Contracts; No Defaults. (a) Part 3.20(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of: (i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule; (ii) to the extent not listed on Part 3.20 (a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars; (iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) 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 personal 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, hours and other conditions of employment; (vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person; (vii) each Seller Contract containing covenants that in any way purport to restrict Business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person; (viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods; (ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding; (x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages; (xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars; (xii) each Seller Contract not denominated in U.S. dollars; (xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller 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. (b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets. (c) Except as set forth in Part 3.20(c): (i) each 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, 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, Unique Fabrications, 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 the Knowledge of Seller, no 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
Appears in 1 contract
Sources: Asset Purchase Agreement (Champion Enterprises Inc)
Contracts; No Defaults. (a) Part 3.20(a5.19(a) contains an accurate and complete list, and Seller Buyer has delivered to Buyer (or attached to the Disclosure Schedule as required herein) Seller accurate and complete copies, ofof the following Contracts, which are referred to herein as “Material Buyer Contracts”:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Buyer Contract that involves performance of services or delivery of goods or materials by or to Seller Buyer of an amount or value in excess of twenty-five thousand One Hundred Thousand Dollars ($25,000100,000);
(ii) dollarseach Buyer Contract that involves performance of services or delivery of goods or materials to Buyer of an amount or value in excess of One Hundred Thousand Dollars ($100,000);
(iii) each Seller Buyer Contract that was not entered into in the its Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications Buyer in excess of ten One Hundred Thousand Dollars ($10,000) dollars100,000);
(iv) each Seller Buyer 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 twenty-five thousand One Hundred Thousand Dollars ($25,000100,000) dollars and with a term of less than one year);
(v) each Seller Buyer Contract 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 Buyer Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller Buyer with any other Person;
(vii) each Seller Buyer Contract containing covenants that in any way purport to restrict Business Buyer’s business activity or limit the freedom of Seller or Unique Fabrications Buyer to engage in any line of business or to compete with any Person;
(viii) each Seller Buyer Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications Buyer that is currently effective and outstanding;
(x) each Seller Buyer Contract entered into other than in the its Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications Buyer to be responsible for consequential damages;
(xi) each Seller Buyer Contract for capital expenditures in excess of twenty thousand One Hundred Thousand Dollars ($20,000) dollars100,000);
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller Buyer other than in the its Ordinary Course of Business; and
(xivxiii) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. Part 5.19(a) sets forth the parties to each Material Buyer Contract, the effective date of each Material Buyer Contract, the term of each Material Buyer Contract, the goods or services to which each Material Buyer Contract relates and the amount of the remaining commitment of Buyer under each Material Buyer Contract.
(b) Except as set forth in Part 3.20(b5.19(b), no shareholder stockholder of Seller or member of Unique Fabrications Buyer has or may acquire any rights under, and no shareholder stockholder of Seller or member of Unique Fabrications Buyer has or may become subject to any obligation or liability under, any Contract that relates to the Business business of Buyer or any of the Assetsits assets.
(c) Except as set forth in Part 3.20(c5.19(c):
(i) each Seller Material Buyer Contract identified or required to be identified in Part 3.20
5.19(a) has not been orally modified in any material respect (aother than as described in Part 5.19(c)) 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 except, as to any party other than such Seller, as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and the Backlog List is a complete other laws of general application affecting enforcement of creditors’ rights generally and 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 limited by laws relating to the Closing Date;availability of specific performance, injunctive relief or other equitable remedies; and
(ii) each Seller such Material Buyer Contract identified or required to be identified in Part 3.20(a5.19(a) and which is being assigned to or assumed by Buyer is assignable by Seller to Buyer without does not require the receipt of consent of any other Person; and
(iii) to Person as a result of 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 Assetscontemplated Transactions.
(d) Except as set forth in Part 3.20(d5.19(d):
(i) Seller Buyer is, and at all times since December 31January 1, 19992003, has been, in compliance with all applicable material terms and requirements of each Seller Contract which is being assumed by Material Buyer except where any noncompliance would not have a Material Adverse EffectContract;
(ii) to the Knowledge of SellerBuyer, each other Person that has or had any obligation or liability under any Seller Contract which is being assigned to Material Buyer isContract, and at all times since December 31January 1, 19992003, has been, in full compliance with all applicable material terms and requirements of such Material Buyer Contract;
(iii) to the Knowledge of SellerBuyer, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, Buyer 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 Material Buyer Contract, except where the occurrence of such event or assumed by Buyerexistence of such circumstance would not have a Buyer Material Adverse Effect;
(iv) to the Knowledge of SellerBuyer, no event has occurred or circumstance exists under or by virtue of any Seller Material Buyer Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Assetsits assets which would have a Buyer Material Adverse Effect; and
(v) Buyer has not given to or received from any other Person, at any time since January 1, 2003, any written notice or other written communication regarding any actual, alleged, possible or potential violation or Breach of, or default under, any Material Buyer Contract.
(e) There are no renegotiations of, written requests to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Buyer under any Buyer Contracts.
(f) Each Buyer Contract relating to the sale, design, manufacture or provision of products or services by Buyer has been entered into in the Ordinary Course of Business of Buyer 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a5.19(a) contains an accurate and complete list, and Seller Mitek has delivered to Buyer (or attached to the Disclosure Schedule as required herein) Parascript accurate and complete copies, ofof the following Contracts, which are referred to herein as “Material Mitek Contracts”:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Mitek Contract that involves performance of services or delivery of goods or materials by or to Seller Mitek of an amount or value in excess of twenty-five thousand One Hundred Thousand Dollars ($25,000100,000);
(ii) dollarseach Mitek Contract that involves performance of services or delivery of goods or materials to Mitek of an amount or value in excess of One Hundred Thousand Dollars ($100,000);
(iii) each Seller Mitek Contract that was not entered into in the its Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications Mitek in excess of ten One Hundred Thousand Dollars ($10,000) dollars100,000);
(iv) each Seller Mitek 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 twenty-five thousand One Hundred Thousand Dollars ($25,000100,000) dollars and with a term of less than one year);
(v) each Seller Mitek Contract 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 Mitek Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller Mitek with any other Person;
(vii) each Seller Mitek Contract containing covenants that in any way purport to restrict Business Mitek’s business activity or limit the freedom of Seller or Unique Fabrications Mitek to engage in any line of business or to compete with any Person;
(viii) each Seller Mitek Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications Mitek that is currently effective and outstanding;
(x) each Seller Mitek Contract entered into other than in the its Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications Mitek to be responsible for consequential damages;
(xi) each Seller Mitek Contract for capital expenditures in excess of twenty thousand One Hundred Thousand Dollars ($20,000) dollars100,000);
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller Mitek other than in the its Ordinary Course of Business; and
(xivxiii) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. Part 5.19(a) sets forth the parties to each Material Mitek Contract, the effective date of each Material Mitek Contract, the term of each Material Mitek Contract, the goods or services to which each Material Mitek Contract relates and the amount of the remaining commitment of Mitek under each Material Mitek Contract.
(b) Except as set forth in Part 3.20(b5.19(b), no shareholder stockholder of Seller or member of Unique Fabrications Mitek has or may acquire any rights under, and no shareholder stockholder of Seller or member of Unique Fabrications Mitek has or may become subject to any obligation or liability under, any Contract that relates to the Business business of Mitek or any of the Assetsits assets.
(c) Except as set forth in Part 3.20(c5.19(c):
(i) each Seller Material Mitek Contract identified or required to be identified in Part 3.205.19
(a) has not been orally modified in any material respect (other than as described in Part 5.19(c)) 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 except, as to any party other than such Parascript, as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and the Backlog List is a complete other laws of general application affecting enforcement of creditors’ rights generally and 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 limited by laws relating to the Closing Date;availability of specific performance, injunctive relief or other equitable remedies; and
(ii) each Seller such Material Mitek Contract identified or required to be identified in Part 3.20(a5.19(a) and which is being assigned to or assumed by Buyer is assignable by Seller to Buyer without does not require the receipt of consent of any other Person; and
(iii) to Person as a result of 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 Assetscontemplated Transactions.
(d) Except as set forth in Part 3.20(d5.19(d):
(i) Seller Mitek is, and at all times since December 31January 1, 19992003, has been, in compliance with all applicable material terms and requirements of each Seller Contract which is being assumed by Buyer except where any noncompliance would not have a Material Adverse EffectMitek Contract;
(ii) to the Knowledge of SellerMitek, each other Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer isMaterial Mitek Contract, and at all times since December 31January 1, 19992003, has been, in full compliance with all applicable material terms and requirements of such Material Mitek Contract;
(iii) to the Knowledge of SellerMitek, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, Mitek 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 Material Mitek Contract, except where the occurrence of such event or assumed by Buyerexistence of such circumstance would not have a Mitek Material Adverse Effect;
(iv) to the Knowledge of SellerMitek, no event has occurred or circumstance exists under or by virtue of any Seller Material Mitek Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Assetsits assets which would have a Mitek Material Adverse Effect; and
(v) Mitek has not given to or received from any other Person, at any time since January 1, 2003, any written notice or other written communication regarding any actual, alleged, possible or potential violation or Breach of, or default under, any Material Mitek Contract.
(e) There are no renegotiations of, written requests to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Mitek under any Mitek Contracts.
(f) Each Mitek Contract relating to the sale, design, manufacture or provision of products or services by Mitek has been entered into in the Ordinary Course of Business of Mitek 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.
Appears in 1 contract
Sources: Merger Agreement (Mitek Systems Inc)
Contracts; No Defaults. (a) Part 3.20(a) Schedule 3.14 contains an a complete and accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, list of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to Seller Target of an amount or value in excess of twenty-five thousand $10,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to Target of an amount or value in excess of $25,000) dollars10,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications Target in excess of ten ($10,000) dollars;
(iv) each Seller lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of of, or any leasehold or other interest in 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 twenty-five thousand ($25,000) dollars 10,000 and with a term terms of less than one year);
(v) each Seller 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 Assets;
(vi) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employmentemployees;
(vivii) each Seller joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by Seller Target with any other Person;
(viiviii) each Seller Contract containing covenants that in any way purport to restrict Business the business activity of Target or any Affiliate of Target or limit the freedom of Seller Target or Unique Fabrications any Affiliate of Target to engage in any line of business or to compete with any Person;
(viiiix) each Seller Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(xxi) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications Target to be responsible for consequential damages;
(xixii) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars;
(xii) each Seller Contract not denominated in U.S. dollars10,000;
(xiii) each written warranty, guaranty and/or guaranty, or other similar undertaking with respect to contractual performance extended by Seller Target other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement supplement, and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.14 sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts and the amount of the remaining commitment of the Target under the Contracts.
(b) Except as set forth in Part 3.20(b), Schedule 3.14:
(i) no shareholder of Seller manager or member of Unique Fabrications the Target (and no Related Person of the foregoing) has or nor may it acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business business of, or any of the Assetsassets owned or used by, Target; and
(ii) no manager, agent, employee, consultant, or contractor of Target is bound by any Contract that purports to limit the ability of such manager, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of Target, or (B) assign to Target or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.20(c):
(i) Schedule 3.14, each 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 Schedule 3.16 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Assetsterms.
(d) Except as set forth in Part 3.20(d):Schedule 3.14:
(i) Seller Target is, and at all times since December 31, 1999, inception has been, in full compliance with all applicable terms and requirements of each Seller Contract under which Target has or had any obligation or liability or by which Target or any of the assets owned or used by such Target is being assumed by Buyer except where any noncompliance would not have a Material Adverse Effector was bound;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Contract under which is being assigned to Buyer Target has or had any rights is, and at all times since December 31, 1999, inception has been, in full 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 may contravene, conflict with, or result in a Breach violation or breach of, or give Seller, Unique Fabrications, Target or any 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 terminate, or modify, any Seller Contract that is being assigned to or assumed by Buyer;Contract; and
(iv) Target has not given to the Knowledge of Selleror received from any other Person, no event has occurred or circumstance exists under or by virtue of at any Seller Contract that (with or without time since inception, any notice or lapse of timeother communication (whether oral or written) would cause the creation of regarding any Encumbrance affecting actual, alleged, possible, or potential violation or breach of, or default under, any of the Assets; andContract.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Target under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
Appears in 1 contract
Sources: Merger Agreement (Aabb Inc)
Contracts; No Defaults. (a) Part All Seller Contracts (other than Excluded Assts) are, or prior to Closing will be, held by a Targeted Subsidiary and such subsidiary will have all rights of Seller or any Seller Subsidiary thereunder. Schedule 3.20(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists each Seller Contract that involves performance of Seller and Unique Fabricationsservices by Seller, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached relating to the Disclosure ScheduleBusiness, or the Targeted Subsidiaries, of an amount or value in excess of Twenty-five Thousand dollars ($25,000);
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to Seller or the Targeted Subsidiaries of an amount or value in excess of twentyTwenty-five thousand Thousand dollars ($25,000) dollars);
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business of the Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten Twenty-five Thousand dollars ($10,000) dollars25,000);
(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 twentyTwenty-five thousand dollars ($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, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person, including any broker or administrative fee agreement;
(vii) each Seller Contract containing covenants that in any way purport to restrict the Business activity or limit the freedom of Seller or Unique Fabrications the Targeted Subsidiaries to engage in any line of business or to compete with any PersonPerson or that would limit the freedom of the Targeted Subsidiaries or Buyer to engage in any line of business or compete with any Person following the Effective Time.;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller that relates to the Business or Unique Fabrications the Targeted Subsidiaries that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business of the Business that contains or provides for an express undertaking by Seller or Unique Fabrications the Targeted Subsidiaries to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand Twenty-five Thousand dollars ($20,000) dollars25,000);
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by the Targeted Subsidiaries or Seller other than in the Ordinary Course of Business of the Business; and
(xiv) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.20(a) sets forth the parties to the Contracts, the amount of the remaining commitment of the Targeted Subsidiaries or Seller under the Contracts and the location of Seller’s office where the Contracts are located.
(b) Except as set forth in Part Schedule 3.20(b), no shareholder Related Person of Seller or member of Unique Fabrications (other than a Targeted Subsidiary) has or may acquire any rights under, and no shareholder Related Person of Seller or member of Unique Fabrications (other than a Targeted Subsidiary) has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part Schedule 3.20(c):
(i) each Seller Contract identified or required to be identified in Part 3.20
(aSchedule 3.20(a) 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 and the Backlog List is a complete and 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 Closing Dateterms;
(ii) each Seller Contract identified or required to be identified in Part Schedule 3.20(a) and which is being assigned assignable, to or assumed by Buyer is assignable the extent necessary to transfer the rights thereto, by Seller to Buyer or the Targeted Subsidiaries as contemplated by this Agreement or the Contribution Agreement without the consent Consent of any other Person; and
(iii) to the Knowledge of Seller, no Seller Contract identified or required to be identified in Part Schedule 3.20(a) and which is to be assigned to or assumed by Buyer under this Agreement will upon completion or performance thereof of the transactions contemplated herein have a Material Adverse Effect on the Business, assets or condition of Seller or the Business to be conducted by Buyer with the AssetsChange.
(d) Except as set forth in Part Schedule 3.20(d):
(i) Seller and each Targeted Subsidiary is, and at all times since December 31, 1999, 2005 has been, in compliance in all material respects 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 EffectContract;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability Liability under any Seller Contract which is being assigned to Buyer isContract, and at all times since December 31, 19992005, has been, in compliance in all material respects 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 has, will, or could reasonably be expected to, contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, the Targeted Subsidiaries 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 BuyerContract;
(iv) to the Knowledge of Seller, no 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 AssetsAssets or the Business; and
(v) neither Seller nor the Targeted Subsidiaries have given to or received from any other Person, at any time since December 31, 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 Seller Contract.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller or any Targeted Subsidiary under current or completed Seller 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.
(f) Each Seller Contract has been entered into in the Ordinary Course of Business of the 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Proxymed Inc /Ft Lauderdale/)
Contracts; No Defaults. (a) Part 3.20(aSection 2.14(a) contains an accurate and complete list, and of the Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copieslists each of the following Seller Contracts (such Seller Contracts, of:together with the Assumed Seller Contracts, the “Material Seller Contracts”):
(i) backlog lists of any joint venture, partnership or other similar agreement involving co-investment with a third party to which Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Scheduleis a party;
(ii) to any contract or agreement involving the extent not listed on Part 3.20
sale of any assets of Seller, or the acquisition of any assets of any Person by Seller, in any business combination transaction (a) from Section 3.20(a)(i) abovewhether by merger, each Seller Contract that involves performance sale of services stock or delivery units, sale of goods assets or materials by or to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollarsotherwise);
(iii) each any note, indenture, loan agreement, credit agreement, security agreement, financing agreement, or other evidence of Indebtedness relating to the borrowing of money by Seller, any guarantee made by Seller Contract that was not entered into in favor of any Person guaranteeing obligations of such Person, or any letter of credit issued for the Ordinary Course account of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) dollarsSeller;
(iv) each any employment or consulting agreement between Seller Contract affecting and any of the ownership of, leasing of, title to, use employees or consultants of Seller that (A) obligates Seller to make annual cash payments in an amount exceeding $10,000 or make any leasehold cash payments to any Person in the event of a termination of such Person’s employment or other interest in any real consulting arrangement with Seller or personal property on account of the transactions contemplated by this Agreement; or (except personal property leases and installment and conditional sales agreements having a value per item B) contains non-competition provisions for the benefit of Seller from an employee or aggregate payments of less than twenty-five thousand ($25,000) dollars and with a term of less than one year)an independent consultant;
(v) each Seller Contract any collective bargaining agreement or contract with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employmentunion;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs any contract or liabilities by Seller with any other Person;
(vii) each Seller Contract agreement containing covenants that in any way purport to restrict Business the business activity of Seller or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viiivii) each any other Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications otherwise material to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of BusinessSeller; and
(xivviii) each amendment, supplement supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):represents that:
(i) each Each Material Seller Contract identified or required to be identified in Part 3.20
(a) is valid and which is to be assigned to or assumed by Buyer under this Agreement is binding and in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Dateeffect;
(ii) each Neither Seller nor, to the Knowledge of the Seller, any other party to any Material Seller Contract, is or since January 1, 2010, has been, in breach or default under any Material 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 aware of any other Personcircumstances of facts that could lead to assertion that Seller is, or has been, in breach or default under any Material Seller Contract; and
(iii) Since January 1, 2010, Seller has not given to, or received from, any other party to any Material Seller Contract, any notice or communication (whether written or oral) regarding any actual or alleged breach of or default under any Material Seller Contract by Seller or any other party to such Material Seller Contract; and
(iv) There are no renegotiations or, to the Knowledge of Seller, no outstanding rights to negotiate, any amount to be paid or payable to or by Seller under any Material Seller Contract identified other than with respect to non-material amounts in the ordinary course of business, and no Person has made a written demand for such negotiations. Seller has not released or required waived any of its rights under any Material Seller Contract.
(c) Each Government Contract to be which Seller is a party (the “Seller Government Contract”) is identified in Part 3.20(aSection 2.14(a) of the 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 prime 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 connection with any Seller Government Contract other than any of the foregoing that have been resolved prior to be assigned 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 assumed by Buyer under this Agreement will upon completion set off and not resolved. No state of facts exists that would give rise to any of the consequences, circumstances or performance thereof have a Material Adverse Effect on events described in the Business, assets or condition of Seller or the Business to be conducted by Buyer with the Assetspreceding sentence.
(d) Except as Neither Seller nor, to the Seller’s Knowledge, any of the directors or executive officers of Seller is (or within the last three (3) years has been) under administrative, civil or criminal investigation or indictment or material information or audit (other than 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 (or comparable disclosure to any foreign Governmental Authority) 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 consequences set forth in Part 3.20(d):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 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.
(ie) Neither the Seller isnor, 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 knowledge of the Seller, 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 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, Unique Fabrications, 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 the Knowledge of Seller, no 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; andexecutive 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 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 set forth on the Seller Disclosure Schedule. To the extent applicable, the Material Seller Contracts identified on the Seller Disclosure Schedule are separately identified by the type of contract.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) Schedule 3.13 contains an a complete and accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, list of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to Seller Target of an amount or value in excess of twenty-five thousand $10,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to Target of an amount or value in excess of $25,000) dollars10,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications Target in excess of ten ($10,000) dollars;
(iv) each Seller lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of of, or any leasehold or other interest in 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 twenty-five thousand ($25,000) dollars 10,000 and with a term terms of less than one year);
(v) each Seller 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 Assets;
(vi) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employmentemployees;
(vivii) each Seller joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by Seller Target with any other Person;
(viiviii) each Seller Contract containing covenants that in any way purport to restrict Business the business activity of Target or any Affiliate of Target or limit the freedom of Seller Target or Unique Fabrications any Affiliate of Target to engage in any line of business or to compete with any Person;
(viiiix) each Seller Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(xxi) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications Target to be responsible for consequential damages;
(xixii) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars;
(xii) each Seller Contract not denominated in U.S. dollars10,000;
(xiii) each written warranty, guaranty and/or guaranty, or other similar undertaking with respect to contractual performance extended by Seller Target other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement supplement, and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.13 sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts and the amount of the remaining commitment of the Target under the Contracts.
(b) Except as set forth in Part 3.20(b)Schedule 3.13:
(i) no officer, director or shareholder who was in excess of five percent (5%) of the capital stock of the Target (and no shareholder Related Person of Seller or member of Unique Fabrications the foregoing) has or nor may it acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business business of, or any of the Assetsassets owned or used by, Target; and
(ii) no officer, director, agent, employee, consultant, or contractor of Target 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 the business of Target, or (B) assign to Target or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.20(c):
(i) Schedule 3.13, each 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 Schedule 3.13 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Assetsterms.
(d) Except as set forth in Part 3.20(d):Schedule 3.13:
(i) Seller Target is, and at all times since December 31, 1999, inception has been, in full compliance with all applicable terms and requirements of each Seller Contract under which Target has or had any obligation or liability or by which Target or any of the assets owned or used by such Target is being assumed by Buyer except where any noncompliance would not have a Material Adverse Effector was bound;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Contract under which is being assigned to Buyer Target has or had any rights is, and at all times since December 31, 1999, inception has been, in full 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 may contravene, conflict with, or result in a Breach violation or breach of, or give Seller, Unique Fabrications, Target or any 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 terminate, or modify, any Seller Contract that is being assigned to or assumed by Buyer;Contract; and
(iv) Target has not given to the Knowledge of Selleror received from any other Person, no event has occurred or circumstance exists under or by virtue of at any Seller Contract that (with or without time since inception, any notice or lapse of timeother communication (whether oral or written) would cause the creation of regarding any Encumbrance affecting actual, alleged, possible, or potential violation or breach of, or default under, any of the Assets; andContract.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Target under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(aOther than the Seller Contracts set forth in Section 2.2(e) of the Seller Disclosure Letter, Section 3.17(a) of the Seller Disclosure Letter contains an accurate and complete list, and Seller has delivered Sellers have made available to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract (A) that involves performance of services or delivery of goods or materials by or to any Seller of an amount or of value in excess of twenty-five thousand $100,000; or (B) that has a remaining term of more than one (1) year and that involves performance of services or delivery of goods or materials by any Seller of an amount of value in excess of $25,00050,000;
(ii) dollarseach Seller Contract (A) that involves performance of services or delivery of goods or materials to any Seller of an amount of value in excess of $100,000, or (B) that has a remaining term of more than one (1) year and that involves performance of services or delivery of goods or materials to any Seller of an amount of value in excess of $50,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course ordinary course of the Business consistent with past practices and that (A) involves an amount of value or expenditures or receipts of any Seller or Unique Fabrications in excess of ten $100,000, or ($10,000B) dollarshas a remaining term of more than one (1) year, and is not subject to termination without penalty;
(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 twenty-five thousand ($25,000) dollars 75,000 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;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Seller with any other Person;
(vii) each Seller Contract containing covenants that in restrict any way purport to restrict Business Seller’s business activity or limit the freedom of such Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of any Seller relating to the Business or Unique Fabrications the Assets that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars100,000;
(xiixi) each Seller Contract not denominated in U.S. dollars;
(xiiixii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by any Seller with respect to the Business other than in the Ordinary Course ordinary course of Businessthe Business consistent with past practices;
(xiii) each Bid that involves the performance of services or delivery of goods or materials by any Seller of an amount of value in excess of $100,000, or that has a remaining term of more than one (1) year and that involves performance of services or delivery of goods or materials by any Seller of an amount of value in excess of $50,000; and
(xiv) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any Section 3.17(b) of the Assets.
(c) Except as set forth in Part 3.20(c):Seller Disclosure Letter:
(i) each Seller Contract or Bid identified or required to be identified in Part 3.20
(aSection 3.17(a) and of the Seller Disclosure Letter or which is to be assigned to or assumed by Buyer under this Agreement is in full force and effect and is valid valid, binding and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Date;terms; and
(ii) each Seller Contract or Bid identified or required to be identified in Part 3.20(aSection 3.17(a) and of the Seller Disclosure Letter or 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 is assignable by the applicable Seller to Buyer without the Consent of any other Person except as disclosed in or performance thereof have a Material Adverse Effect on the Business, assets or condition of Seller or the Business pursuant to be conducted by Buyer with the AssetsSection 3.2(c).
(dc) Except as set forth in Part 3.20(d):Section 3.17(c) of the Seller Disclosure Letter:
(i) each Seller is, and at all times since December 31, 1999, has been, is 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 EffectBuyer;
(ii) no Seller has released any of its rights under a Seller Contract which is assumed by Buyer under this Agreement;
(iii) to the Knowledge of SellerSellers’ Knowledge, each other Person that has or had any obligation or liability under any Seller Contract which is being assigned to assumed by Buyer is, and at all times since December 31, 1999, has been, is in compliance with all applicable terms and requirements of such Seller Contract;
(iiiiv) to the Knowledge of SellerSellers’ Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes would reasonably be expected to contravene, conflict with or result in a Breach breach of, or give Seller, Unique Fabrications, any 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 BuyerBuyer under this Agreement;
(ivv) to the Knowledge of SellerSellers’ Knowledge, no 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 (other than a Permitted Encumbrance) affecting any of the Assets; and
(vi) to Sellers’ Knowledge, there is no Seller Contract listed in Section 3.17(a) of the Seller Disclosure Letter to be assumed by Buyer on which Sellers are behind schedule with respect to the timely delivery of any products or services.
(d) Section 3.17(d) of the Seller Disclosure Letter sets forth a list of the Seller Contracts described in Section 3.17(a)(i)(A) in respect of which any Seller has current or future warranty obligations and, to Sellers’ Knowledge, a list of all warranty claims of customers of the Business asserted in writing (including by facsimile or electronic mail) against Sellers in respect of which the necessary repairs or replacement have not been completed.
(e) Each of the Seller Contracts or Bids entered into since August 5, 2005 through the date hereof have been entered into or issued in the ordinary course of business consistent with past practice.
Appears in 1 contract
Sources: Asset Purchase Agreement (Stewart & Stevenson Services Inc)
Contracts; No Defaults. A. SCHEDULE 3.17(A) of the Company Disclosure Schedule contains a complete and accurate list (a) Part 3.20(a) contains an accurate and complete listother than Customer License Agreements which are disclosed in Section 3.22.), and Seller the Company has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate Merger Sub and Parent true and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Each Contract that involves performance of services or delivery of goods or materials by the Company or to Seller the Subsidiary of an amount or value in excess of twentyTwenty-five thousand Five Thousand and No/100 Dollars ($25,00025,000.00);
(ii) dollarsEach Contract that involves performance of services or delivery of goods or materials to the Company or the Subsidiary of an amount or value in excess of Twenty-Five Thousand and No/100 Dollars ($25,000.00);
(iii) Except for customer Contracts and inventory and equipment purchase orders incurred in the Ordinary Course of Business, each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller the Company or Unique Fabrications the Subsidiary in excess of ten Twenty-Five Thousand and No/100 Dollars ($10,000) dollars25,000.00);
(iv) each Seller Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of of, or any leasehold or other interest in 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 twentyTwenty-five thousand Five Thousand and No/100 Dollars ($25,00025,000.00) dollars and with a term terms of less than one (1) year)) of the Company or the Subsidiary;
(v) each Seller Each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employmentthe Company or the Subsidiary;
(vi) each Seller Each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by Seller the Company or the Subsidiary with any other Person;
(vii) each Seller Each Contract containing covenants that in any way purport to restrict Business the business activity of the Company or the Subsidiary or limit the freedom of Seller the Company or Unique Fabrications the Subsidiary to engage in any line of business or to compete with any Person;
(viii) each Seller Each Contract (relating to the Company or the Subsidiary) providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each Each power of attorney of Seller relating to the Company or Unique Fabrications the Subsidiary that is currently effective and outstanding;
(x) each Seller Each Contract entered into other than in relating to the Ordinary Course of Business that contains Company or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract the Subsidiary for capital expenditures in excess of twenty thousand Twenty-Five Thousand and No/100 Dollars ($20,000) dollars25,000.00);
(xiixi) each Seller Contract not denominated in U.S. dollars;
(xiii) each Each written warranty, guaranty and/or guaranty, and or other similar undertaking with respect to contractual performance extended by Seller the Company or the Subsidiary other than in the Ordinary Course of Business; and
(xivxii) each Each amendment, supplement supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) B. Except as set forth in Part 3.20(b)SCHEDULE 3.17(B) of the Company Disclosure Schedule, to the Knowledge of the Company, no shareholder officer, director, or employee of Seller the Company or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, the Subsidiary is bound by any Contract that relates purports to limit the ability of such officer, director or employee to (i) engage in or continue any conduct, activity, or practice relating to the Business business of the Company or any Subsidiary, as currently conducted or (ii) assign to the Company or any Subsidiary any rights to any invention, improvement, or discovery relating to the business of the AssetsCompany or any Subsidiary.
(c) C. Except as set forth in Part 3.20(c):
(iSCHEDULE 3.17(C) of the Company Disclosure Schedule, each Seller Contract identified or required to be identified in Part 3.20
(aSCHEDULE 3.17(A) and which is to be assigned to or assumed by Buyer under this Agreement of the Company Disclosure Schedule is in full force and effect and is valid and enforceable effect, except as to matters or default which in accordance with its terms and the Backlog List is a complete and 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 aggregate would not been cancelled on or prior to the Closing 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 Company Material Adverse Effect on the Business, assets or condition of Seller or the Business to be conducted by Buyer with the AssetsEffect.
(d) D. Except as set forth in Part 3.20(d):SCHEDULE 3.17(D) of the Company Disclosure Schedule:
(i) Seller is, The Company and at all times since December 31, 1999, has been, each Subsidiary is in full compliance with all applicable material terms and requirements of each Seller Contract under which Company or such Subsidiary has or had any obligation or liability or by which Company or such Subsidiary or any of the assets owned or used by Company or such Subsidiary is being assumed by Buyer or was bound, except where any noncompliance the failure to comply with such terms and requirements would not have a Company Material Adverse Effect;
(ii) to To the Knowledge of Sellerthe Company, each other Person that has or had any obligation or liability under any Seller Contract under which the Company has or had any rights is being assigned to Buyer is, and at all times since December 31, 1999, has been, in full compliance with all applicable material terms and requirements of such Contract;
(iii) to To the Knowledge of Sellerthe Company, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes may contravene, conflict with, or result in a Breach violation or breach of, or give Seller, Unique Fabrications, 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 payment under, or to cancel, terminate terminate, or modify, any Seller Contract that is being assigned to material Contract, except for events or assumed by Buyer;circumstances which in the aggregate would not have a Company Material Adverse Effect; and
(iv) Neither the Company nor any Subsidiary has given to or received from any other Person, at any time since March 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or breach of, or default under, any material Contract.
E. There are no renegotiations of or attempts to renegotiate any material amounts paid or payable to the Knowledge of Seller, no event Company or any Subsidiary under current or completed Contracts with any Person and the Company has occurred or circumstance exists under or by virtue of not received any Seller Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Assets; andwritten demand for such renegotiation.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Practice Works Inc)
Contracts; No Defaults. (a) Part 3.20(aSchedule 3.18(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of Twenty-Five Thousand Dollars ($25,000);
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twentyTwenty-five thousand Five Thousand Dollars ($25,000) dollars);
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten Fifty Thousand Dollars ($10,000) dollars;50,000)
(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 twenty-five thousand Ten Thousand Dollars ($25,00010,000) dollars and with a term of less than one (1) 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;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand Twenty-Five Thousand Dollars ($20,000) dollars25,000);
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller 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. Schedule 3.18(a) sets forth the parties to the Contracts and the amount of the remaining commitment of Seller under the Contracts.
(b) Except as set forth in Part 3.20(bSchedule 3.18(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business business of Seller or any of the Assets.
(c) Except as set forth in Part 3.20(cSchedule 3.18(c):
(i) each Seller Contract identified or required to be identified in Part 3.20
(aSchedule 3.18(a) 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 and the Backlog List is a complete and 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 Closing Dateterms;
(ii) each Seller Contract identified or required to be identified in Part 3.20(aSchedule 3.18(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(aSchedule 3.18(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 material adverse affect on the Businessbusiness, assets or condition of Seller or the Business business to be conducted by Buyer with the Assets.
(d) Except as set forth in Part 3.20(dSchedule 3.18(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 EffectBuyer;
(ii) to the Knowledge of Seller's Knowledge, 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 since December 31, 1999, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of Seller's Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes contravenes, conflicts with or will result in a Breach of, or give Seller, Unique Fabrications, or other Person the right to declare a default or exercise any remedy under, or to accelerate accelerates the maturity or performance of, or payment under, or to cancelcancels, terminate terminates or modifymodifies, any Seller Contract that is being assigned to or assumed by Buyer;
(iv) to the Seller's Knowledge of Seller, no 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 any notice or other communication (whether oral or written) regarding any actual or alleged 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 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.
(f) 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 of Seller 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of dollars ($ );
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand dollars ($25,000) dollars$ );
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten dollars ($10,000) dollars$ );
(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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than twenty-five thousand dollars ($25,000$ ) 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, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars$ );
(xii) each Seller Contract not denominated in U.S. dollars;; dollars
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller 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.
(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of Seller under the Contracts and the location of Seller's office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications neither Shareholder has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications neither Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the Business business of Seller or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each Seller Contract identified or required to be identified in Part 3.20
(a3.20(a) 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 and the Backlog List is a complete and 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 Closing Dateterms;
(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 material adverse affect on the Businessbusiness, assets or condition of Seller or the Business 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, 199919/20 , 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 EffectBuyer;
(ii) to the Knowledge of Seller, 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 since December 31, 199919/20 , has been, in full 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 may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, 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 the Knowledge of Seller, no 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, at any time since , 19/20 , 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 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 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.
(f) 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 of Seller 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.
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts; No Defaults. (a) Part Section 3.20(a) of the Disclosure Schedule contains an accurate and complete list, and Seller has delivered Sellers have made available to Buyer (or attached to the Disclosure Schedule as required herein) Buyers accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to a Seller of an amount or value in excess of twenty-five thousand One Hundred Thousand Dollars ($25,000100,000) dollarsin any twelve (12) month period;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to a Seller of an amount or value in excess of One Hundred Thousand Dollars ($100,000) in any twelve (12) month period;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten One Hundred Thousand Dollars ($10,000100,000) dollarsin any twelve (12) month period;
(iv) each Real Property Lease and Seller Contract affecting the ownership of, leasing of, title to, use of, license of or any leasehold or other interest in any real or personal property Tangible Personal Property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than twenty-five thousand One Hundred Thousand Dollars ($25,000) dollars and with a term of less than one year100,000);
(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;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict the Business activity or limit the freedom of a Seller or Unique Fabrications to engage in any line of business or to compete with any Person, except for non-disclosure, proprietary information or confidentiality agreements with Third Parties entered into in the Ordinary Course of Business and which have be previously made available to Buyers;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;; EXECUTION VERSION
(ix) each power of attorney of a Seller or Unique Fabrications that is currently effective and outstandingoutstanding with respect to the Business;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by a Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand One Hundred Thousand Dollars ($20,000) dollars100,000);
(xii) each Seller Government Contract not denominated in U.S. dollarsor Bid;
(xiii) each Seller Contract pursuant to which a third party has licensed to a Seller any Intellectual Property that is material to the operation of the Business, other than licenses for “shrink wrap” or other commercially available software or other technology;
(xiv) each Seller Contract pursuant to which a Seller has granted a third party any rights or licenses to any material Intellectual Property of such Seller, other than non-exclusive licenses granted in the Ordinary Course of Business;
(xv) each Seller Contract pursuant to which a Seller has engaged, or entered into an engagements with any third party to develop or create any software or other technology or Intellectual Property rights for a Seller;
(xvi) each Seller Contract that is classified or that involves the use of classified Assets; and
(xvii) each written warranty, warranty and guaranty and/or other similar undertaking with respect to contractual performance extended by a Seller 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.
(b) Except as set forth in Part Section 3.20(b)) of the Disclosure Schedule, no shareholder of Seller or member of Unique Fabrications neither Shareholder has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications neither Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part Section 3.20(c):
(i) of the Disclosure Schedule, each Seller Contract identified or required to be identified in Part 3.20
(aSection 3.20(a) and which is to be assigned to or assumed by Buyer under this Agreement of the Disclosure Schedule comprising the Assumed Contracts is in full force and effect and is a valid and binding obligation of the Seller party thereto and, to Sellers’ Knowledge, a valid and binding obligation of the other party or parties thereto enforceable against such party or parties in accordance with its terms and the Backlog List is a complete and 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 subject to the Closing Date;
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to tor affecting creditors’ rights generally, general equitable principles (ii) each Seller Contract identified whether considered in a proceeding in equity 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.at law). EXECUTION VERSION
(d) Except as set forth in Part Section 3.20(d):) of the Disclosure Schedule:
(i) each Seller is, and at all times since December 31June 1, 1999, 2007 has been, in material compliance with all applicable terms and requirements of each Seller Contract which is being assumed by Buyer except where any noncompliance would not have and to which it is a Material Adverse Effectparty;
(ii) to the Knowledge of SellerSellers’ Knowledge, 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 since December 31June 1, 1999, 2007 has been, in material compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of SellerSellers’ Knowledge, no event has occurred or circumstance exists that (with or without notice or the lapse of time) constitutes may contravene, conflict with or result in a material Breach of, or give Seller, Unique Fabrications, Sellers or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, under or to cancel, terminate or modify, any Seller Contract that is being assigned to or assumed by Buyer;comprising an Assumed Contract; and
(iv) to the Knowledge of SellerSellers’ Knowledge, no event has occurred or circumstance exists under or by virtue of any Seller Contract that (with or without notice or the lapse of time) would cause the creation of any Encumbrance affecting any of the Assets; and, except Permitted Encumbrances.
(e) Except as set forth in Section 3.20(e) of the Disclosure Schedule, no Seller has received written notice of any default by it under any Seller Contract comprising the Assumed Contracts, except for defaults that are not material.
(f) There are no existing renegotiations of or, to Sellers’ Knowledge, attempts to renegotiate, any material amounts paid or payable to a Seller under current or completed Seller Contract comprising the Assumed 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.
(g) Except as set forth in Section 3.20(g) of the Disclosure Schedule, each Seller Contract comprising the Assumed Contracts relating to the sale, design, manufacture or provision of products or services by a Seller 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.
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts; No Defaults. (a) Part 3.20(aSchedule 3.18(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of $50,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars50,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) dollars50,000;
(iv) each Seller Contract affecting in any material respect 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 twenty-five thousand ($25,000) 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, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars50,000;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller 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.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(cSchedule 3.18(b):
(i) each Seller Contract identified or required to be identified in Part 3.20
(aSchedule 3.18(a) 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 against Seller and, to Seller's Knowledge, the parties thereto in accordance with its terms and the Backlog List is a complete and 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 Closing Date;terms; and
(ii) each Seller Contract identified or required to be identified in Part 3.20(aSchedule 3.18(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.
(dc) Except as set forth in Part 3.20(dSchedule 3.18(c):
(i) Seller is, and at all times since December 31, 1999, has been, is in material 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 EffectBuyer;
(ii) to the Knowledge of Seller, 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 since December 31, 1999, has been, is in material 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 may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, 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, except where such event would not have a Seller Material Adverse Effect;
(iv) to the Knowledge of Seller, no 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) to Seller's Knowledge, Seller has not given to or received from any other Person, at any time since January 2, 2002, any notice or other written or oral communication 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.
(d) There are no renegotiations of, or outstanding rights 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 of Seller 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 that would have a Seller Material Adverse Effect.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) contains an accurate and complete list, and Seller has Sellers and Foreign Subsidiaries have delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by to any Seller or to Seller any Foreign Subsidiary of an amount or value in excess of twenty-five thousand One Hundred Fifty Thousand Dollars ($25,000) dollars150,000);
(iiiii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of a Seller or Unique Fabrications a Foreign Subsidiary in excess of ten One Hundred Fifty Thousand Dollars ($10,000) dollars150,000);
(iviii) 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 more than twenty-five thousand Fifty Thousand Dollars ($25,00050,000) dollars and with a term of less than one year);
(viv) 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;
(viv) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(viivi) each Seller Contract containing covenants that in any way purport to restrict Business any Seller’s or any Foreign Subsidiary’s business activity or limit the freedom of any Seller or Unique Fabrications any Foreign Subsidiary to engage in any line of business or to compete with any Person;
(viiivii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ixviii) each power of attorney of any Seller or Unique Fabrications any Foreign Subsidiary that is currently effective and outstanding;
(xix) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Seller or Unique Fabrications any Foreign Subsidiary to be responsible for consequential damages;
(xix) each Seller Contract for capital expenditures in excess of twenty thousand Fifty Thousand Dollars ($20,000) dollars50,000);
(xii) each Seller Contract not denominated in U.S. dollars;
(xiiixi) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by any Seller or any Foreign Subsidiary other than in the Ordinary Course of Business; and
(xivxii) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. Part 3.20(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts and the location of such Seller’s or Foreign Subsidiary’s office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.20(b), no shareholder none of Seller or member of Unique Fabrications Design Partners nor any Principal has or may acquire any rights under, and no shareholder none of Seller or member of Unique Fabrications Design Partners nor any Principal has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each Seller Contract identified or required to be identified in Part 3.20
(a3.20(a) 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 and the Backlog List is a complete and 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 Closing Dateterms;
(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 the applicable Seller to Buyer without the consent of any other PersonPerson or with respect to such Contracts of Foreign Subsidiaries, cannot be terminated by any other Person as a result of the consummation of the transactions contemplated hereby; and
(iii) to the Knowledge of SellerSellers and/or Foreign Subsidiaries, 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 or to be continued by Foreign Subsidiary 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) each Seller or each Foreign Subsidiary is, and at all times since December 31January 1, 19992010, 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 or being continued by a Material Adverse EffectForeign Subsidiary;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer or retained by a Foreign Subsidiary is, and at all times since December 31January 1, 19992010, has been, in full 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 may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, the applicable Seller or Foreign Subsidiary 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 BuyerBuyer or retained by a Foreign Subsidiary;
(iv) to the Knowledge of Seller, no 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) no Seller and no Foreign Subsidiary has given to or received from any other Person, at any time since January 1, 2010, 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 which is being assigned to or assumed by Buyer or which belongs to a Foreign Subsidiary.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any 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.
(f) Each Contract relating to the sale, design, manufacture or provision of products or services by a Seller or a Foreign Subsidiary has been entered into in the Ordinary Course of Business of such Seller or Foreign Subsidiary 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) Except as set forth in Part 3.20(g), no Contract restricts Seller or Foreign Subsidiary (or Buyer as Seller’s successor in interest) from performing or providing goods and services to other Persons, including, without limitation, competitors to such contracting parties.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(aSection 3.17(a) of the Disclosure Schedule contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of twenty-five thousand dollars ($25,000);
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand dollars ($25,000) dollars);
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten twenty-five thousand dollars ($10,000) dollars25,000);
(iv) each Seller Contract affecting the ownership of, leasing of, title to, use of of, or any leasehold or other interest in 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 twenty-five thousand dollars ($25,000) dollars and with a term of less than one (1) year);
(v) each Seller Contract with any labor union or other employee Employee representative of a group of employees Employees relating to wages, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to to, or by by, any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains contains, or provides for for, an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty twenty-five thousand dollars ($20,000) dollars25,000);
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller 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.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, 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, Unique Fabrications, 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 the Knowledge of Seller, no 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
Appears in 1 contract
Sources: Asset Purchase Agreement (Advanced Nutraceuticals Inc/Tx)
Contracts; No Defaults. (a) Part Schedule 3.20(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of $25,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars;
(iii) each Seller Contract that was not entered into in the Ordinary Course ordinary course of Business business, consistent with past practice and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) 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 personal 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 20,000 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;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller’s business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course ordinary course of Business business, consistent with past practice, that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars25,000;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each Seller Contract with a written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course ordinary course of Businessbusiness, consistent with past practice; and
(xiv) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. The parties hereto agree that Seller need not deliver purchase or sale orders or supplier’s purchase orders entered into by Seller in the ordinary course of business, consistent with past practice in an amount less than $25,000.
(b) Except as set forth in Part on Schedule 3.20(b), no shareholder Shareholder or any Related Person of Seller or member of Unique Fabrications a Shareholder has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the Business business of Seller or any of the Assets.
(c) Except as set forth in Part on Schedule 3.20(c):
(i) each Seller Contract identified or required to be identified in Part 3.20
(aon Schedule 3.20(a) 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 and the Backlog List is a complete and correct list of all Business customer orders on backlog as of the Closing Date and such list represents actualterms, bona fide, outstanding orders of the Business that have not been cancelled on or prior except to the Closing Dateextent that enforceability is limited by the laws of bankruptcy, insolvency or similar laws affecting creditors’ rights and remedies, or by equitable principles;
(ii) each Seller Contract identified or required to be identified in Part on Schedule 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 on Schedule 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 material adverse affect on the Businessbusiness, assets or condition of Seller or the Business business to be conducted by Buyer with the Assets.
(d) Except as set forth in Part on Schedule 3.20(d):
(i) Seller is, is in material and at all times since December 31, 1999, has been, in substantial 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 EffectBuyer;
(ii) to the Knowledge of Seller, 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 since December 31January 1, 19992000, has been, in full 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 may contravene, conflict with or result in a Breach breach of, or give any other Person, or to the Knowledge of Seller or the Shareholders, Seller, Unique Fabrications, 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 the Knowledge of Seller, no 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 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 which is being assigned to or assumed by Buyer.
(e) Except as set forth on Schedule 3.20(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 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.
(f) 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 of Seller, consistent with past practice, 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) Except as set forth on Schedule 3.20(g), Seller has not previously refused to distribute a New Non-Core Product (as that term is defined in the Mam Agreement)
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) contains an accurate and complete list, and Seller has delivered to FindWhat and Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of $5,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars5,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) dollars5,000;
(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 twenty-five thousand ($25,000) dollars 5,000 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;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars5,000;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller 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 3.20(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of Seller under the Contracts and the location of Seller's office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications Shareholder has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the Business business of Seller or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Dateterms;
(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(a3.20
(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 material adverse affect on the Businessbusiness, assets or condition of Seller or the Business 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, 2003 has been, in compliance in all material respects 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 EffectBuyer;
(ii) to the Knowledge of Seller, 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 since December 31, 1999, 2003 has been, in compliance in all material respects with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of Seller's Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, 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 the Knowledge of Seller, 's knowledge no 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, at any time since December 31, 2003, 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 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 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.
(f) 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 of Seller 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(aSchedule 3.12(a) contains an a complete and accurate and complete list, and the Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate Purchaser true and complete copies, of:
: (i) backlog lists each Contract (excluding individual invoices or order confirmations in the Ordinary Course of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profitBusiness) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to Seller the Business of an amount or value in excess of twenty-five thousand $1,000,000; (ii) each Contract (excluding individual purchase orders in the Ordinary Course of Business) that involves performance of services or delivery of goods or materials to the Business of an amount or value in excess of $25,000) dollars;
1,000,000; (iii) each Seller material Contract pursuant to which the Business licenses other persons to use any of the Owned Software or Licensed Software or has agreed to support, maintain, upgrade, enhance, modify, or consult with respect to any of the Owned Software or Licensed Software, or pursuant to which other persons license the Business to use the Licensed Software; (iv) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications the Business in excess of ten $250,000; ($10,000v) dollars;
(iv) the Assumed Real Property Lease, each Seller Assumed Personal Property Lease, or other material license, lease, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of of, or any leasehold or other interest in 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 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, hours and other conditions of employment;
the Acquired Assets; (vi) each Seller Contract with respect to material Intellectual Property Assets of the Business; (vii) each material joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by Seller the Business with any other Person;
; (viiviii) each Seller Contract containing covenants that in any way purport to restrict Business the business activity of the Business, or limit the freedom of Seller or Unique Fabrications the Business to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
; (ix) each power of attorney of Seller or Unique Fabrications the Business that is currently effective and outstanding;
; (x) each Seller Contract entered into other than in of the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand $250,000; and ($20,000) dollars;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiiixi) each written warranty, guaranty and/or guaranty, and or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of Acquired Assets or the Business; and
(xiv) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each 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 is . The Assumed Contracts are in full force and effect and is are valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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) their terms. Except as set forth in Part 3.20(d):
Schedule 3.12(c): (i) The Seller is, and at all times since December 31, 1999, has been, in compliance complied 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;
the Assumed Contracts; (ii) to the Knowledge of Seller, 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 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 may contravene, conflict with, or result in a Breach violation or breach of, or give Seller, Unique Fabrications, the 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 terminate, or modify, any the Assumed Contracts; and (iii) the Seller Contract that is being assigned has not given to or assumed by Buyer;
received from any other Person any notice or other communication (ivwhether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, the Assumed Contracts. There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Seller under the Assumed Contracts, with any Person and to the Knowledge of the Seller, no event such Person 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; andmade written demand for such renegotiation.
Appears in 1 contract
Contracts; No Defaults. (a) Part Schedule 3.20(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) true, accurate and complete copies, ofof each Seller Contract:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of Dollars ($ );
(ii) that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand Dollars ($25,000) dollars$ );
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten Dollars ($10,000) dollars$ );
(iv) each Seller Contract affecting the ownership of, leasing of, title to, use of 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 twenty-five thousand ($25,000) dollars and with a term of less than one year)property;
(v) each Seller Contract with any labor union or other employee representative of a group of employees relating to wages, hours hours, and other conditions of employment;
(vi) each Seller Contract relating to bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option or similar plan or practice, whether formal or informal, or any severance agreement or arrangement;
(however namedvii) involving a sharing of profits, losses, costs costs, or liabilities by Seller with any other Person;
(viiviii) each Seller Contract containing covenants that in any way purport to restrict Business Seller’s business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viiiix) each Seller Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each constituting a power of attorney of Seller or Unique Fabrications that is currently (or could become in the future) effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand Dollars ($20,000) dollars$ );
(xii) each Seller Contract not denominated in U.S. dollarsfor the employment of any officer, individual employee or other person on a full time, part time or consulting basis or providing for the payment of any cash or other compensation or benefits upon the sale of the Business;
(xiii) each written warrantypursuant to which any current or former employee is entitled to payment for a covenant not to compete with Seller;
(xiv) relating to any Indebtedness of Seller or relating to the borrowing of money or to mortgaging, pledging or otherwise placing an Encumbrance on any of the Assets or any letter of credit arrangements;
(xv) relating to any license or royalty agreements;
(xvi) relating to any nondisclosure or confidentiality agreements;
(xvii) relating to any guaranty and/or of any material obligation for borrowed money or otherwise, other similar undertaking than endorsements made for collection;
(xviii) relating to any distribution arrangement;
(xix) with the same party continuing over a period of more than six (6) months from the date or dates thereof, not terminable by Seller upon thirty (30) days’ or less notice without penalty;
(xx) for the marketing, sale, advertising or promotion of the Business’ products or services, if such Seller Contract is material to the Business;
(xxi) with any officer, director, partner or other Related Person;
(xxii) for any warranty agreement with respect to contractual performance extended by products delivered or services rendered or any indemnity agreement with any supplier or customer under which Seller other than is obligated to indemnify such supplier or customer against liability claims;
(xxiii) relating to ownership of or investments in any business or enterprise, including investments in partnerships, joint ventures and minority equity investments;
(xxiv) relating to any settlement, conciliation or similar agreement;
(xxv) in the form of Seller’s standard warranty terms for the Business;
(xxvi) that is otherwise material to the Business, whether or not entered into in the Ordinary Course of Business; and
(xivxxvii) each amendment, supplement supplement, and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.20(a) sets forth reasonably complete details concerning such Contracts, including the parties to, and dates and titles of, the Contracts and, with regard to oral Contracts, a description of the obligations under and the subject matter of such Contracts.
(b) Except as set forth in Part Schedule 3.20(b), no shareholder Related Person or stockholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder Related Person or stockholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability Liability under, any Contract that relates to the Business or any of the AssetsSeller Contract.
(c) Except as set forth in Part Schedule 3.20(c):
(i) each Seller Contract identified or required to be identified in Part 3.20
(aSchedule 3.20(a) and which that is to be assigned to or assumed by Buyer under this Agreement (each an “Assigned Contract”) is identified as such on Schedule 3.20(a) with an asterisk, in full force and effect and is valid and enforceable in accordance with its terms and except as the Backlog List is a complete and correct list of all Business customer orders on backlog as of the Closing Date and such list represents actualenforcement thereof may be limited by equitable principles or by bankruptcy, bona fideinsolvency, outstanding orders of the Business that have not been cancelled on reorganization, moratorium, or prior similar laws relating to the Closing Dateor limiting creditors’ rights generally;
(ii) each Seller Assigned 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 Assigned 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 AssetsSeller.
(d) Except as set forth in Part Schedule 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 EffectAssigned Contract;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability Liability under any Seller Assigned Contract which is being assigned to Buyer is, and at all times since December 31, 1999, has been, been in full 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 may contravene, conflict with, or result in a Breach breach of, or give Seller, Unique Fabrications, Seller or any 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 terminate, or modify, modify any Seller Contract that is being assigned to or assumed by BuyerAssigned Contract;
(iv) to the Knowledge of Seller, no 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, at any time since
(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 no such Person has made written demand for such renegotiation.
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts; No Defaults. (a) Part 3.20(a) 4.18 contains an accurate and complete list, and Seller Buyer has delivered to Buyer (or attached to the Disclosure Schedule as required herein) Seller accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Buyer Contract that involves performance of services or delivery of goods or materials by or to Seller Buyer of an amount or value in excess of twenty-five thousand dollars ($25,000);
(ii) dollarseach Buyer Contract that involves performance of services or delivery of goods or materials to Buyer of an amount or value in excess of twenty-five thousand dollars ($25,000);
(iii) each Seller Buyer Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications Buyer in excess of ten twenty-five thousand dollars ($10,000) dollars25,000);
(iv) each Seller Buyer 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 twenty-five thousand dollars ($25,000) dollars and 25,000);and with a term of less than one year);
(v) each Seller Buyer Contract 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 Buyer Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller Buyer with any other Person;
(vii) each Seller Buyer Contract containing covenants that in any way purport to restrict Business Buyer's business activity or limit the freedom of Seller or Unique Fabrications Buyer to engage in any line of business or to compete with any Person;
(viii) each Seller Buyer Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications Buyer that is currently effective and outstanding;
(x) each Seller Buyer Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications Buyer to be responsible for consequential damages;
(xi) each Seller Buyer Contract for capital expenditures in excess of twenty twenty-five thousand dollars ($20,000) dollars25,000);
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller Buyer 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.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, 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, Unique Fabrications, 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 the Knowledge of Seller, no 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
Appears in 1 contract
Sources: Asset Purchase Agreement (Aberdeen Idaho Mining Co)
Contracts; No Defaults. (a) Part 3.20(aSchedule 2.18(a) contains an accurate and complete list, and Seller has delivered made available to Buyer (or attached to the Disclosure Schedule as required herein) Purchaser accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of each Contract included in the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract Acquired Assets that involves performance of services or delivery of goods or materials by or to Seller either Company of an a remaining amount or value in excess of twenty-five thousand $150,000 other than Contracts for Transferred Projects and Customer Orders;
(ii) each Contract included in the Acquired Assets that involves performance of services or delivery of goods or materials to either Company of a remaining amount or value in excess of $25,000150,000, except with respect to any such Contract that is entered into for the procurement of services, goods or materials for a Transferred Project disclosure will be made on schedule 2.18(a) dollarsonly if the remaining amount or value for such Contract is in excess of $500,000;
(iii) each Seller Contract of either Company relating to the Business that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) dollarsBusiness;
(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 twenty-five thousand ($25,000) dollars and with a term of less than one year)Lease;
(v) each Seller Contract with respect to Intellectual Property Assets that is material to the Business;
(vi) each Contract with any labor union covering the Transferred Employees or other employee representative of a group of employees the Transferred Employees relating to wages, hours hours, and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract binding on either Company after Closing containing covenants that in any way purport to restrict Business either Company's business activity or limit the freedom of Seller or Unique Fabrications the Company to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power a description of the types of powers of attorney of Seller or Unique Fabrications either of the Companies that is are currently effective and outstanding;
(xix) each Seller Contract entered into other than included in the Ordinary Course Acquired Assets for capital expenditures by either Company having a remaining balance in excess of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages$150,000;
(xix) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) with respect to the Business, each written warranty, guaranty and/or guaranty, and or other similar undertaking with respect to contractual performance extended by Seller the Company other than in the Ordinary Course of BusinessBusiness and other than Contracts relating to Transferred Projects or Customer Orders or to completed projects which will be Seller's responsibility after Closing;
(xi) each Contract included in the Acquired Assets providing for commissions payable by either of the Companies in respect of sales by either of the Companies; and
(xivxii) each amendment, supplement supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b)Schedule 2.18(b):
(i) as of the Closing, no shareholder of Seller or member of Unique Fabrications has or may acquire will not have any rights under, and no shareholder of Seller or member of Unique Fabrications has or may will not become subject to any obligation or liability under, any Contract that relates to the Business business of either Company, or any of the Acquired Assets except for the Seller Liabilities and the rights, benefits, liabilities and obligations of any Contract relating thereto and except for the Excluded Assets; and
(ii) to the Knowledge of Seller, no officer, director, agent, employee, consultant, or contractor of either Company who is a Transferred Employee 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 the Business, or (B) assign to the Company any rights to any invention, improvement, or discovery relating to the Business.
(c) Except as set forth in Part 3.20(cSchedule 2.18(c):
(i) each Seller Contract identified or required to be identified in Part 3.20
(aSchedule 2.18(a) 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 against the respective Company that is a party thereto and to Seller's Knowledge, against the other party or parties thereto in accordance with its terms and the Backlog List is a complete and 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 Closing Date;terms; and
(ii) each Seller Contract identified or required to be identified in Part 3.20(aSchedule 2.18(a) and which is being assigned does not require the consent or approval of the other party to or assumed by Buyer is assignable such Contract in connection with consummation of the sale of the Shares 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 AssetsPurchaser.
(d) Except as set forth in Part 3.20(dSchedule 2.18(d), as to the Contracts identified or required to be identified in Schedule 2.18(a):
(i) Seller isto the Knowledge of Seller, and at all times since December 31, 1999, has been, each Company is in compliance with all applicable terms and requirements of each Seller Contract which is being assumed by Buyer except where any noncompliance such failure would not have have, and would not reasonably be expected to have, in the aggregate a Material Adverse EffectEffect on the Business;
(ii) to the Knowledge of Seller, 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 since December 31, 1999, has been, in compliance with all applicable terms and requirements of such Contract;, except where such failure would not have, and would not reasonably be expected to have, in the aggregate a Material Adverse Effect on the Business; and
(iii) neither Company has given to the Knowledge of or, to Seller's Knowledge, no event has occurred or circumstance exists that (with or without received from any other Person any notice or lapse of timeother communication (whether oral or written) constitutes a Breach regarding any actual, alleged, possible, or potential violation or breach of, or give Sellerdefault under, Unique Fabricationsany Contract that would have, or other would reasonably be expected to have, in the aggregate a Material Adverse Effect on the Business.
(e) Except as disclosed in Schedule 2.18(e), there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under any Contracts included in the Acquired Assets with any Person having the contractual or statutory right to declare a default demand or exercise any remedy underrequire such renegotiation and no such Person has made written demand for such renegotiation that would have, or would reasonably be expected to accelerate have, in the maturity or performance ofaggregate a Material Adverse Effect on the Business.
(f) Each Contract listed in Schedule 2.18(a) relating to the sale, design, manufacture, or payment underprovision of products or services by either Company has been entered into in the Ordinary Course of Business of the Company and has been entered into without the commission of any act alone or in concert with any other Person, or to cancelany consideration having been paid or promised, terminate or modify, any Seller Contract that is being assigned to or assumed by Buyer;
(iv) to the Knowledge of Seller, no event has occurred or circumstance exists under or by virtue would be in violation 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; andLaw.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a3.19(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of $15,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars15,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course ordinary course of Business business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) dollars15,000;
(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 twenty-five thousand ($25,000) dollars 15,000 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;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller’s business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course ordinary course of Business business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars15,000;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course ordinary course of Businessbusiness; and
(xivxiii) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. Part 3.19(a) sets forth reasonably complete details concerning such Contracts, including the date, parties to the Contracts, and such Contracts have been made available to Buyer.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications Neither Shareholder has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications neither Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the Business business of Seller or any of the Assets.
(c) Except as set forth in Part 3.20(c3.19(a):
(i) each Seller Contract identified or required to be identified in Part 3.20
(a3.19(a) 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 and the Backlog List is a complete and 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 Closing Dateterms;
(ii) each Seller Contract identified or required to be identified in Part 3.20(a3.19(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(a3.19(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 material adverse affect on the Businessbusiness, assets or condition of Seller or the Business business to be conducted by Buyer with the Assets.
(d) Except as set forth in Part 3.20(d3.19(a):
(i) Seller is, and at all times since December 31, 19992018, has been, in material 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 EffectBuyer;
(ii) to the Knowledge of Seller, 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 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 may contravene, conflict with or result in a Breach breach of, or give Seller, Unique Fabrications, 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;
(iviii) to the Knowledge of the Seller, no 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 (other than Permitted Encumbrances) affecting any of the Assets; and
(iv) Seller has not given to or received from any other Person, at any time since December 31, 2018, any written or, to the Knowledge of the Seller, oral notice or other communication regarding any actual, alleged, possible or potential violation or beach 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 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.
(f) 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 of Seller 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) Exhibit C contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of One hundred dollars ($100.00);
(ii) each Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand One hundred dollars ($25,000) dollars100.00);
(iii) each Seller Contract that was not entered into in the Ordinary Course ordinary course of Business business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten One hundred dollars ($10,000) dollars100.00);
(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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than twenty-five thousand One hundred dollars ($25,000100.00) 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, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Personperson or entity;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Personperson or entity;
(viii) each Seller Contract providing for payments to or by any Person person or entity based on sales, purchases or profits, other than direct payments for goodsgoods or services;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course ordinary course of Business business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand One hundred dollars ($20,000) dollars;100.00);and
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller 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.
(b) Except as set forth in Part 3.20(b), no No shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business business of Seller or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each Seller Each 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 Exhibit C is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Date;
(ii) each Seller terms. Each Contract identified or required to be identified in Part 3.20(a) and which is being assigned to or assumed by Buyer Exhibit C is assignable by Seller to Buyer without the consent of any other Person; and
(iii) to , except where noted. To the Knowledge 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 Exhibit C will upon completion or performance thereof have a Material Adverse Effect material adverse affect on the Businessbusiness, assets or condition of Seller or the Business 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 March 31, 19992003, 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 Buyer. Each other Person person or entity that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, and at all times since December March 31, 19992003, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of Seller, no . No event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes may contravene, conflict with or result in a Breach breach of, or give Seller, Unique Fabrications, Seller or other Person person or entity 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 the Knowledge of Seller, no . No 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 encumbrance affecting any of the Assets; and. Seller has not given to or received from any other person or entity, at any time since March 31, 2003, 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 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 Contracts with any person or entity having the contractual or statutory right to demand or require such renegotiation and no such person or entity has made written demand for such renegotiation.
(f) Each Contract relating to the sale or provision of products or services by Seller 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 in concert with any other person or entity, or any consideration having been paid or promised, that is or would be in violation of any legal requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) contains an accurate and complete list, and Seller has delivered delivered, or disclosed and made available, to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of Twenty Five Thousand Dollars ($25,000);
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand Twenty Five Thousand Dollars ($25,000) dollars);
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten Twenty Five Thousand Dollars ($10,000) dollars25,000);
(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 twenty-five thousand Twenty Five Thousand Dollars ($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, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand Twenty Five Thousand Dollars ($20,000) dollars25,000);
(xii) each Seller Contract not denominated in U.S. dollarsDollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of Business; and;
(xiv) each amendment, supplement and modification (whether oral foreign exchange hedging or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller similar agreement or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Datearrangement;
(iixv) 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 guaranty by Seller to Buyer without of the consent indebtedness of any other Personthird party; 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 Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, 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, Unique Fabrications, 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 the Knowledge of Seller, no 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
Appears in 1 contract
Sources: Asset Purchase Agreement (Cabot Microelectronics Corp)
Contracts; No Defaults. (a) Part 3.20(aSection 3.16(a) of the Disclosure Schedule contains an a complete and accurate and complete listlist in all material respects, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate TOG true, complete and complete correct copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of Five Thousand Dollars ($5,000);
(ii) each Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand Five Thousand Dollars ($25,000) dollars5,000);
(iii) each Seller lease, license, and other Contract that was not entered into in the Ordinary Course of Business and affecting any leasehold or other interest in, any real or personal property that involves expenditures the payment by or receipts of to Seller or Unique Fabrications in excess of ten Twenty Five Thousand Dollars ($10,000) dollars25,000);
(iv) each Seller Contract affecting the ownership of, leasing of, title to, use of or any leasehold licensing agreement or other interest in Contract with respect to Patents, Trademarks, Copyrights, trade secrets or other Intellectual Property Assets, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of 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 twenty-five thousand ($25,000) dollars and with a term of less than one year)Intellectual Property Assets;
(v) each Seller collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employmenteach employment Contract with a SSI Employee;
(vi) each Seller joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by Seller with any other PersonPerson relating at all to the SSI Business;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business the business activity of Seller or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract any plan or commitment or arrangement, written or oral, providing for payments to bonuses, pensions, deferred compensation, retirement payments, profit sharing or by any Person based on sales, purchases or profits, other than direct payments for goodsthe like;
(ix) any indebtedness for borrowed money;
(x) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand Ten Thousand Dollars ($20,000) dollars10,000);
(xii) each Contract whereby any individual using services preformed by Seller Contract not denominated in U.S. dollars;the SSI business purports to release or hold harmless Seller from claims; and
(xiii) each written warranty, guaranty and/or any other similar undertaking with respect to contractual performance extended Contract or commitment not made in the ordinary course of business which calls for the expenditures by Seller other than in the Ordinary Course any twelve (12) month period of Business; and
at least Twenty Five Thousand Dollars (xiv) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing$25,000).
(b) Except as set forth in Part 3.20(b)Section 3.16(b) of the Disclosure Schedule, no shareholder member of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder member or affiliate of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business business of, or any of the Assetsassets owned or used by, Seller.
(c) Except as set forth in Part 3.20(c):
(iSection 3.16(c) of the Disclosure Schedule, to the Knowledge of Seller, each Seller Contract identified or required to be identified in Part 3.20
(aSection 3.16(a) and which is to be assigned to or assumed by Buyer under this Agreement of the Disclosure Schedule is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Assetsterms.
(d) Except as set forth in Part 3.20(d):Section 3.16(d) of the Disclosure Schedule:
(i) Seller is, and at all times since December 31, 1999, has been, is in compliance in all material respects with all applicable the terms and requirements of each Contract under which Seller Contract has or had any obligation or liability or by which Seller or any of the assets owned or used by Seller is being assumed by Buyer except where any noncompliance would not have a Material Adverse Effector was bound;
(ii) to the Knowledge of Seller, each other Person person that has or had any obligation or liability under any Contract under which Seller Contract which has or had any rights is being assigned to Buyer is, and at all times since December 31, 1999, has been, in compliance in all material respects with all applicable the terms and requirements of such Contract;; and
(iii) to the Knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes may result in a Breach of, violation or give Seller, Unique Fabrications, 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 the Knowledge of Seller, no event has occurred or circumstance exists under or by virtue breach 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; andContract.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(aSchedule 3.19(a) contains an accurate and complete list, and Seller has the Selling Parties have delivered to Buyer (or attached to the Disclosure Schedule as required herein) Buyers accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller or to Seller M▇▇▇▇▇▇▇▇▇ of an amount or value in excess of twenty-five thousand $5,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller or M▇▇▇▇▇▇▇▇▇ of an amount or value in excess of $25,000) dollars5,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications M▇▇▇▇▇▇▇▇▇ in excess of ten ($10,000) dollars5,000;
(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 twenty-five thousand ($25,000) dollars 5,000 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;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller or M▇▇▇▇▇▇▇▇▇ with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict the Business activity or limit the freedom of Seller or Unique Fabrications M▇▇▇▇▇▇▇▇▇ to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications M▇▇▇▇▇▇▇▇▇ that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications M▇▇▇▇▇▇▇▇▇ to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars5,000;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of Business; and
(xivxiii) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.19(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the date of the Contracts, the amount of the remaining commitment of Seller or M▇▇▇▇▇▇▇▇▇, as applicable, under the Contracts and the location of Seller’s office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.20(bSchedule 3.19(b), no shareholder of Seller or member of Unique Fabrications has or neither Shareholder nor S▇▇▇▇▇ have, and neither may acquire acquire, any rights under, and no shareholder of Seller or member of Unique Fabrications has neither have or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Acquired Assets.
(c) Except as set forth in Part 3.20(cSchedule 3.19(c):
(i) each Seller Contract identified or required to be identified in Part 3.20
(aSchedule 3.19(a) 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 and the Backlog List is a complete and 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 Closing Dateterms;
(ii) each Seller Contract identified or required to be identified in Part 3.20(aSchedule 3.19(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 Sellerthe Selling Parties, no Seller Contract identified or required to be identified in Part 3.20(aSchedule 3.19(a) and which is to be assigned to or assumed by Buyer under this Agreement will could reasonably be expected to have, upon completion or performance thereof have thereof, a Material Adverse Effect on the Business, assets or condition of Seller or the Business to be conducted by Buyer with the AssetsAffect.
(d) Except as set forth in Part 3.20(dSchedule 3.19(d):
(i) Seller is, or M▇▇▇▇▇▇▇▇▇ has been and at all times since December 31, 1999, has been, is in compliance with all applicable terms and requirements of each Seller Contract which that is being assumed by Buyer except where any noncompliance would not have a Material Adverse EffectBuyer;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Contract which that is being assigned to Buyer is, has been and at all times since December 31, 1999, has been, is in full 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 may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, M▇▇▇▇▇▇▇▇▇ or any 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 the Knowledge of Seller, no 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 Acquired Assets; and
(v) None of the Selling Parties have 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 that is being assigned to or assumed by Buyers hereunder.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller or M▇▇▇▇▇▇▇▇▇ 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.
(f) Each Contract relating to the sale, design, manufacture or provision of products or services by Seller or M▇▇▇▇▇▇▇▇▇ has been entered into in the Ordinary Course of Business of Seller and M▇▇▇▇▇▇▇▇▇ 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(aSchedule 4.19(a) contains an accurate and complete list, and Seller has delivered or made available to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of, with respect to the Business:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from each Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars50,000;
(iiiii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) 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 personal property leases and installment and conditional sales property, including any licenses, sublicenses or other agreements having a involving Intellectual Property of an amount or value per item or aggregate payments in excess of less than twenty-five thousand ($25,000) dollars and with a term of less than one year)50,000;
(viii) each Seller Business Contract with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(viiv) each Seller Business Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(viiv) each Seller Business Contract containing covenants that in any way purport to restrict Business Seller's activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ixvi) each power of attorney of Seller or Unique Fabrications granted in connection with the conduct of the Business that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiiivii) each written warranty, or performance guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of Business; and
(xivviii) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Each Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each Seller Contract identified or required to be identified in Part 3.20
(a) and Schedule 4.19(a), which is to be assigned to or assumed by Buyer under this Agreement Agreement: (i) is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Date;
terms; (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 except as noted on Schedule 4.19(a), is assignable by Seller to Buyer without the consent Consent of any other Person; and
and (iii) to the Knowledge of Sellerexcept as noted on Schedule 4.19(a), no Seller Contract identified or required will continue to be identified legal, valid, binding, enforceable, and in Part 3.20(a) full force 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 effect on identical terms following the Business, assets or condition of Seller or the Business to be conducted by Buyer with the Assets.Closing;
(d) Except as set forth in Part 3.20(d):
(ic) Seller is, and at all times since December 31June 1, 1999, has been, in compliance in all material respects with all applicable terms and requirements of each Seller Business Contract which that is being assumed by Buyer except where any noncompliance would not have a Material Adverse Effect;
(ii) to Buyer. To the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Business Contract which that is being assigned to Buyer is, is and at all times since December 31June 1, 1999, has been, been in compliance in all material respects with all applicable terms and requirements of such Business Contract;
(iii) to . To the Knowledge of Seller, and without regard to the consummation of the Contemplated Transactions, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, Seller or other another 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 Business Contract that is being assigned to or assumed by Buyer;
(iv) to . To the Knowledge of Seller, no event has occurred or circumstance exists under or by virtue of any Seller Business Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Assets; and, Licensed Intellectual Property or Shared Know- How. Seller has not given to or received from any other Person, at any time since June 1, 1999, any notice or other communication (whether written or to the Knowledge of Seller, oral) regarding any actual, alleged, possible or potential violation or Breach of, or default under, any Business Contract identified or required to be identified in Schedule 4.19(a) and which is being assigned to or assumed by Buyer.
(d) 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 Business Contracts identified or required to be identified in Schedule 4.19(a) and which are being assigned to or assumed by Buyer 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 at any time since June 1, 1999.
(e) Each Business Contract which is being assigned to or assumed by Buyer relating to the sale, design, manufacture or provision of products or services by Seller has been entered into in the Ordinary Course of Business of Seller.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of fifty thousand dollars ($50,000);
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five fifty thousand dollars ($25,000) dollars50,000);
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten fifty thousand dollars ($10,000) dollars50,000);
(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 twenty-five fifty thousand dollars ($25,000) 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, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty one hundred thousand dollars ($20,000) dollars100,000);
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of Business; and
(xivxiiii) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, 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, Unique Fabrications, 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 the Knowledge of Seller, no 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
Appears in 1 contract
Sources: Asset Purchase Agreement (Aberdeen Idaho Mining Co)
Contracts; No Defaults. (a) Part Schedule 3.20(a) contains an accurate and complete list, and Seller has Company, Suzhou and, with respect to the Franklin Street Property or the Business, E122 , have delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, except as specifically contemplated below, (which Schedule separately indicates and discloses which Contracts relate to the Business or Assets and which Contracts do not relate to the Business or Assets), of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Company Contract that involves performance of services or delivery of goods or materials by or to any Seller of an amount or value in excess of twenty-five thousand $50,000;
(ii) each Company Contract that involves performance of services or delivery of goods or materials to any Seller of an amount or value in excess of $25,000) dollars50,000;
(iii) each Seller Company Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of any Seller or Unique Fabrications in excess of ten ($10,000) dollars50,000;
(iv) each Seller Company 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 twenty-five thousand ($25,000) dollars 50,000 and with a term of less than one year);
(v) each Seller Company Contract 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 Company Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Seller with any other Person;
(vii) each Seller Company Contract containing covenants that in any way purport to restrict Business any Seller’s business activity or limit the freedom of any Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Company Contract with a value in excess of $50,000 providing for the indemnification, hold harmless or defense by any Seller of any Person;
(ix) each Company Contract with a value in excess of $50,000 providing for the nondisclosure or maintenance of confidentiality by any Seller Party with respect to information (proprietary or otherwise) of any Person;
(x) each Company Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ixxi) each power of attorney of any Seller or Unique Fabrications that is currently effective and outstanding;
(xxii) each Seller Company Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Seller or Unique Fabrications to be responsible for consequential damages;
(xixiii) each Seller Company Contract for capital expenditures in excess of twenty thousand ($20,000) dollars50,000;
(xiixiv) each Seller Company Contract not denominated in U.S. dollarsdollars that is valued in excess of $50,000(USD);
(xiiixv) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by any Seller other than in and related to the Ordinary Course of Business; and
(xivxvi) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.20(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, and with respect to Subsections (i) and (ii) above, the amount of the remaining commitment of the respective Seller under the Contracts and the location of the respective Seller’s office where details relating to the Contracts are located. Notwithstanding the foregoing, disclosure with respect to the Retained Business is limited to the information specified in Schedule 3.20(a).
(b) Except as set forth in Part Schedule 3.20(b), no neither Shareholder nor any other shareholder of Seller or member of Unique Fabrications equity owner has or may acquire any rights under, and no neither Shareholder nor any other shareholder of Seller or member of Unique Fabrications equity owner has or may become subject to any obligation or liability under, any Contract that relates to the business of any Seller, the Business or any of the Assets.
(c) Except as set forth in Part Schedule 3.20(c):
(i) each Seller Contract identified or required to be identified in Part 3.20
(aSchedule 3.20(a) 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 and the Backlog List is a complete and 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 Closing Dateterms;
(ii) each Seller Contract identified or required to be identified in Part Schedule 3.20(a) and which is being assigned to or assumed by Buyer is assignable by the Seller that is party to such Contract to Buyer without the consent of any other Person; and
(iii) to the Knowledge of Sellereach Seller Party, no Seller Contract identified or required to be identified in Part Schedule 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 material adverse effect on the Businessbusiness, assets assets, condition (financial or condition otherwise) or prospects of any Seller or the Business business to be conducted by Buyer with the Assets.
(d) Except as set forth in Part Schedule 3.20(d):
(i) each Seller is, and at all times since December 31, 1999, has been, in compliance with all applicable material terms and requirements of each Seller Contract which is being assumed by Buyer except where any noncompliance would not have a Material Adverse EffectBuyer;
(ii) to the Knowledge of Seller, 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 since December 31, 1999, has been, in compliance with all applicable material 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 may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, any 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 the Knowledge of Seller, no 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 AssetsAssets other than the Permitted Encumbrances; and
(v) no Seller has 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 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 any 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.
(f) Each Contract relating to the sale, design, manufacture or provision of products or services by Company or Suzhou has been entered into in the Ordinary Course of Business of Company or Suzhou, as the case may be, 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(aSchedule 2.1(e) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of $10,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars10,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) 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 personal 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 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;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller’s business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;; Table of Contents
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars10,000;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller 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. Schedule 2.1(e) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of Seller under the Contracts and the location of Seller’s office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(con Schedule 3.17(b):
(i) each Seller Contract identified or required to be identified in Part 3.20
(aon Schedule 2.1(e) 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 and the Backlog List is a complete and 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 Closing Dateterms;
(ii) each Seller Contract identified or required to be identified in Part 3.20(aon Schedule 2.1(e) 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(aon Schedule 2.1(e) 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 material adverse affect on the Businessbusiness, assets or condition of Seller or the Business business to be conducted by Buyer with the Assets.
(dc) Except as set forth in Part 3.20(don Schedule 3.17(c):
(i) Seller is, and at all times since December 31January 1, 19992008, 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 EffectBuyer;
(ii) to the Knowledge of Seller, 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 since December 31January 1, 19992008, Table of Contents has been, in full 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 may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, 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 the Knowledge of Seller, no 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, at any time since January 1, 2008, 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 which is being assigned to or assumed by Buyer.
(d) 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 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 of Seller 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) Exhibit 3.17 contains an a complete and accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate true and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Applicable Contract that involves performance of services or delivery of goods or materials by or to Seller the Company of an amount or value in excess of twenty-five thousand $5,000;
(ii) 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 $25,000) dollars5,000;
(iii) each Seller Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications the Company in excess of ten ($10,000) dollars5,000;
(iv) each Seller 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 of, or any leasehold or other interest in 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 twenty-five thousand ($25,000) dollars 5,000 and with a term terms of less than one year);
(v) each Seller licensing agreement or other Applicable Contract with respect to 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 employmentemployees;
(vivii) each Seller joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by Seller the Company with any other Person;
(viiviii) each Seller Applicable Contract containing covenants that in any way purport to restrict Business the business activity of the Company or limit the freedom of Seller or Unique Fabrications the Company to engage in any line of business or to compete with any Person;
(viiiix) each Seller Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(xxi) each Seller Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications the Company to be responsible for consequential damages;
(xixii) each Seller Applicable Contract for capital expenditures in excess of twenty thousand ($20,000) dollars;
(xii) each Seller Contract not denominated in U.S. dollars10,000.00;
(xiii) each written warranty, guaranty and/or guaranty, and or other similar undertaking with respect to contractual performance extended by Seller the Company other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, 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, Unique Fabrications, 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 the Knowledge of Seller, no 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
Appears in 1 contract
Contracts; No Defaults. (a) 3.18.1 Part 3.20(a) 3.18.1 contains an accurate and complete listlist as of the date of this Agreement, and Seller has delivered made available to Buyer (or attached to the Disclosure Schedule as required herein) upon Buyer's request accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of $10,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars10,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) 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 personal 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 10,000 and with a term of less than one year);
(v) each Seller Contract with any labor union of an amount or other employee representative value in excess of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Seller Contract $10,000 (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any Person other Personthan an employee of Seller;
(viivi) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viiivii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goodsgoods or services;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(xviii) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xiix) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars10,000;
(xiix) each Seller Contract not denominated in U.S. dollars;
(xiiixi) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of Business; and
(xivxii) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set 3.18.2 Part 3.18.2 sets forth in Part 3.20(b)reasonably complete details concerning such Seller Contracts, no shareholder including the parties to the Contracts, the amount of the remaining commitment of Seller under the Contracts, if applicable, as of May 19, 2004.
3.18.3 Equityholder has not or member of Unique Fabrications has or may will not acquire any rights under, and no shareholder of Seller or member of Unique Fabrications Equityholder has or may not and will not become subject to any obligation or liability under, any Contract that relates to the Business business of Seller or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each Seller 3.18.4 Each Contract identified or required to be identified in Part 3.20
(a) 3.18.1 and which is to be assigned to or assumed by Buyer under this Agreement an Assumed Contract is in full force and effect and to the Knowledge of Seller is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 terms. Except to the Closing Date;
(ii) each Seller Contract identified or required to be extent identified in Part 3.20(a) and which is being assigned to or assumed by Buyer 3.2.3, each Assumed Contract 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) 3.18.5 Seller is, and at all times since December 31, 1999the incorporation of Seller, has been, in material compliance with all applicable terms and requirements of each Seller Assumed Contract which is being assumed by Buyer except where any noncompliance would not have a Material Adverse Effect;and, with respect thereto:
(iii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Assumed Contract which is being assigned to Buyer is, and at all times since December 31, 1999, has been, not currently in compliance with all applicable terms and requirements Breach of such Contract;
(iiiii) to the Knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes may result in a Breach of, or give Seller, Unique Fabrications, 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 BuyerAssumed Contract;
(iviii) to the Knowledge of Seller, no 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
(iv) Seller has not given to or received from any other Person, at any time since its incorporation, any notice or other communication (whether oral or written) regarding any actual, alleged, possible or potential violation or Breach of, or default under any Assumed Contract which notice has not been withdrawn or such actual, alleged, possible or potential violation or Breach has not been fully cured by Seller.
3.18.6 There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller under current 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.
3.18.7 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 of Seller 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 material Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a3.20
(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves future performance of services or delivery of goods or materials by Seller of an amount or value in excess of $10,000;
(ii) each Seller Contract that involves future performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars10,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves future expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) 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 personal 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 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;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars25,000;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of Business; and
(xivxiii) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Dateterms;
(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.
(dc) Except as set forth in Part 3.20(d3.20(c):
(i) Seller is, and at all times since December 31, 1999its inception, 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 EffectBuyer;
(ii) to the Knowledge of To Seller's knowledge, 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 since December 31, 1999during the term of such Seller Contract, has been, in full 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 may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, 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 the Knowledge of Seller, no 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, at any time since its inception, 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 which is being assigned to or assumed by Buyer.
(d) 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 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 of Seller 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) Exhibit C contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of One hundred dollars ($100.00);
(ii) each Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand One hundred dollars ($25,000) dollars100.00);
(iii) each Seller Contract that was not entered into in the Ordinary Course ordinary course of Business business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten One hundred dollars ($10,000) dollars100.00);
(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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than twenty-five thousand One hundred dollars ($25,000100.00) 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, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Personperson or entity;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller's business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Personperson or entity;
(viii) each Seller Contract providing for payments to or by any Person person or entity based on sales, purchases or profits, other than direct payments for goodsgoods or services;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course ordinary course of Business business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand One hundred dollars ($20,000) dollars;100.00);and
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller 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.
(b) Except as set forth in Part 3.20(b), no No shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business business of Seller or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each Seller Each 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 Exhibit C is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Date;
(ii) each Seller terms. Each Contract identified or required to be identified in Part 3.20(a) and which is being assigned to or assumed by Buyer Exhibit C is assignable by Seller to Buyer without the consent of any other Person; and
(iii) to . To the Knowledge 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 Exhibit C will upon completion or performance thereof have a Material Adverse Effect material adverse affect on the Businessbusiness, assets or condition of Seller or the Business 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 31June 30, 19992002, 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 Buyer. Each other Person person or entity that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, and at all times since December 31June 30, 19992002, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of Seller, no . No event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes may contravene, conflict with or result in a Breach breach of, or give Seller, Unique Fabrications, Seller or other Person person or entity 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 the Knowledge of Seller, no . No 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 encumbrance affecting any of the Assets; and. Seller has not given to or received from any other person or entity, at any time since June 30, 2002, 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 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 Contracts with any person or entity having the contractual or statutory right to demand or require such renegotiation and no such person or entity has made written demand for such renegotiation.
(f) Each Contract relating to the sale or provision of products or services by Seller 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 in concert with any other person or entity, or any consideration having been paid or promised, that is or would be in violation of any legal requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(aItem 3.14(a) of the Vanguard Disclosure Schedule contains an accurate and complete list, and Seller has the Vanguard Stockholders have delivered to Buyer (or attached to the Disclosure Schedule as required herein) TACT accurate and complete copies, of:
(i) backlog lists each Applicable Contract that involves the payment of Seller and Unique Fabricationsmoney, listing all Seller Contracts that are orders from Business customers on backlog (performance of services or delivery of goods or materials by customer name, order number, order date, model, selling price, cost, and gross profit) as one or more Vanguard Companies of the date hereof, updated as an amount or value in excess of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule$50,000;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Applicable Contract that involves performance of services or delivery of goods or materials by to one or to Seller more Vanguard Companies of an amount or value in excess of twenty-five thousand ($25,000) dollars50,000;
(iii) each Seller Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller one or Unique Fabrications more Vanguard Companies in excess of ten ($10,000) dollars50,000;
(iv) each Seller Applicable Contract affecting the ownership of, leasing of, title to, use of 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 twenty-five thousand ($25,000) dollars 50,000 and with a term of less than one year);
(v) each Seller Applicable Contract 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 Applicable Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller any one or more Vanguard Companies with any other Person;
(vii) each Seller Applicable Contract containing covenants that in any way purport to restrict Business any Vanguard Company's business activity or limit the freedom of Seller or Unique Fabrications any Vanguard Company to engage in any line of business or to compete with any Person;
(viii) each Seller Applicable Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications any Vanguard Company that is currently effective and outstanding;
(x) each Seller Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller any one or Unique Fabrications more Vanguard Companies to be responsible for consequential damages;
(xi) each Seller Applicable Contract for capital expenditures in excess of twenty thousand ($20,000) dollars50,000;
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller any one or more Vanguard Companies other than in the Ordinary Course of Business;
(xiii) 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 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 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 Section 280G of the Code;
(xxi) each Applicable Contract that restricts any 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
(xivxxiii) 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 Part 3.20(b)Item 3.14(b) of the Vanguard Disclosure Schedule, no shareholder Vanguard Stockholder (and no Related Person of Seller or member of Unique Fabrications any Vanguard Stockholder) has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications Vanguard Stockholder has or may become subject to any obligation or liability under, any Contract that relates to the Business business or any of the Assetsproperties 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 (ii) assign to any Vanguard Company or to any other Person any rights to any invention, improvement or discovery.
(d) Except as set forth in Part 3.20(c):
(iItem 3.14(d) of the Vanguard Disclosure Schedule, each Seller Contract identified or required to be identified in Part 3.20
(aSection 3.14(a) and which is to be assigned to or assumed by Buyer under this Agreement of the Vanguard Disclosure Schedule is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Date;terms.
(iie) each Seller Contract identified Except as set forth in Item 3.14(e)of the Vanguard Disclosure Schedule, and other than with regard to any Applicable Contract, the termination of which would not, individually 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 Selleraggregate, 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):Vanguard Companies:
(i) Seller is, and at all times since December 31, 1999, has been, Each Vanguard Company is in compliance with all applicable terms and requirements of each Seller 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 being assumed by Buyer except where any noncompliance would not have a Material Adverse Effector was bound;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability Liability under any Seller Contract under which any Vanguard Company has or had any rights is being assigned to Buyer is, 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 timetime or both) constitutes may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, 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 Seller Contract that is being assigned to or assumed by Buyer;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.
(g) Each Contract relating to the Knowledge provision of Seller, no event services to which any Vanguard Company is a party has occurred or circumstance exists under or by virtue been entered into in the Ordinary Course of Business of such Vanguard Company and has been entered into without the commission of any Seller Contract act alone or in concert with any other Person, or any consideration having been paid or promised, that (with is or without notice or lapse of time) would cause the creation be in violation of any Encumbrance affecting any of the Assets; andLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) The Seller Disclosure Letter contains an accurate and complete list, and Seller has delivered Sellers have made available to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by any Seller, which relates solely to the Business or to Seller the Assets of an amount or value in excess of twenty-five thousand $10,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to any Seller, which relates solely to the Business or the Assets of an amount or value in excess of $25,000) dollars10,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course ordinary course of Business business consistent with past practices and that relates solely to the Business or the Assets and involves expenditures or receipts of any Seller or Unique Fabrications in excess of ten ($10,000) 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 relating solely to the Business (except personal 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 10,000 and with a term of less than one year);
(v) each Seller Contract relating solely to the Business 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) involving a sharing of profits, losses, costs or liabilities by any Seller with any other Person;
(vii) each Seller Contract containing covenants that in restrict any way purport to restrict Business Seller’s business activity or limit the freedom of such Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of any Seller relating solely to the Business or Unique Fabrications the Assets that is currently effective and outstanding;
(x) each Seller Contract entered into other than for capital expenditures relating solely to the Business or the Assets in the Ordinary Course excess of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages$10,000;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars;
(xii) each Seller Contract relating solely to the Business or the Assets not denominated in U.S. dollars;
(xiiixii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by any Seller with respect to the Business other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practices; and
(xivxiii) each amendment, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of the Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):Disclosure Letter:
(i) each Seller Assigned 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Date;terms; and
(ii) each Seller Assigned 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 the applicable 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.
(dc) Except as set forth in Part 3.20(d):the Seller Disclosure Letter:
(i) Each Seller is, and at all times since December 31, 1999, has been, is in material 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 EffectAssigned Contract;
(ii) to the Knowledge of SellerSellers’ Knowledge, each other Person that has or had any obligation or liability under any Seller Assigned Contract which is being assigned to Buyer is, and at all times since December 31, 1999, has been, in compliance with all applicable terms and requirements of such Assigned Contract;
(iii) to the Knowledge of SellerSellers’ Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) constitutes would reasonably be expected to contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, any 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 Assigned Contract that is being assigned to or assumed by Buyer;; and
(iv) to the Knowledge of SellerSellers’ Knowledge, no event has occurred or circumstance exists under or by virtue of any Seller Assigned Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance (other than a Permitted Encumbrance) affecting any of the Assets; and.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete (as is in its possession) copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of $250,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars500,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) dollars50,000;
(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 twenty-five thousand ($25,000) 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, hours and other conditions of employment;
(vi) each Seller Contract with any independent third party relating to the delivery or administration of any employee benefits to Seller’s employees;
(vii) each Contract which is in respect of the employment, compensation or indemnification of a director or executive officer of Seller;
(viii) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(viiix) each Seller Contract containing covenants that in any way purport to restrict Business Seller’s business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viiix) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ixxi) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(xxii) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xixiii) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars100,000;
(xiixiv) each Seller Contract not denominated in U.S. dollarsdollars in excess of $100,000;
(xiiixv) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of Business;
(xvi) each Contract that provides for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(xvii) each Contract which involves, as parties thereto, Seller, on the one hand, and any of the directors, officers or other Affiliates of Seller or any Person that owns or controls more than ten percent of any class of capital stock or other equity interest of Seller and each such Person’s respective directors, officers or other Affiliates, on the other hand;
(xviii) each Contract which establishes or relates to a joint venture or partnership involving Seller;
(xix) each Contract which constitutes a mortgage, indenture, note, installment obligation or other instrument relating to the borrowing of money or under which it has imposed a security interest on any of the Purchased Assets;
(xx) each Contract which constitutes a guarantee of any obligation of another Person;
(xxi) each other Contract that is material to the Purchased Assets or the operation of the Business and not previously disclosed pursuant to this Section 3.20(a);
(xxii) each Real Property Lease (each of which are deemed to constitute a Seller Contract for the purposes of this Agreement); and
(xivxxiii) each material amendment, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) each 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, 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, Unique Fabrications, 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 the Knowledge of Seller, no 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
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete (as is in its possession) copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of $150,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five thousand ($25,000) dollars350,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten ($10,000) dollars50,000;
(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 twenty-five thousand ($25,000) 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, hours and other conditions of employment;
(vi) each Seller Contract with any independent third party relating to the delivery or administration of any employee benefits to Seller’s employees;
(vii) each Contract which is in respect of the employment, compensation or indemnification of a member, manager or executive officer of Seller;
(viii) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(viiix) each Seller Contract containing covenants that in any way purport to restrict Business Seller’s business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viiix) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ixxi) each Contract which is in respect of the Intellectual Property Assets of Seller;
(xii) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(xxiii) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xixiv) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars100,000;
(xiixv) each Seller Contract not denominated in U.S. dollarsdollars in excess of $100,000;
(xiiixvi) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the Ordinary Course of Business;
(xvii) each Contract that provides for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(xviii) each Contract which involves, as parties thereto, Seller, on the one hand, and any of the directors, officers or other Affiliates of Seller or any Person that owns or controls more than ten percent of any class of capital stock or other equity interest of Seller and each such Person’s respective directors, officers or other Affiliates, on the other hand;
(xix) each Contract which establishes or relates to a joint venture or partnership involving Seller;
(xx) each Contract which constitutes a mortgage, indenture, note, installment obligation or other instrument relating to the borrowing of money or under which it has imposed a security interest on any of the Purchased Assets;
(xxi) each Contract which constitutes a guarantee of any obligation of another Person;
(xxii) each other Contract that is material to the Purchased Assets or the operation of the Business and not previously disclosed pursuant to this Section 3.20(a);
(xxiii) each Real Property Lease (each of which are deemed to constitute a Seller Contract for the purposes of this Agreement); and
(xivxxiv) each material amendment, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications Member has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications Member has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Purchased Assets.
(c) Except as set forth in Part 3.20(c):
(i) each Seller Assumed 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 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing Dateterms;
(ii) each Seller Assumed 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 Assumed 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 AssetsEffect.
(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 EffectAssumed Contract;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Assumed Contract which is being assigned to Buyer is, and at all times since December 31, 1999, has been, in full 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 after the expiration of timeany applicable cure period) constitutes may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, 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 BuyerAssumed Contract;
(iv) to the Knowledge of Seller, no event has occurred or circumstance exists under or by virtue of any Seller Contract that (with or without notice or lapse after the expiration of timeany applicable cure period ) would cause the creation of any Encumbrance affecting any of the Purchased Assets; and
(v) Seller has not 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 Assumed Contract.
(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 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.
(f) 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 of Seller 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(a) Schedule 3.13 contains an a complete and accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, list of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to Seller Target of an amount or value in excess of twenty-five thousand $10,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to Target of an amount or value in excess of $25,000) dollars10,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications Target in excess of ten ($10,000) dollars;
(iv) each Seller lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of of, or any leasehold or other interest in 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 twenty-five thousand ($25,000) dollars 10,000 and with a term terms of less than one year);
(v) each Seller 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 Target Intellectual Property;
(vi) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employmentemployees;
(vivii) each Seller joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by Seller Target with any other Person;
(viiviii) each Seller Contract containing covenants that in any way purport to restrict Business the business activity of Target or any Affiliate of Target or limit the freedom of Seller Target or Unique Fabrications any Affiliate of Target to engage in any line of business or to compete with any Person;
(viiiix) each Seller Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(xxi) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications Target to be responsible for consequential damages;
(xixii) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars;
(xii) each Seller Contract not denominated in U.S. dollars10,000;
(xiii) each written warranty, guaranty and/or guaranty, or other similar undertaking with respect to contractual performance extended by Seller Target other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement supplement, and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.13 sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts and the amount of the remaining commitment of the Target under the Contracts.
(b) Except as set forth in Part 3.20(b)Schedule 3.13:
(i) no Manager, no shareholder of Seller officer or member who holds in excess of Unique Fabrications five percent (5%) of the equity of the Target (and no Related Person of the foregoing) has or nor may it acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business business of, or any of the Assetsassets owned or used by, Target; and
(ii) other than agreements with Social Bounce, LLC, no Manager, officer, member, agent, employee, consultant, or contractor of Target is bound by any Contract that purports to limit the ability of such Manager, officer, member, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of Target, or (B) assign to Target or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.20(c):
(i) Schedule 3.13, each 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 Schedule 3.13 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Assetsterms.
(d) Except as set forth in Part 3.20(d):Schedule 3.13:
(i) Seller Target is, and at all times since December 31, 1999, inception has been, in full compliance with all applicable terms and requirements of each Seller Contract under which Target has or had any obligation or liability or by which Target or any of the assets owned or used by such Target is being assumed by Buyer except where any noncompliance would not have a Material Adverse Effector was bound;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Contract under which is being assigned to Buyer Target has or had any rights is, and at all times since December 31, 1999, inception has been, in full 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 may contravene, conflict with, or result in a Breach violation or breach of, or give Seller, Unique Fabrications, Target or any 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 terminate, or modify, any Seller Contract that is being assigned to or assumed by Buyer;Contract; and
(iv) Target has not given to the Knowledge of Selleror received from any other Person, no event has occurred or circumstance exists under or by virtue of at any Seller Contract that (with or without time since inception, any notice or lapse of timeother communication (whether oral or written) would cause the creation of regarding any Encumbrance affecting actual, alleged, possible, or potential violation or breach of, or default under, any of the Assets; andContract.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Target under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.20(aSection 4.16(a) of the Company Disclosure Schedule contains an a complete and accurate and complete list, and Seller the Company has delivered or made available to Buyer (or attached to the Disclosure Schedule as required herein) accurate Ocean true, correct and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to Seller the Company of an amount or value in excess of twenty-five thousand ($25,000;
(ii) dollarseach Contract that involves performance of services or delivery of goods or materials to the Company of an amount or value in excess of $25,000;
(iii) each Seller lease, license and other Contract that was not entered into in the Ordinary Course of Business and that involves expenditures affecting any leasehold or receipts of Seller other interest in, any real or Unique Fabrications in excess of ten ($10,000) dollarspersonal property;
(iv) each Seller licensing Contract affecting the ownership ofwith respect to Company Patents, leasing ofCompany Marks, title toCompany Copyrights, use of or any leasehold Company trade secrets or other interest in Company Intellectual Property Assets, including Contracts with current or former employees, consultants or contractors regarding the appropriation or the non-disclosure of 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 twenty-five thousand ($25,000) dollars and with a term of less than one year)Intellectual Property Assets;
(v) each Seller collective bargaining Contract to or with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employmentemployees;
(vi) each Seller joint venture, partnership and other Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller the Company with any other PersonPerson or requiring the Company to make a capital contribution;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business the business activity of the Company or limit the freedom of Seller or Unique Fabrications the Company to engage in any line of business or to compete with any Person or hire any Person;
(viii) each Seller employment Contract providing for payments to compensation, severance or a fixed term of employment in respect of services performed by any Person based on sales, purchases or profits, other than direct payments for goodsemployees of the Company and each consulting Contract with an independent contractor;
(ix) each stock option, purchase or benefit plan for employees;
(x) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars25,000;
(xii) each Seller Contract not denominated in U.S. dollarswith an officer or director of the Company or with any Affiliate of any of the foregoing;
(xiii) each written warrantyContract under which any money has been or may be borrowed or loaned or any note, guaranty and/or bond, factoring agreement, indenture or other similar undertaking with respect to contractual performance extended by Seller evidence of indebtedness has been issued or assumed (other than those under which there remain no ongoing obligations of the Company ), and each guaranty (including “take-or-pay” and “keepwell” agreements) 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 ordinary course of Business; andbusiness);
(xiv) each amendment, supplement and modification (whether oral Contract containing restrictions with respect to the payment of dividends or written) other distributions in respect of any the Company’s capital stock;
(xv) each other Contract 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 foregoingCompany without penalty) or requiring payments by the Company of more than $25,000 per year; and
(xvi) each standard form of Contract pursuant to which the Company provides services to clients.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business or any Section 4.16(b) of the Assets.
(c) Except as set forth in Part 3.20(c):
(i) Company Disclosure Schedule, each Seller Contract identified or required to be identified in Part 3.20
(aSection 4.16(a) and which is to be assigned to or assumed by Buyer under this Agreement of the Company Disclosure Schedule is in full force and effect and is valid and enforceable against the Company and, to the knowledge of the Company, against the other parties thereto in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Assetsterms.
(dc) Except as set forth in Part 3.20(d):Section 4.16(c) of the Company Disclosure Schedule:
(i) Seller is, and at all times since December 31, 1999, has been, the Company is in full compliance with all applicable terms and requirements of each Seller Contract under which the Company has any obligation or liability or by which the Company or any of the properties or assets owned, held or used by the Company is being assumed by Buyer bound, except where any for such noncompliance that would not have reasonably be likely to result in a Material Adverse Effect;
(ii) to the Knowledge knowledge of Sellerthe Company, each other Person that has or had any obligation or liability under any Seller Contract under which the Company has any rights is being assigned to Buyer is, and at all times since December 31, 1999, has been, in compliance in all material respects with all applicable terms and requirements of such Contract;; and
(iii) to the Knowledge of Seller, no event has occurred or or, to the knowledge of the Company, circumstance exists that (with or without notice or lapse of timetime or both) constitutes may result in a Breach of, violation or give Seller, Unique Fabrications, 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 the Knowledge of Seller, no event has occurred or circumstance exists under or by virtue breach of any Seller Contract that (with Contract, which violation or without notice or lapse of time) breach would cause the creation of any Encumbrance affecting any of the Assets; andbe reasonably likely to result in a Material Adverse Effect.
Appears in 1 contract
Sources: Securities Exchange Agreement (Ocean West Holding Corp)
Contracts; No Defaults. (a) Part 3.20(a) Schedule 3.13 contains an a complete and accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, list of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to Seller Target of an amount or value in excess of twenty-five thousand $10,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to Target of an amount or value in excess of $25,000) dollars10,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications Target in excess of ten ($10,000) dollars;
(iv) each Seller lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of of, or any leasehold or other interest in 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 twenty-five thousand ($25,000) dollars 10,000 and with a term terms of less than one year);
(v) each Seller 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 Assets;
(vi) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees relating to wages, hours and other conditions of employmentemployees;
(vivii) each Seller joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by Seller Target with any other Person;
(viiviii) each Seller Contract containing covenants that in any way purport to restrict Business the business activity of Target or any Affiliate of Target or limit the freedom of Seller Target or Unique Fabrications any Affiliate of Target to engage in any line of business or to compete with any Person;
(viiiix) each Seller Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(xxi) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications Target to be responsible for consequential damages;
(xixii) each Seller Contract for capital expenditures in excess of twenty thousand ($20,000) dollars;
(xii) each Seller Contract not denominated in U.S. dollars10,000;
(xiii) each written warranty, guaranty and/or guaranty, or other similar undertaking with respect to contractual performance extended by Seller Target other than in the Ordinary Course of Business; and
and (xiv) each amendment, supplement supplement, and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.13 sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts and the amount of the remaining commitment of the Target under the Contracts.
(b) Except as set forth in Part 3.20(b)Schedule 3.13:
(i) no officer, director or shareholder who was in excess of five percent (5%) of the capital stock of the Target (and no shareholder Related Person of Seller or member of Unique Fabrications the foregoing) has or nor may it acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the Business business of, or any of the Assetsassets owned or used by, Target; and
(ii) no officer, director, agent, employee, consultant, or contractor of Target 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 the business of Target, or (B) assign to Target or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.20(c):
(i) Schedule 3.13, each 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 Schedule 3.13 is in full force and effect and is valid and enforceable in accordance with its terms and the Backlog List is a complete and 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 Closing 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 Assetsterms.
(d) Except as set forth in Part 3.20(d):Schedule 3.13:
(i) Seller Target is, and at all times since December 31, 1999, inception has been, in full compliance with all applicable terms and requirements of each Seller Contract under which Target has or had any obligation or liability or by which Target or any of the assets owned or used by such Target is being assumed by Buyer except where any noncompliance would not have a Material Adverse Effector was bound;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Contract under which is being assigned to Buyer Target has or had any rights is, and at all times since December 31, 1999, inception has been, in full 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 may contravene, conflict with, or result in a Breach violation or breach of, or give Seller, Unique Fabrications, Target or any 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 terminate, or modify, any Seller Contract that is being assigned to or assumed by Buyer;Contract; and
(iv) Target has not given to the Knowledge of Selleror received from any other Person, no event has occurred or circumstance exists under or by virtue of at any Seller Contract that (with or without time since inception, any notice or lapse of timeother communication (whether oral or written) would cause the creation of regarding any Encumbrance affecting actual, alleged, possible, or potential violation or breach of, or default under, any of the Assets; andContract.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Target under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
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Contracts; No Defaults. (a) Part 3.20(a3.19
(a) contains an accurate and complete list, and Seller has delivered to Buyer (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by Seller of an amount or value in excess of one thousand dollars ($1,000);
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to Seller of an amount or value in excess of twenty-five one thousand dollars ($25,000) dollars1,000);
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten one thousand dollars ($10,000) dollars1,000);
(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 twenty-five one thousand dollars ($25,0001,000) 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, hours and other terms or conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict Business Seller’s business activity or limit the freedom of Seller or Unique Fabrications to engage in any line of business or to compete with any Person;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty one thousand dollars ($20,000) dollars1,000);
(xii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller 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.
(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of Seller under the Contracts and the location of Seller’s office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.20(b), no shareholder of Seller or member of Unique Fabrications 3.19
(b) the Shareholder has not or may not acquire any rights under, and no shareholder of Seller or member of Unique Fabrications has not or may not become subject to any obligation or liability under, any Contract that relates to the Business business of Seller or any of the Assets.
(c) Except as set forth in Part 3.20(c3.19(c):
(i) each Seller Contract identified or required to be identified in Part 3.203.19
(a) 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 and the Backlog List is a complete and 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 Closing Dateterms;
(ii) each Seller Contract identified or required to be identified in Part 3.20(a3.19
(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(a3.19
(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 material adverse affect on the Businessbusiness, assets or condition of Seller or the Business business to be conducted by Buyer with the Assets.
(d) Except as set forth in Part 3.20(d):3.19
(i) Seller is, and at all times since December 31January 1, 19992004, 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 EffectBuyer;
(ii) to the Knowledge of Seller, 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 since December 31January 1, 19992004, has been, in full 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 may contravene, conflict with or result in a Breach of, or give Seller, Unique Fabrications, 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 the Knowledge of Seller, no 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, at any time since January 1, 2004, 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 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 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.
(f) 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 of Seller 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.
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Contracts; No Defaults. (a) Part Section 3.20(a) of the Disclosure Schedule contains an accurate and complete list, and Seller has delivered Sellers have made available to Buyer (or attached to the Disclosure Schedule as required herein) Buyers accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Seller Contract that involves performance of services or delivery of goods or materials by or to a Seller of an amount or value in excess of twenty-five thousand One Hundred Thousand Dollars ($25,000100,000) dollarsin any twelve (12) month period;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to a Seller of an amount or value in excess of One Hundred Thousand Dollars ($100,000) in any twelve (12) month period;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of Seller or Unique Fabrications in excess of ten One Hundred Thousand Dollars ($10,000100,000) dollarsin any twelve (12) month period;
(iv) each Real Property Lease and Seller Contract affecting the ownership of, leasing of, title to, use of, license of or any leasehold or other interest in any real or personal property Tangible Personal Property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than twenty-five thousand One Hundred Thousand Dollars ($25,000) dollars and with a term of less than one year100,000);
(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;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(vii) each Seller Contract containing covenants that in any way purport to restrict the Business activity or limit the freedom of a Seller or Unique Fabrications to engage in any line of business or to compete with any Person, except for non-disclosure, proprietary information or confidentiality agreements with Third Parties entered into in the Ordinary Course of Business and which have be previously made available to Buyers;
(viii) each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of a Seller or Unique Fabrications that is currently effective and outstandingoutstanding with respect to the Business;
(x) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by a Seller or Unique Fabrications to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of twenty thousand One Hundred Thousand Dollars ($20,000) dollars100,000);
(xii) each Seller Government Contract not denominated in U.S. dollarsor Bid;
(xiii) each Seller Contract pursuant to which a third party has licensed to a Seller any Intellectual Property that is material to the operation of the Business, other than licenses for “shrink wrap” or other commercially available software or other technology;
(xiv) each Seller Contract pursuant to which a Seller has granted a third party any rights or licenses to any material Intellectual Property of such Seller, other than non-exclusive licenses granted in the Ordinary Course of Business;
(xv) each Seller Contract pursuant to which a Seller has engaged, or entered into an engagements with any third party to develop or create any software or other technology or Intellectual Property rights for a Seller;
(xvi) each Seller Contract that is classified or that involves the use of classified Assets; and
(xvii) each written warranty, warranty and guaranty and/or other similar undertaking with respect to contractual performance extended by a Seller 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.
(b) Except as set forth in Part Section 3.20(b)) of the Disclosure Schedule, no shareholder of Seller or member of Unique Fabrications neither Shareholder has or may acquire any rights under, and no shareholder of Seller or member of Unique Fabrications neither Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the Business or any of the Assets.
(c) Except as set forth in Part Section 3.20(c):
(i) of the Disclosure Schedule, each Seller Contract identified or required to be identified in Part 3.20
(aSection 3.20(a) and which is to be assigned to or assumed by Buyer under this Agreement of the Disclosure Schedule comprising the Assumed Contracts is in full force and effect and is a valid and binding obligation of the Seller party thereto and, to Sellers’ Knowledge, a valid and binding obligation of the other party or parties thereto enforceable against such party or parties in accordance with its terms and the Backlog List is a complete and 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 subject to the Closing Date;
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to tor affecting creditors’ rights generally, general equitable principles (ii) each Seller Contract identified whether considered in a proceeding in equity 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 Assetsat law).
(d) Except as set forth in Part Section 3.20(d):) of the Disclosure Schedule:
(i) each Seller is, and at all times since December 31June 1, 1999, 2007 has been, in material compliance with all applicable terms and requirements of each Seller Contract which is being assumed by Buyer except where any noncompliance would not have and to which it is a Material Adverse Effectparty;
(ii) to the Knowledge of SellerSellers’ Knowledge, 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 since December 31June 1, 1999, 2007 has been, in material compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of SellerSellers’ Knowledge, no event has occurred or circumstance exists that (with or without notice or the lapse of time) constitutes may contravene, conflict with or result in a material Breach of, or give Seller, Unique Fabrications, Sellers or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, under or to cancel, terminate or modify, any Seller Contract that is being assigned to or assumed by Buyer;comprising an Assumed Contract; and
(iv) to the Knowledge of SellerSellers’ Knowledge, no event has occurred or circumstance exists under or by virtue of any Seller Contract that (with or without notice or the lapse of time) would cause the creation of any Encumbrance affecting any of the Assets; and, except Permitted Encumbrances.
(e) Except as set forth in Section 3.20(e) of the Disclosure Schedule, no Seller has received written notice of any default by it under any Seller Contract comprising the Assumed Contracts, except for defaults that are not material.
(f) There are no existing renegotiations of or, to Sellers’ Knowledge, attempts to renegotiate, any material amounts paid or payable to a Seller under current or completed Seller Contract comprising the Assumed 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.
(g) Except as set forth in Section 3.20(g) of the Disclosure Schedule, each Seller Contract comprising the Assumed Contracts relating to the sale, design, manufacture or provision of products or services by a Seller 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.
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