowledge, otherwise threatened to, terminate or materially alter its relationship with any DFA Company, and there has been no material dispute with a DFA Material Customer since December 31, 1998.
Appears in 1 contract
Sources: Contribution Agreement, Plan of Merger and Purchase Agreement (Suiza Foods Corp)
Contracts; No Defaults. (a) Section 4.13(aPart 2.17(a) of the Company Disclosure Letter lists and Schedule lists, and, except to the extent filed in full without redaction as an exhibit to a Filed Company SEC Report, the Company has made available (or, in the case of clause (iv) below, delivered) to Parent prior copies of, each Acquired Corporation Contract (including any amendment to the date hereof copies of each any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Documentforegoing):
(i) any Contracts with any director, manager required to be filed pursuant to paragraphs (b)(9) or officer or Affiliate (b)(10) of Item 601 of Regulation S-K of the CompanySEC;
(ii) with any director or officer of the Company (other than any Plans applicable generally to employees, copies of which were made available to Parent, or Contracts executed pursuant to, and in accordance with, such Plans), or with any affiliate of the Company and required to be disclosed pursuant to Item 404 of Regulation S-K of the SEC ;
(iii) evidencing, governing or relating to Debt indebtedness incurred by any Acquired Corporation for borrowed money or any guarantee by any Acquired Company Corporation of indebtedness of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000Person;
(iv) except any Contract with any Material Customer or any New Material Customer or with any other Person which constituted one of the top ten customers of the Acquired Corporations, measured by revenue, for the Loan Documentssix months ended June 30, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts 2003;
(v) that in any material way purport purports to restrict the business activity of any Acquired Company Corporation or any of their Affiliates, affiliates or to limit the freedom of any Acquired Company Corporation or any of their Affiliates affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Documentsuch limit in the scope of any license granted to an Acquired Corporation for any Proprietary Asset or any non-compete, non-solicitation or similar restriction applicable to any director, officer or employee of an Acquired Corporation, in his or her individual capacity);
(vi) any Contracts providing for indemnification of any indemnification obligations in effect for any current or former officer, director, trustee employee or employeeagent (but, as to agents, excluding customary commercial indemnifications such as those contained in credit agreements with institutional lenders);
(vii) any except for Contracts evidencing any employment agreementsCompany Options, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities Acquired Corporation securities, or (C) providing any of the Acquired Companies Corporations with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(viii) any warranty of the type referred to in Section 2.18, except for Contracts substantially identical to the standard forms previously delivered by the Company to Parent or as set forth in a Contract referred to in clause (iv), above;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Acquired Corporation and any Governmental Body is a party or under which constituting any subcontract or other Contract between any Acquired Corporation and any contractor or subcontractor to any Governmental Body has any rights and relating to a Contract between such contractor or obligations, or (B) directly or indirectly benefiting any subcontractor and such Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xiixi) any Contracts requiring that any of the Acquired Companies Corporations give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;; or
(xiiixii) relating to collective bargaining contemplating or involving the payment or delivery of cash or other agreement consideration to any supplier of materials or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure components used by any of Acquired Corporation in the Acquired Companies manufacturing process in an amount or having a value in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for 1,000,000 during the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating twelve month periods prior to and following the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) date of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000Agreement. Each of the foregoing is a “Material Contract.”
(b) Each Material Contract is valid and in full force and effect, and is enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception.
(c) Except as set forth in Part 2.17(c) of the Company Disclosure Schedule: (i) none of the Acquired Corporations has violated or breached, or committed any default under, any Material Contract, except for violations, breaches and defaults that have not had and would not, individually or in the aggregate, not reasonably be likely to have a Material Adverse Effect on the Acquired CompaniesCorporations; and, (A) none to the knowledge of the Company, no other Person has violated or breached, or committed any default under, any Material Contract, except for violations, breaches and defaults that have not had and would not reasonably be likely to have a Material Adverse Effect on the Acquired Companies has received any written claim of default under any such Material Contract and Corporations; (Bii) to the knowledge of the Company Parties: Company, no event has occurred, and no circumstance or condition exists, that (iwith or without notice or lapse of time) will or would reasonably be likely to, (A) result in a violation or breach of any of the provisions of any Material Contract, (B) give any Person the right to declare a default or exercise any remedy under any Material Contract, (C) give any Person the right to receive or require a rebate, chargeback, penalty or change in delivery schedule under any Material Contract, (D) give any Person the right to accelerate the maturity or performance of any Material Contract, or (E) give any Person the right to cancel, terminate or modify any Material Contract, except in each such case for defaults, acceleration rights, termination rights and other rights that have not had and would not reasonably be likely to have a Material Adverse Effect on the Acquired Corporations; and (iii) none of the Acquired Companies is and no Corporations has received any written notice or, to the knowledge of the Company, other party is in communication asserting any actual or alleged violation or breach or violation of, or default under, any Material Contract, (ii) no event has occurred which except in each such case for defaults, acceleration rights, termination rights and other rights that have not had and would result in not reasonably be likely to have a breach or violation of, or a default by Material Adverse Effect on the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesCorporations.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 3.17(a) of the Disclosure Letter lists contains a complete and the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):accurate list of: ----------------
(i) any Contracts with any director, manager each Applicable Contract that involves performance of services or officer delivery of goods or Affiliate of materials by the Company;
(ii) any Contracts evidencing, governing each Applicable Contract that involves performance of services or relating delivery of goods or materials to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan DocumentsCompany;
(iii) any Contracts each Applicable Contract that reflect transactions, other than was not entered into in the ordinary course Ordinary Course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000Business;
(iv) except each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property;
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets but excluding standard nondisclosure agreements and licenses of commercially available software;
(vi) each agreement between the Shareholder Trust or the Company, and any Shareholder or any Related Person;
(vii) each profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the Loan Documentsbenefit of its current or former directors, officers, and employees of the Franchise AgreementsCompany;
(viii) each agreement for the employment of any individual on a full-time, part-time, consulting, or other basis or providing severance benefits;
(ix) each agreement under which the Management Agreement Documents Company has advanced or loaned any amount to any of its directors, officers, and Organization Documentsemployees;
(x) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(xi) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any Contracts other Person;
(xii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company the Company, the Shareholder Trust, or any of their Affiliates, Shareholder or to limit the freedom of any Acquired Company the Company, the Shareholder Trust, or any of their Affiliates Shareholder to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating each Applicable Contract providing for payments to collective bargaining or by any Person based on sales, purchases, or profits, other agreement or understanding than direct payments for goods and other than commission arrangements with a labor union or labor organizationsales employees of the Company entered into in the Ordinary Course of Business;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect each power of future or existing transactions (including transactions attorney that have not been consummated), in each case, having value of more than $500,000is currently effective and outstanding;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000each Applicable Contract for capital expenditures;
(xvi) any Loan Documentseach Applicable Contract with respect to Indebtedness;
(xvii) any Contracts for each agreement under which the acquisition consequences of a default or dispositiontermination could have a material adverse effect on the business, directly financial condition, operations, results of operations, or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary future prospects of the Company;
(xxxviii) any Contracts each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any Ordinary Course of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual PropertyBusiness; and
(xxiiixix) each amendment, supplement, and modification (whether oral or written) in respect of any Contract of the foregoing Contracts, identified or required to be identified (other than Contracts referenced in clauses (i) through - (xxiixviii) of this Section 4.13(aare collectively, the "Material Contracts")) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would notNo Shareholder (and no Related Person of any Shareholder), individually nor the Shareholder Trust, nor the Holding Entity, has or in may acquire any rights under, or has or may become subject to any obligation or liability under, any Applicable Contract that relates to the aggregateBusiness of, have a Material Adverse Effect on the Acquired Companies, (A) none or any of the Acquired Companies has received any written claim of default under any such Assets owned or used by, the Company.
(c) Each Material Contract is in full force and effect and is valid and enforceable in accordance with its terms.
(Bd) to The Company is, and at all times since the knowledge date of the Year-End Balance Sheet, has been, in compliance with all applicable terms and requirements of each Material Contract under which the Company Parties: has or had any obligation or liability. No event has occurred or circumstance exists that (iwith or without notice or lapse of time) none may contravene, conflict with, or result in a violation or breach of, or give the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Material Contract. The Company has not given to or received from any other Person, at any time since the date of the Acquired Companies is and no Year-End Balance Sheet, any notice or other party is in communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach or violation of, or default under, any Material Contract, .
(iie) There are no event has occurred which would result in a breach or violation renegotiations of, attempts to renegotiate, or a default by the Acquired Companies, under, outstanding rights to renegotiate any Material Contract (in each case, with material amounts paid or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect payable to the Acquired Companies, Company under current or completed Material Contracts with any Person and to the other parties theretoKnowledge of the Company and ▇▇▇▇▇▇▇, except as enforceability may be limited by applicable bankruptcyno such Person has made written demand for such renegotiation.
(f) Schedule 3.17(f) sets forth a complete and accurate list of those ---------------- Persons with which the Company is negotiating a potential Contract, insolvencyfrom whom the Company has received a request for proposal for products or services, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating or to whom the Company has submitted a request for proposal for products or affecting creditors’ rights or by general equitable principlesservices.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(a4.12(a) of the Company Disclosure Letter lists and contains a listing of all Contracts described in clauses (i) through (xv) below to which, as of the date of this Agreement, the Company made available to Parent prior to the date hereof copies of each or any of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company Company’s Subsidiaries is a party or by which any they are bound, other than a Company Benefit Plan. True, correct and complete copies of their respective properties the Contracts listed on Section 4.12(a) of the Company Disclosure Letter have previously been delivered to or assets are bound (notwithstanding anything hereinmade available to Acquiror or its agents or representatives, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):together with all amendments thereto.
(i) any Contracts Any Contract with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person Top Vendors (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officerpurchase orders, directorinvoices, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer statements of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” work and non-disclosure or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts agreements entered into in the ordinary course of businessbusiness consistent with past practice that do not contain any material terms relating to the Contract underlying the applicable Top Vendor’s relationship with the Company or any of its Subsidiaries);
(ii) or potential liability Any Contract with any of the Acquired Companies under Top Customers (as defined below) (other than purchase orders, invoices, statements of work and non-disclosure or similar agreements entered into in the ordinary course of business consistent with past practice that do not contain any purchase price adjustment thatmaterial terms relating to the Contract underlying the applicable Top Customer’s relationship with the Company or any of its Subsidiaries);
(iii) Each note, debenture, other evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract for money borrowed by the Company or any of the Company’s Subsidiaries, including any agreement or commitment for future loans, credit or financing, in each case, in excess of $100,000;
(iv) Each Contract for the acquisition of any Person or any business unit thereof or the disposition of any material assets of the Company or any of its Subsidiaries in the last five (5) years, in each case, involving payments in excess of $100,000 other than Contracts (A) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing, or (B) between the Company and its wholly owned Subsidiaries;
(v) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract that provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property that involves aggregate payments in excess of $100,000 in any calendar year;
(vi) Each Contract involving the formation of a (A) joint venture, (B) partnership, or (C) limited liability company (excluding, in the case of clauses (B) and (C), any wholly owned Subsidiary of the Company);
(vii) Contracts (other than employment agreements, employee confidentiality and invention assignment agreements, equity or incentive equity documents and Governing Documents) between the Company and its Subsidiaries, on the one hand, and Affiliates of the Company or any of the Company’s Subsidiaries (other than the Company or any of the Company’s Subsidiaries), the officers and managers (or equivalents) of the Company or any of the Company’s Subsidiaries, the members or stockholders of the Company or any of the Company’s Subsidiaries, any employee of the Company or any of the Company’s Subsidiaries or a member of the immediate family of the foregoing Persons, on the other hand (collectively, “Affiliate Agreements”);
(viii) Employment Contracts with each current executive, officer, director or management-level employee of the Company or its Subsidiaries;
(ix) Contracts with any employee, advisor, independent contractor, or consultant of the Company or any of the Company’s Subsidiaries or with any other Person that provide for change in control, severance, transaction bonus, retention, or similar payments or benefits contingent upon, accelerated by, or triggered by the consummation of the transactions contemplated hereby;
(x) Contracts containing covenants of the Company or any of the Company’s Subsidiaries (A) prohibiting or limiting the right of the Company or any of the Company’s Subsidiaries to engage in or compete with any Person in any line of business in any material respect or (B) prohibiting or restricting the Company’s and the Company’s Subsidiaries’ ability to conduct their business with any Person in any geographic area in any material respect;
(xi) Any collective bargaining or similar labor-related agreement or Contract between the Company or any of the Company’s Subsidiaries, on one hand, and any labor union, works council, or other body representing employees of the Company or any of the Company’s Subsidiaries, on the other hand;
(xii) Each Contract (including license agreements, coexistence agreements, and agreements with covenants not to sue, but not including non-disclosure agreements, contractor services agreements, consulting services agreements, incidental trademark licenses incident to marketing, printing or advertising Contracts) pursuant to which the Company or any of the Company’s Subsidiaries (i) grants to a third Person the right to use material Intellectual Property of the Company and its Subsidiaries or (ii) is granted by a third Person the right to use Intellectual Property that is material to the business of the Company and its Subsidiaries (other than Contracts granting nonexclusive rights to use commercially available off-the-shelf software and Open Source Licenses);
(xiii) Each Contract requiring capital expenditures by the Company or any of the Company’s Subsidiaries after the date of this Agreement in an amount in excess of $100,000 in any calendar year;
(xiv) Any Contract that (A) grants to any third Person any “most favored nation rights” or (B) grants to any third Person price guarantees for a period greater than one (1) year from the date of this Agreement and requires aggregate future payments to the Company and its Subsidiaries in excess of $100,000 in any calendar year;
(xv) Contracts granting to any Person (other than the Company or its Subsidiaries) a right of first refusal, first offer or similar preferential right to purchase or acquire equity interests in the Company or any of the Company’s Subsidiaries;
(xvi) Contracts with respect to any bonuses, fees or other amounts payable upon the consummation of the transactions contemplated hereby; and
(xvii) Any outstanding written commitment to enter into any Contract of the type described in subsections (i) through (xiv) of this Section 4.12(a).
(b) Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, all of the Contracts listed pursuant to Section 4.12(a) in the Company Disclosure Letter are (i) in full force and effect and (ii) represent the legal, valid and binding obligations of the Company or the Subsidiary of the Company party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not be material to the business of the Company and its Subsidiaries, taken as a whole, (x) the Company and its Subsidiaries have performed in all material respects all respective obligations required to be performed by them to date under such Contracts listed pursuant to Section 4.12(a) and neither the Company, the Company’s Subsidiaries, nor, to the knowledge of the Company, any other party thereto is in breach of or default under any such Contract, (y) during the last twelve (12) months, neither the Company nor any of its Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or, to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no Company, any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principles).
Appears in 1 contract
Sources: Merger Agreement (Welsbach Technology Metals Acquisition Corp.)
Contracts; No Defaults. (a) Section 4.13(a3.19(a) of the Company Disclosure Letter lists Schedule contains a complete and accurate list, and the Company has made available to the Parent prior to the date hereof copies of each of the following Contracts (true, complete and all amendmentscorrect copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):of:
(i) each Applicable Contract pursuant to which the Company or any Contracts with any director, manager or officer or Affiliate of its Subsidiaries invoiced the Company;contracting party for service revenue in excess of $250,000 in calendar year 2011.
(ii) any Contracts evidencing, governing or relating each Applicable Contract pursuant to Debt which the Company or any guarantee by any Acquired Company of any other Person its Subsidiaries paid or accrued an amount or value in excess of $750,000, other than the Loan Documents250,000 in calendar year 2011;
(iii) a list of all obligations and liabilities of the Company or any Contracts that reflect transactionsof its Subsidiaries in excess of $250,000 pursuant to uncompleted orders for the purchase by the Company or any of its Subsidiaries for materials, supplies, equipment and services for the requirements of their respective businesses;
(iv) each Applicable Contract relating to borrowed money or constituting a capital lease;
(v) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with terms of less than one year and Desktop Software licensed by the Company or any of its Subsidiaries in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000business consistent with past practice);
(ivvi) each licensing agreement or other Applicable Contract (except for customer and vendor contracts entered into in the Loan Documentsordinary course of business consistent with past practice, complete copies of which have been made available to the Franchise AgreementsParent) with respect to patents, trademarks, service marks, copyrights, or other Intellectual Property (other than Desktop Software) that is used in the Management Agreement Documents operation of the Company or any of its Subsidiaries;
(vii) each joint venture, partnership, and Organization Documentsother Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company or any Contracts of its Subsidiaries with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict restricts the business activity of any Acquired the Company or any of their Affiliatesits Subsidiaries or, to the Knowledge of the Company, any officer, director or to limit employee of the freedom of any Acquired Company or any of their Affiliates its Subsidiaries or that restricts the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) each Applicable Contract providing for payments to or by the Company or any Contracts relating to any currency hedgingof its Subsidiaries based on sales, purchases, or profits, other than direct payments for goods or services;
(x) each power of attorney to which the Company or any Contracts containing “standstill” or similar provisionsof its Subsidiaries is a party that is currently effective and outstanding;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except each Applicable Contract for those instruments or documents entered into capital expenditures by the Acquired Companies Company or any of its Subsidiaries in excess of $50,000 not otherwise reflected in the Interim Financial Statements;
(xii) each Contract regulating or controlling the voting or disposition of the securities of the Company or any Subsidiary thereof giving any Person the right to appoint directors or control the management of the Company or any of its Subsidiaries;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company or any of its Subsidiaries other than in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding business consistent with a labor union or labor organization;past practice; and
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions each other Applicable Contract that have was not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment thatbusiness consistent with past practice since March 31, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract2011.”
(b) Except as would notTo the Knowledge of the Company, individually no officer, director, employee, consultant or in contractor of the aggregateCompany or any of its Subsidiaries is bound by any Contract that limits the ability of such officer, have a Material Adverse Effect on the Acquired Companiesemployee, director, consultant or contractor to: (A) none engage in or continue any conduct, activity, or practice relating to the business of the Acquired Companies has received Company or any written claim of default under any such Material Contract and its Subsidiaries; or (B) assign to the knowledge Company or any of its Subsidiaries or to any other Person any rights to any invention, improvement, or discovery that is invented, developed, and/or discovered by such individual with the scope of the services that such individual provides to the Company and its Subsidiaries that relates to the business or operations of the Company Parties: or any of its Subsidiaries.
(ic) none To the Knowledge of the Acquired Companies is and no other party is Company, each Contract identified or required to be identified in breach or violation of, or default under, any Material Contract, (iiSection 3.19(a) no event has occurred which would result in a breach or violation of, or a default by of the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and Company Disclosure Schedule is in full force and effect with respect and is a valid and binding obligation of the Company or its Subsidiaries, as applicable, subject to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, fraudulent transfer moratorium and other similar laws of general applicability relating to or affecting creditors’ rights or by and to general equitable equity principles.
(d) Except as set forth in Section 3.19(d) of the Company Disclosure Schedule:
(i) each of the Company and its Subsidiaries is in material compliance with all terms and requirements of each Applicable Contract identified in or required to be identified in Section 3.19(a) of the Company Disclosure Schedule;
(ii) to the Knowledge of the Company, each other Person that has any obligation or liability under any Contract identified in or required to be identified in Section 3.19(a) of the Company Disclosure Schedule under which the Company or any of its Subsidiaries has any rights is in material compliance with all terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) could reasonably be expected to contravene, conflict with, or result in a violation or breach of, or give the Company, any of its Subsidiaries or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract identified or required to be identified in Section 3.19(a) of the Company Disclosure Schedule; and
(iv) neither the Company nor any of its Subsidiaries has given to or received from any other Person any written notice, or to the Knowledge of the Company, verbal notice, or other communication regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract identified or required to be identified in Section 3.19(a) of the Company Disclosure Schedule.
(e) Neither the Company, any of its Subsidiaries nor any Person has demanded that any material amounts paid or payable to the Company or any of its Subsidiaries be renegotiated under the Applicable Contracts identified in or required to be identified in Section 3.19(a).
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 2.20(a) of the Disclosure Letter lists contains a list, and the Company made available Seller has delivered to Parent prior to the date hereof copies of each of the following Contracts (and all amendmentsBuyer copies, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
of: (i) any Contracts with any director, manager each Applicable Contract that involves performance of services or officer delivery of goods or Affiliate of materials by the Company;
Company to the Major Customers; (ii) any Contracts evidencing, governing each Applicable Contract that involves performance of services or relating delivery of goods or materials to Debt the Company by the Major Suppliers; (iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or any guarantee by any Acquired receipts of the Company of any other Person in excess of $750,00025,000; (iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year); (v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property (other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash licenses to use “shrink-wrap” or “off-the-shelf” software or any other form software which is generally commercially available), including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of considerationany of the Intellectual Property Assets; (vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees of the Company; (vii) each joint venture, in excess partnership, and other Applicable Contract (however named) involving a sharing of $1,000,000;
profits, losses, costs, or liabilities by the Company with any other Person; (ivviii) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Related Person of their Affiliates, the Company or to limit the freedom of any Acquired the Company or any Related Person of their Affiliates the Company to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
; (ix) each Applicable Contract providing for payments to or by any Contracts relating to any currency hedging;
Person based on sales, purchases, or profits, other than direct payments for goods; (x) any Contracts containing “standstill” or similar provisions;
each power of attorney that is currently effective and outstanding; (xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
Company to be responsible for consequential damages; (xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts Applicable Contract for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
25,000; (xixxiii) any partnershipeach written warranty, limited liability company agreementguaranty, joint venture and or other similar agreement or arrangement relating undertaking with respect to contractual performance extended by the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts Company other than in connection with the Franchise AgreementsOrdinary Course of Business; and (xiv) each amendment, the Management Agreement Documents supplement, and modification (whether oral or the Loan Documents under which written) in respect of any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contractforegoing.”
(b) Except as would notset forth on Schedule 2.20(b), individually to Seller’s and the Company’s Knowledge, no officer, director, agent, employee, consultant, or in contractor of the aggregateCompany is bound by any Contract that purports to limit the ability of such officer, have a Material Adverse Effect on the Acquired Companiesdirector, agent, employee, consultant, or contractor to (A) none of engage in or continue any conduct, activity, or practice relating to the Acquired Companies has received any written claim of default under any such Material Contract and Business, or (B) assign to the knowledge of the Company Parties: any rights to any invention, improvement, or discovery.
(c) Except as set forth on Schedule 2.20(c), each Contract identified or required to be identified on Schedule 2.20(a) is in full force and effect and is valid and enforceable in accordance with its terms (except as such enforceability may be limited by (i) none bankruptcy, insolvency, moratorium, reorganization and other similar Legal Requirements affecting creditors’ rights generally and (ii) the general principles of equity, regardless of whether asserted in a Proceeding in equity or at law).
(d) Except as set forth on Schedule 2.20(d): (i) the Acquired Companies is Company is, and at all times since January 1, 2003 has been, in compliance in all material respects with all applicable terms and requirements of each Contract identified or required to be identified on Schedule 2.20(a); (ii) to the Knowledge of Seller and the Company, each other Person that has or had any Liability under each Contract identified or required to be identified on Schedule 2.20(a) is, and at all times since January 1, 2003 has been, in compliance in all material respects with all applicable terms and requirements of such Contract; (iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company or, to the Knowledge of Seller and the Company, any other party is in Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Contract identified or required to be identified on Schedule 2.20(a); and (iv) the Company has not given to or received from any other Person, at any time since January 1, 2003, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach Contract identified or violation of, or a default by the Acquired Companies, under, any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect required to the Acquired Companies, and to the other parties theretobe identified on Schedule 2.20(a), except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principleswhere any such failure would not have a Material Adverse Effect.
Appears in 1 contract
Contracts; No Defaults. (aA) Section 4.13(a) 3.1.15 of the Disclosure Letter lists sets forth a list of the following Applicable Contracts (collectively, the "MATERIAL APPLICABLE CONTRACTS"), true and the Company complete copies of which have been made available to Parent prior Purchaser:
(I) each Applicable Contract relating to the date hereof copies Company's acquisition of BorderComm, Inc., a Texas corporation, and Hold Billing Services, Ltd., a Texas limited partnership;
(II) each Applicable Contract defining the rights of holders of long-term debt of the following Contracts Company and each Subsidiary;
(and all amendments, modifications and supplements theretoIII) each Applicable Contract to which any Acquired director or officer of the Company and each Subsidiary, or any Affiliate of any such director or officer, are parties other than Contracts involving only the purchase or sale of current assets having a determinable market price, at such price;
(IV) each Applicable Contract upon which the business of the Company and its Subsidiaries, taken as a whole, is substantially dependent, such as continuing Contracts to sell the major part of the Company's or any Subsidiary's products or services or to purchase the major part of the Company's or any Subsidiary's requirements of goods, services or raw materials;
(V) each Applicable Contract relating to the management of the Company, or any compensatory plan, Contract or arrangement, including, but not limited to, plans relating to options, warrants or rights, pension, retirement or deferred compensation or bonus, incentive or profit sharing, (or if not set forth in any formal document, a party or by written description thereof), in which any director or officer of their respective properties the Company or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):Subsidiary participates;
(iVI) any Contracts each collective-bargaining agreement and other Applicable Contract to or with any directorlabor union or other employee representative of a group of employees;
(VII) each joint venture, manager partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or officer or Affiliate liabilities by any of the Companies with any other Person;
(VIII) Each Warrant of the Company;
(iiIX) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan DocumentsEach Applicable Contract that contains an ▇▇▇▇▇ Registration Right;
(iiiX) any Contracts that reflect transactions, each other than Applicable Contract not made in the ordinary course of businessbusiness which is material to the Company and its Subsidiaries, that involve expenditurestaken as a whole, and is to be performed in cash whole or any other form of consideration, in excess of $1,000,000;part after the Closing; and
(ivXI) except for the Loan Documentseach amendment, the Franchise Agreementssupplement, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in modification (whether oral or written) in the form of a loan, capital contribution or otherwise) any Subsidiary respect of any of the Acquired Companiesforegoing.
(B) Except as set forth in Section 3.1.15(b) of the ------------------ Disclosure Letter, each Material Applicable Contract has been fully performed or other Person is in full force and effect and is valid and enforceable in accordance with its terms.
(other than C) Except as set forth in Section 3.1.15(c) of the ----------------- Disclosure Letter:
(I) each of the Companies is, and at all times since January 1, 1996, has been, in full compliance with all applicable terms and requirements of each Material Applicable Contract under which each of such Companies has or had any Organizational Document)obligation or liability or by which each of such Companies or any of the assets owned or used by each of such Companies is or was bound;
(viII) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary Knowledge of the Company;
(xx) , each other Person that has or had any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents obligation or the Loan Documents liability under any Material Applicable Contract under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under had any purchase price adjustment thatrights is, and at all times since January 1, 1996, has been, in each case, would reasonably be expected to result in future payments full compliance with all applicable terms and requirements of more than $1,000,000such Material Applicable Contract;
(xxiIII) no event has occurred or circumstance exists that (with or without notice or lapse of time) may result in a violation or breach of, or give any Contract relating of the Companies or, to the settlement Knowledge of the Company, other Person the right to declare a default or proposed settlement of exercise any Legal Proceedingremedy under, which involves or to accelerate the issuance of equity securities maturity or the payment of an amountperformance of, in any such caseor to cancel, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documentsterminate, or modify, any license, royalty or other Contract concerning material Intellectual PropertyMaterial Applicable Contract; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (AIV) none of the Acquired Companies has given to or received from any written claim of default under other Person, at any such Material Contract and time since January 1, 1996, any notice or other communication (Bwhether oral or written) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in regarding any actual, alleged, possible, or potential violation or breach or violation of, or default under, any Material Applicable Contract, .
(iiD) no event has occurred which would result The Material Applicable Contracts relating to the sale or provision of products or services by the Companies have been entered into in a breach the ordinary course of business and have been entered into without the commission of any act alone or violation ofin concert with any other Person, or a default by the Acquired Companiesany consideration having been paid or promised, under, that is or would be in violation of any Material Contract (in each case, with or without notice or lapse of time or both) and (iii) each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesLaw.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 4.11(a) contains a listing of all Contracts (other than purchase orders) described in clauses (i) through (xi) below to which, as of the Disclosure Letter lists and date of this Agreement, the Company made available to Parent prior to the date hereof copies or one or more of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company its Subsidiaries is a party or by which any of their respective properties or assets are bound (notwithstanding anything hereinbound. True, “Material Contract” shall not include any Contract that (1correct and complete copies of the Contracts listed on Schedule 4.11(a) will be fully performed and satisfied on have been provided to or prior made available to the Closing, (2) is a Ground Lease Acquiror or (3) is an Organizational Document):its agents or representatives.
(i) any Contracts Contract with any director, manager an employee or officer or Affiliate independent contractor of the CompanyCompany or its Subsidiaries who resides primarily in the United States which, upon the consummation of the transactions contemplated by this Agreement, will (either alone or upon the occurrence of any additional acts or events) result in any material payment or benefits (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any rights to any payment or benefits, from the Company or its Subsidiaries;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreementseach employment, severance, retention, change in control or termination agreements with any officer, director, trustee or employee;
other Contract (viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts excluding customary form offer letters entered into in the ordinary course of business) with any employee or potential liability other individual service provider of the Acquired Companies Company or its Subsidiaries that provides for annual base cash salary in excess of $250,000;
(iii) each collective bargaining agreement;
(iv) any Contract pursuant to which the Company or its Subsidiaries licenses from a third party Intellectual Property that is material to the business of the Company and its Subsidiaries, taken as a whole, other than (A) click-wrap, shrink-wrap and off-the-shelf software licenses and (B) any other software licenses that are commercially available on reasonable terms to the public generally with license, maintenance, support and other fees less than $100,000 per year;
(v) any Contract which restricts in any material respect or contains any material limitations on the ability of the Company or its Subsidiaries to compete in any line of business or in any geographic territory;
(vi) any Contract under any purchase price adjustment thatwhich the Company or its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness, in each case, in an amount in excess of $2,500,000 of committed credit, (B) granted a Lien on its assets, whether tangible or intangible, to secure any Indebtedness, or (C) extended credit to any Person (other than (1) intercompany loans and advances and (2) customer payment terms in the ordinary course of business), in each case, in an amount in excess of $2,500,000 of committed credit;
(vii) other than any employment agreement set forth on Schedule 4.12(a), any Contract between the Company or its Subsidiaries, on the one hand, and NESCO Owner or its Affiliates, on the other hand;
(viii) each Contract entered into in connection with a completed material acquisition by the Company or its Subsidiaries since January 1, 2016 of any Person or other business organization, division or business of any Person (including through merger or consolidation or the purchase of a controlling equity interest in or substantially all of the assets of such Person or by any other manner);
(ix) any Contract with outstanding obligations for the sale or purchase of personal property, fixed assets or real estate having a value individually, with respect to all sales or purchases thereunder, in excess of $500,000 or, together with all related Contracts, in excess of $1,000,000, in each case, other than sales or purchases in the ordinary course of business consistent with past practices and sales of obsolete equipment;
(x) any Contract not made in the ordinary course of business and not disclosed pursuant to any other clause under this Section 4.11(a) and expected to result in revenue or require expenditures in excess of $1,000,000 in any calendar year or which resulted in revenue or expenditures during the fiscal year ended December 31, 2018, in excess of $1,000,000 and
(xi) any Contract establishing any joint venture, partnership, strategic alliance or other collaboration that is material to the business of the Company and its Subsidiaries taken as a whole.
(b) Except for any Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, with respect to any Contract of the type described in Section 4.11(a), whether or not set forth on Schedule 4.11(a), (i) such Contracts are in full force and effect and represent the legal, valid and binding obligations of the Company or its Subsidiaries party thereto and, to the knowledge of the Company, represent the legal, valid and binding obligations of the other parties thereto, and, to the knowledge of the Company, are enforceable by the Company or its Subsidiaries to the extent a party thereto in accordance with their terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law), (ii) none of the Company, its Subsidiaries or, to the knowledge of the Company, any other party thereto is in material breach of or material default (or would be in material breach, violation or default but for the existence of a cure period) under any such Contract, (iii) during the last 12 months, neither the Company nor its Subsidiaries has received any written, or to the knowledge of the Company, oral claim or notice of material breach of or material default under any such Contract, (iv) to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in future payments a material breach of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced in clauses (i) through (xxii) of this Section 4.13(a)) which by its terms calls for payments in excess of $1,000,000. Each of the foregoing is a “Material Contract.”
(b) Except as would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies, (A) none of the Acquired Companies has received any written claim of default under any such Material Contract and (B) by the Company or its Subsidiaries or to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no any other party is in breach or violation of, or default under, any Material Contract, (ii) no event has occurred which would result in a breach or violation of, or a default by the Acquired Companies, under, any Material Contract thereto (in each case, with or without notice or lapse of time or both) ), and (iiiv) each Material during the last 12 months, neither the Company nor its Subsidiaries has received written notice from any other party to any such Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect that such party intends to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to terminate or affecting creditors’ rights or by general equitable principlesnot renew any such Contract.
Appears in 1 contract
Contracts; No Defaults. (a) Section 4.13(aSchedule 4.12(a) of the Disclosure Letter lists sets forth a true, correct and complete list of, and the Company has made available to the Parent prior to the date hereof (including written summaries of oral Contracts), true, correct and complete copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to, or right to repurchase or redeem, any securities;
(ix) any Contracts relating to any currency hedging;
(x) any Contracts containing “standstill” or similar provisions;
(xi) any Contracts (A) to which any Governmental Body is a party or under which any Governmental Body has any rights or obligations, or (B) directly or indirectly benefiting any Governmental Body, except for those instruments or documents entered into by the Acquired Companies in the ordinary course of their respective businesses, the absence of which would not, individually or in the aggregate, have a Material Adverse Effect on the Acquired Companies;
(xii) any Contracts requiring that any of the Acquired Companies give any notice or provide any information to any Person prior to considering or accepting any Acquisition Proposal or similar proposal, or prior to entering into any discussions, agreement, arrangement or understanding relating to any Acquisition Transaction or similar transaction;
(xiii) relating to collective bargaining or other agreement or understanding with a labor union or labor organization;
(xiv) any Contracts relating to the sale or exchange of, or option to sell or exchange, any real property, or to the purchase or exchange of, or option to purchase or exchange, any real property in respect of future or existing transactions (including transactions that have not been consummated), in each case, having value of more than $500,000;
(xv) any Contracts relating to the development or construction of, or additions or expansions to, any real property that would involve the expenditure by any of the Acquired Companies in excess of $1,000,000;
(xvi) any Loan Documents;
(xvii) any Contracts for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $1,000,000;
(xviii) any Contracts relating to the operations of the Properties, other than the Franchise Agreements, to all material advertising and marketing agreements, and credit card agreements, that involve annual expenditures in excess of $500,000 per Property location;
(xix) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly owned Subsidiary of the Company;
(xx) any Contracts other than in connection with the Franchise Agreements, the Management Agreement Documents or the Loan Documents under which any of the Acquired Companies has continuing indemnification obligations (other than Contracts entered into in the ordinary course of business) or potential liability of the Acquired Companies under any purchase price adjustment that, in each case, would reasonably be expected to result in future payments of more than $1,000,000;
(xxi) any Contract relating to the settlement or proposed settlement of any Legal Proceeding, which involves the issuance of equity securities or the payment of an amount, in any such case, having a value of more than $1,000,000;
(xxii) other than the Franchise Agreements and Management Agreement Documents, any license, royalty or other Contract concerning material Intellectual Property; and
(xxiii) any Contract (other than Contracts referenced described in clauses (i) through (xxii) below to which the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries, or any of their properties or assets are bound or affected (each contract required to be set forth on Schedule 4.12(a), a “Company Material Contract”).
(i) Each Contract (other than (x) purchase orders with suppliers or customers entered into in the ordinary course of business and (y) Contracts of the types (without giving effect to dollar thresholds) described in other clauses of this Section 4.13(a4.12(a)) which that the Company reasonably anticipates will involve aggregate annual payments or consideration furnished by or to the Company and its terms calls Subsidiaries of more than $250,000 annually;
(ii) Each mortgage, note, debenture, other evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other contract for money borrowed by the Company or any of its Subsidiaries or security agreement or other Contract or instrument that grant any Lien on any material asset of the Company or any of its Subsidiaries;
(iii) Each Contract (A) for the acquisition of any Person or any business division thereof or the disposition of any material assets of the Company or any of its Subsidiaries (other than in the ordinary course of business), in each case, involving payments in excess of $1,000,000. 100,000, other than Contracts in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing and (B) for the acquisition of any property or Person or any business division thereof with amounts owing as deferred purchase price, including all seller notes and “earn-out” payments;
(iv) Each Lease;
(v) Each lease or sublease of, or Contract that otherwise permits a Person to lease or use, any personal property (other than leases or subleases for personal property and conditional sales agreements with annual required payments of less than $20,000);
(vi) each joint venture Contract, partnership Contract, limited liability company Contract, strategic alliance Contract or other similar Contract with a third party involving any sharing of profits, losses, costs or liabilities pursuant to which the Company or any of its Subsidiaries has any ownership interest in any other Person (in each case, other than with respect to wholly owned Subsidiaries of the foregoing Company);
(vii) Each Contract requiring capital expenditures after the date of this Agreement in an annual amount in excess of $100,000;
(viii) Each Contract pursuant to which the Company or any of its Subsidiaries licenses or otherwise grants a right to any Person to (A) manufacture or reproduce any products, services or technology of the Company or any its Subsidiaries or (B) sell or distribute any products, services or technology of the Company or any of its Subsidiaries;
(ix) Each Contract containing covenants expressly limiting the freedom of the Company or any of its Subsidiaries to compete with any Person in a product line or line of business or to operate in any geographic area;
(x) Each Contract granting to any person (other than the Company) an option or a first-refusal, first-offer or similar preferential right to purchase or acquire any material assets of the Company or any of its Subsidiaries;
(xi) Each Contract granting any exclusivity, “most favored nations”, “take or pay” or similar rights;
(xii) Each Contract that involves payments based, in whole or in part, on profits, revenues, fee income or other financial performance measures of the Company or any of its Subsidiaries;
(xiii) Each Contract set forth on Schedule 4.21(j);
(xiv) Each Contract that provides for a loan or advance of any amount to any director or officer of the Company or any of its Subsidiaries, other than (A) advances for travel, relocation and other appropriate business expenses in the ordinary course of business or (B) other customary employee benefits made generally available to all employees;
(xv) Each Contract with any supplier (A) that is a “Material sole source supplier to the Company and its Subsidiaries or (B) from which the Company and its Subsidiaries source substantially all of their supply of any material product or service, except where the Company and its Subsidiaries would likely be able to replace such source of supply with a substitute supply at substantially the same volume, on substantially comparable terms and without material delay;
(xvi) Each employment, severance, retention, or independent contractor Contract with any employee or independent contractor pursuant to which such employee or independent contractor is eligible to receive an annual base salary in excess of $100,000;
(xvii) Each Contract concerning the manufacture of products for or on behalf of any other Person, or pursuant to which any other Person manufactures products for or on behalf of the Company or any of its Subsidiaries, including any private label manufacturing and/or supply Contract;
(xviii) Each collective bargaining agreement, works council agreement or other similar Contract with any labor union or employee representatives;
(xix) Each Contract relating to any hedge, swap, collar, forward, future, warrant, option or other derivative transaction;
(xx) Each Contract under which any of the benefits thereunder, to any Person party thereto, shall be increased, or the vesting of benefits of which shall be accelerated, by the consummation of any transaction contemplated hereby or the value of any of the benefits of which shall be calculated on the basis of any of the transactions contemplated hereby;
(xxi) Each settlement or coexistence agreement with respect to any pending or threatened Action (A) entered into within twelve (12) months prior to the date of this Agreement, other than settlement agreements for cash only (which has been paid) that does not exceed $25,000 as to such settlement or (B) with respect to which unsatisfied amounts remain outstanding; and
(xxii) Each Contract for a charitable or political contribution.”
(b) Except as would not, individually or in the aggregate, aggregate reasonably be expected have a Material Adverse Effect Effect, and except as set forth on Schedule 4.12(b), with respect to each Company Material Contract (i) each is in full force and effect, subject to the Acquired CompaniesRemedies Exception, (Aii) none each represents valid and binding obligations of the Acquired Companies Company or the applicable Subsidiaries party thereto and, to the knowledge of the Company, represent the valid and binding obligations of the other parties thereto, (iii) no party to any such Contract has made a claim of force majeure, (iv) neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any other party thereto is in material breach of or material default under any such Contract, (v) neither the Company nor any of its Subsidiaries has received any written claim or written notice of material breach of or material default under any such Material Contract which remains unresolved, and (Bvi) to the knowledge of the Company Parties: (i) none of the Acquired Companies is and no other party is in breach or violation ofCompany, or default under, any Material Contract, (ii) no event has occurred which which, individually or together with other events, would reasonably be expected to result in a material breach or violation of, of or a material default by the Acquired Companies, under, under any Material such Contract (in each case, with or without notice or lapse of time or both) and by the Company or its applicable Subsidiaries or any other party thereto.
(iiic) each Material Neither the Company nor any of its Subsidiaries has any Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect with respect to the Acquired Companies, and to the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws of general applicability relating to or affecting creditors’ rights or by general equitable principlesany Governmental Authority.
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