Material Contracts; Defaults. ANCX represents and warrants to UBSH that: As of the date hereof, neither it nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (A) that is a “material contract” required to be filed as an exhibit pursuant to Item 601(b)(10) of the SEC’s Regulation S-K that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this Agreement, (B) that prohibits or restricts the conduct of business by it or any of its Subsidiaries or any of its personnel in any geographic area or its or their ability to compete in any line of business, (C) with respect to employment of an officer, director or consultant, including any employment, severance, termination, consulting or retirement agreement, (D) that would be terminable other than by it or any of its Subsidiaries or under which a material payment obligation would arise or be accelerated, in each case as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), (E) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, (F) pursuant to which ANCX or one of its Subsidiaries leases real property to or from any other Person, (G) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $400,000 per year, (H) involves Intellectual Property (other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licenses) that is material to its business or the business of any of its Subsidiaries, (I) relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business consistent with past practice), (J) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant to which ANCX or one of its Subsidiaries has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, or (M) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (A) through (L) above (any such being referred to as an “ANCX Material Contract”). With respect to each ANCX Material Contract: (W) the contract is in full force and effect, (X) neither it nor any of its Subsidiaries is in Default thereunder, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Default, (Y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 to the date hereof and (Z) no other party to any such contract is, to its Knowledge, in Default in any material respect.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Union Bankshares Corp), Agreement and Plan of Reorganization (Access National Corp)
Material Contracts; Defaults. ANCX represents Except as set forth in Section 3.3(j) of its Disclosure Letter (which may incorporate the contracts and warrants instruments reflected as exhibits on the exhibit list included in its latest annual report on Form 10-K filed prior to UBSH that: As the date of this Agreement), as of the date hereof, neither it nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (Ai) that is a “material contract” required to be filed as an exhibit pursuant to Item 601(b)(10) of the SEC’s Regulation S-K that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this AgreementK, (Bii) that prohibits or restricts the conduct of business by it or any of its Subsidiaries or any of its personnel in any geographic area or its or their ability to compete in any line of business, (Ciii) with respect to employment of an officer, director or consultant, including any employment, severance, termination, consulting or retirement agreement, (Div) that would be terminable other than by it or any of its Subsidiaries or under which a material payment obligation would arise or be accelerated, in each case as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), (Ev) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, ; (Fvi) pursuant to which ANCX the annualized rent or one lease payments are, or are reasonably expected to be, in excess of its Subsidiaries leases real property to or from any other Person, $50,000; (Gvii) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $400,000 200,000 per year, (H) involves Intellectual Property (other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licenses) that is material to its business or the business of any of its Subsidiaries, (I) relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business consistent with past practice), (J) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant to which ANCX or one of its Subsidiaries has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, or (Mviii) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (A) through (L) above (any such being referred to as an a “ANCX Material Contract”). With respect to each ANCX Material Contract: (W) the contract is in full force and effect, (X) neither Neither it nor any of its Subsidiaries is in Default thereunderdefault under any Material Contract, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Default, (Y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 to the date hereof and (Z) no other party to any such contract is, to its Knowledge, in Default in any material respectdefault.
Appears in 2 contracts
Sources: Merger Agreement (Middleburg Financial Corp), Merger Agreement (Access National Corp)
Material Contracts; Defaults. ANCX represents and warrants (a) Except with respect to UBSH that: As of the date hereofcertain Gulfstream Benefit Plans described in Section 3.11, neither it Gulfstream nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (Aeach a “Gulfstream Material Contract”): (i) that is a “material contract” required to be filed as an exhibit pursuant to within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this Agreement, K; (Bii) that prohibits (A) limits or restricts would limit in any respect the conduct of business by it manner in which, or the localities in which, Gulfstream or any of its Subsidiaries or any of may conduct its personnel in any geographic area or its or their ability to compete in any line of business, (CB) with respect to employment of an officer, director or consultant, including any employment, severance, termination, consulting or retirement agreement, (D) that would be terminable other than by it obligates Gulfstream or any of its Subsidiaries to conduct business with any Person to the exclusion of others, or under which a material payment obligation (C) other than provisions of standard vendor, service or supply contracts entered into the ordinary course of business, limits or would arise limit in any way the ability of Gulfstream or be accelerated, in each case as a result any of its Subsidiaries to solicit prospective employees or customers or would so limit or purport to limit the announcement ability of CenterState or any of its affiliates to do so following consummation of this Agreement or the transactions contemplated herein by this Agreement; or (either alone or upon the occurrence of any additional acts or events), (E) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, (F) pursuant to which ANCX or one of its Subsidiaries leases real property to or from any other Person, (Giii) for the use or purchase of services, materials, supplies, goods, services, equipment or for the purchase, lease or license of other assets or property that involves payments provides for, or that creates future payment obligations in excess of, either (x) annual payments of $400,000 per year15,000 or more or (y) aggregate payments of $50,000 or more, (H) involves Intellectual Property (other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licensesthat can be terminated by Gulfstream or a Gulfstream Subsidiary on thirty (30) that is material to its business days or the business of less written notice at any time without penalty or premium.
(b) Neither Gulfstream nor any of its Subsidiaries, (I) relating nor, to the borrowing Knowledge of money by it Gulfstream, any counterparty or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries counterparties, is in breach of any such obligation (other than contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business consistent with past practice), (J) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant to which ANCX or one of its Subsidiaries has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, or (M) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (A) through (L) above (any such being referred to as an “ANCX Gulfstream Material Contract”). With respect to each ANCX Material Contract: (W) the contract is in full force and effect, (X) neither it nor any of its Subsidiaries is in Default thereunder, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Default, (Y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 to the date hereof and (Z) no other party to any such contract is, to its Knowledge, in Default in any material respectbreach.
Appears in 1 contract
Material Contracts; Defaults. ANCX represents Except for those agreements and warrants other documents filed as exhibits to UBSH that: As of the date hereofits SEC Documents, neither it nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (Ai) that with respect to the employment of any directors, executive officers, key employees or consultants, (ii) which is a “"material contract” required to be filed as an exhibit pursuant to " within the meaning of Item 601(b)(10) of the SEC’s 's Regulation S-K that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior (without giving effect to the date of this Agreement"ordinary course" exception set forth therein), (Biii) that prohibits or restricts which limits the conduct ability of business by it or any of its Subsidiaries or any of its personnel in any geographic area or its or their ability Subsidiary to compete in any line of business or with any Person, or involves any re- striction of geographical area in which, or method by which, it or any Subsidiary may carry on its business, (C) with respect to employment of an officer, director or consultant, including any employment, severance, termination, consulting contract which would require exclusive referrals of business (other than as may be required by law or retirement agreementany applicable Governmental Authority), (Div) that any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement or (v) which would be terminable other than prohibit or materially delay the consummation of the Merger or any of the transactions contemplated by it this Agreement (all such agreements, contracts, arrangements, commitments and understandings referred to in clauses i-v being herein referred to as "material contracts"). The Company has previously made available to Buyer true and complete copies of all employment and deferred compensation agreements with executive officers, key employees or material consultants which are in writing and to which the Company or any of its Subsidiaries or under which is a material payment obligation would arise or be accelerated, in each case as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), (E) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, (F) pursuant to which ANCX or one of its Subsidiaries leases real property to or from any other Person, (G) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $400,000 per year, (H) involves Intellectual Property (other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licenses) that is material to its business or the business of any of its Subsidiaries, (I) relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business consistent with past practice), (J) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant to which ANCX or one of its Subsidiaries has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, or (M) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (A) through (L) above (any such being referred to as an “ANCX Material Contract”)party. With respect to each ANCX Material Contract: (W) the contract is in full force and effect, (X) neither Neither it nor any of its Subsidiaries is in Default thereunderdefault under any contract, agreement, commitment, arrangement, lease, insurance policy or other instrument to which it is a party, by which its respective assets, business, or operations may be bound or affected, or under which it or its respective assets, business, or operations receives benefits, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Default, (Y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 to the date hereof and (Z) no other party to any such contract is, to its Knowledge, in Default in any material respectdefault.
Appears in 1 contract
Material Contracts; Defaults. ANCX represents Except as set forth in Section 3.3(j) of its Disclosure Letter (which may incorporate the contracts and warrants instruments reflected as exhibits on the exhibit list included in its latest annual report on Form 10-K or, in the case of BHRB, on its latest registration statement on Form 10, filed prior to UBSH that: As the date of this Agreement), as of the date hereof, neither it nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) ):
(Ai) that is a “material contract” required to be filed as an exhibit pursuant to Item 601(b)(10) of the SEC’s Regulation S-K that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this Agreement;
(ii) that, (B) that for the benefit of a party other than it or any of its Subsidiaries, prohibits or restricts the conduct of business by it or any of its Subsidiaries or any of its personnel in any geographic area or its or their ability to compete in any line of business, ;
(Ciii) with respect to employment of an officer, officer or director or engagement of a consultant, including any employment, severance, termination, consulting or retirement agreement, ;
(Div) that would be terminable other than by it or any of its Subsidiaries or under which a material payment obligation would arise or be accelerated, in each case as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), ;
(Ev) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, herein and involves payments in excess of $250,000 per year;
(Fvi) pursuant to which ANCX it or one of its Subsidiaries leases real property to or from any other Person, person;
(Gvii) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $400,000 250,000 per year, ;
(Hviii) involves Intellectual Property (as defined herein), other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licenses) , that is material to its business or the business of any of its Subsidiaries, ;
(Iix) relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than deposit liabilities, advances and loans from the Federal Home Loan Bank of Atlanta or Federal Home Loan Bank of Pittsburgh, or contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made payables, in each case entered into in the ordinary course of business consistent with past practicethe party’s business), ;
(Jx) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant technical services that is material to which ANCX its business or one the business of any of its Subsidiaries has agreed with any third party to a change and involves payments in excess of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations $250,000 per year; or
(including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, or (Mxi) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (Ai) through (Lx) above (any such being referred to as an a “ANCX Material Contract”). With respect to each ANCX Material Contract: (WA) the contract is in full force and effect, (XB) neither it nor any of its Subsidiaries is in Default default thereunder, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Defaultdefault, (YC) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 2022 to the date hereof and hereof, (ZD) no other party to any such contract is, to its Knowledge, in Default default in any material respect, and (E) neither BHRB nor SMMF (nor any of their respective Subsidiaries) has received or delivered any notice of cancellation or termination of any Material Contract.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Summit Financial Group, Inc.)
Material Contracts; Defaults. ANCX represents and warrants to UBSH that: As Except as set forth on Company Disclosure Schedule 4.01(l), none of the date hereof, neither it nor Company or any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding Contract (whether written or oral) (any such Contract in the following categories, a “Material Contract”):
(i) (A) that is a “material contract” required to be filed as an exhibit pursuant to within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K and that has not been filed as an exhibit to or incorporated by reference in its one of the Company SEC Reports filed prior to the date of this Agreement, Reports; (B) containing covenants binding upon the Company or its Subsidiaries that prohibits or restricts restrict the conduct ability of business by it the Company or any of its Subsidiaries (or which, following the consummation of the Merger, would materially restrict the ability of Parent, the Surviving Corporation or its Subsidiaries) to compete in any business or geographic area or which grant “most favored nation” status that, following the Merger, would apply to the Surviving Corporation or any of its personnel in any geographic area or its or their ability to compete in any line of business, Subsidiaries; (C) with respect to employment that could require the disposition of an officerany material assets or line of business of the Company or its Subsidiaries or, director after the Effective Time, the Surviving Corporation or consultant, including any employment, severance, termination, consulting of its Subsidiaries; or retirement agreement, (D) that would be terminable other than by it prohibits or limits the right of the Company or any of its Subsidiaries to sell or under which a distribute any products or services in any material payment obligation would arise respect;
(ii) (A) involving commitments to others to make capital expenditures or be accelerated, in each case as a result of the announcement capital asset purchases or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), (E) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, (F) pursuant to which ANCX or one of its Subsidiaries leases real property to or from any other Person, (G) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments capital asset sales in excess of $400,000 per year, 500,000; or (HB) involves Intellectual Property involving any expenditures or commitments to purchase relating to information technology in excess of $250,000;
(other than contracts entered into in iii) relating to any direct or indirect indebtedness for borrowed money of the ordinary course with customers and “shrink-wrap” software licenses) that is material to its business Company or the business of any of its Subsidiaries, (I) relating including loan agreements, lease purchase arrangements, guarantees, agreements to purchase goods or services or to supply funds or other undertakings on which others rely in extending credit, but excluding deposits received in the borrowing ordinary course of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation business (other than contracts pertaining deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Bank of New York and securities sold under agreements to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made repurchase, in each case, incurred in the ordinary course of business consistent with past practice), or any conditional sales Contracts, chattel mortgages and other security arrangements with respect to personal property and any equipment lease agreements involving payments to or by the Company or any of its Subsidiaries in excess of $1,000,000 over the remaining term;
(Jiv) relating other than pursuant to the provision Company Benefit Plans, providing for payments to any Person to be made by the Company or any of data processingits Subsidiaries upon a change in control thereof;
(v) that may not be cancelled by Parent, network communication the Company or other telecommunication services, any of their respective Subsidiaries without payment of a penalty or termination fee equal to or greater than $500,000 (Kassuming such Contract was terminated on the Closing Date);
(vi) containing any standstill or similar agreement pursuant to which ANCX or one of its Subsidiaries the Company has agreed with any third party not to a change acquire assets or securities of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations another Person;
(including indemnification, “earn-out” or other contingent obligationsvii) that are still in effectwould prevent, materially delay or materially impede the Company’s ability to consummate the Merger, the Bank Merger or the other transactions contemplated hereby;
(Lviii) that provides providing for indemnification by ANCX the Company or any of its Subsidiaries of any Person, except for non-material contracts Contracts entered into in the ordinary coursecourse of business;
(ix) that is entered into, or has been entered into in the two (M2) years prior to the date of this Agreement, with (A) any Affiliate of the Company, (B) any current or former director or executive officer or any Person beneficially owning five percent (5%) or more of the outstanding Shares or (C) any “associate” or member of the “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of a person identified in clauses (A) or (B) of this subsection;
(x) that contains a put, call, right of first refusal, right of first offer or similar right pursuant to which the Company or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets;
(xi) which relates to a joint venture, partnership, limited liability company agreement or other similar agreement or arrangement, or to the formation, creation or operation, management or control of any partnership or joint venture with any third parties;
(xii) that involves performance of services or delivery of goods or materials to, or expenditures by, the Company or any of its Subsidiaries of an amount or value in excess of $500,000 over its remaining term, other than loans, funding arrangements and other transactions made in the ordinary course of the banking or trust business;
(xiii) relating to the acquisition or disposition of any business or operations (whether by merger, sale of stock, sale of assets or otherwise) entered into since December 31, 2018 (other than Contracts relating to the acquisition or sale of other real estate owned) or, if earlier, is still outstanding;
(xiv) pursuant to which the Company or any of its Subsidiaries obtains from or grants to a Person any license, covenant not to ▇▇▇ or other right with respect to Company Intellectual Property or third party Intellectual Property Rights that is material to the financial condition, results conduct of operations or the business of it the Company or any of its Subsidiaries (other than licenses to the Company or any of its Subsidiaries of commercially available Software that involve payment of less than $250,000 per annum);
(xv) for the Processing of data or primarily related to privacy and data protection, including any Contract for the collection, use, disclosure, storage, transfer or disposal of Personal Information, in each case, that is material to the conduct of the business of the Company or any of its Subsidiaries;
(xvi) relating to the Company Real Property or for the lease of personal property providing for annual payments of $250,000 or more;
(xvii) relating to critical functions or activities of the Company or any Company Subsidiary that are provided or performed by third party service providers and which were approved by the Company Board in accordance with the FDIC’s FIL 44-2008; and
(xviii) otherwise not otherwise described entered into in clauses the ordinary course of business or that is material to the Company or its financial condition or results of operations.
Section 4.01 (Al) through (L) above (any such being referred to of the Company Disclosure Schedule sets forth a true and complete list of all Material Contracts. Each Material Contract is valid and binding on the Company or one of its Subsidiaries, as an “ANCX Material Contract”). With respect to each ANCX Material Contract: (W) the contract is applicable, and in full force and effect, (X) neither it nor any except as, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company. The Company and each of its Subsidiaries is have in Default thereunderall material respects complied with and performed all obligations required to be complied with or performed by any of them to date under each Material Contract, and there has not occurred any event thatexcept where such noncompliance or nonperformance, with either individually or in the lapse of time or the giving of notice or bothaggregate, would constitute not reasonably be expected to have a Material Adverse Effect on the Company. To the Knowledge of the Company, each third-party counterparty to each Material Contract has in all material respects complied with and performed all obligations required to be complied with and performed by it to date under such Material Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Default, (Y) neither it Material Adverse Effect on the Company. Neither the Company nor any of its Subsidiaries has repudiated Knowledge of, or waived has received notice of, any material provision violation of any such contract from January 1Material Contract by any of the other parties thereto which would reasonably be expected to have, 2017 either individually or in the aggregate, a Material Adverse Effect on the Company and no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a material breach or default on the part of the Company or any of its Subsidiaries, or to the date hereof and (Z) no Knowledge of the Company, any other party thereto, of or under any such Material Contract. No third-party counterparty to any such contract is, Material Contract has exercised or threatened in writing to its Knowledge, in Default exercise any force majeure (or similar) provision to excuse non-performance or performance delays in any material respectMaterial Contract as a result of a Contagion Event or the Contagion Event Measures.
Appears in 1 contract
Material Contracts; Defaults. ANCX represents (i) Except for documents filed and warrants listed as exhibits to UBSH that: As CFC’s Securities Documents and as listed and described in Section 5.03(k)(i) of the date hereofCFC’s Disclosure Schedule, neither it CFC nor any of its Subsidiaries is a party to, bound by or subject to any contract, agreement, contractcommitment, arrangement, commitment understanding or understanding arrangement (whether written or oral) ): (A) that is with respect to the employment of any directors, officers, employees, independent contractors or consultants; (B) which would entitle any present or former director, officer, employee, independent contractor, consultant or agent of CFC or any of its Subsidiaries to indemnification from CFC or any of its Subsidiaries; (C) which provides for the payment by CFC or any of its Subsidiaries of payments upon a “merger, consolidation, acquisition, asset purchase, stock purchase or other business combination transaction involving CFC or any of its Subsidiaries, including but not limited to, the Merger; (D) which would be a material contract” required to be filed contract (as an exhibit pursuant to defined in Item 601(b)(10) of the SEC’s Regulation S-K of the SEC) to be performed after the date of this Agreement; (E) which is a consulting agreement (including data processing, software programming and licensing contracts) not terminable on thirty (30) days or less notice; (F) which is a lease for any real or material personal property owned or presently used by CFC or any of its Subsidiaries; (G) which (1) restricts the conduct of their respective business or limits the freedom of CFC or any of its Subsidiaries to engage in any line of business in any geographic area (or would so restrict CFC or any of its Subsidiaries after consummation of the Merger), (2) restricts the ability of CFC or any of its Subsidiaries to disclose any confidential information, trade secrets or proprietary information belonging to or provided by another Person, (3) restricts the ability of CFC or any of its Subsidiaries to solicit or hire any Person, or (4) requires exclusive referrals of business or requires CFC or any of its Subsidiaries to offer products or services on a priority or exclusive basis; (H) which relates to or evidences third-party indebtedness for borrowed money of such Person; (I) which has the effect of providing that the consummation of the Transaction or the execution, delivery or effectiveness of this Agreement and the Bank Merger Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such contract, agreement, commitment, understanding or arrangement or give rise under such contract, agreement, commitment, understanding or arrangement to any right of, or result in, a termination, right of first refusal, material amendment, revocation, cancellation or material acceleration, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of CFC or any of its Subsidiaries, or to any increased, accelerated or additional material rights or material entitlements of any Person; (J) which relates to the settlement or other resolution of any legal proceeding that has not been filed as an exhibit any continuing obligations, liabilities or restrictions; (K) which relates to the disposition or incorporated acquisition by reference in CFC or any of its SEC Reports filed prior Subsidiaries, with obligations to third parties remaining to be performed or liabilities continuing after the date of this Agreement, of any material business or any material amount of assets; (BL) that prohibits which relates to a partnership or restricts the conduct joint venture or similar arrangement; (M) which involves capital expenditures by CFC or any of business by it its Subsidiaries; (N) which relates to licenses of Intellectual Property (whether CFC or any of its Subsidiaries is the licensor or licensee thereunder) material to its respective business; (O) which involves an “earn-out” agreement or similar arrangement; (P) which relates to future disposition or acquisition of any business enterprise or any of its personnel interest in any geographic area business enterprise; or its or their ability (Q) which are otherwise material to compete in any line the business of business, (C) with respect to employment of an officer, director or consultant, including any employment, severance, termination, consulting or retirement agreement, (D) that would be terminable other than by it CFC or any of its Subsidiaries (collectively, “Material Contracts”). Except as set forth in Section 5.03(k)(i) of CFC’s Disclosure Schedule, no consents, approvals, notices or under which a material payment obligation would arise waivers are required to be obtained or be accelerated, in each case delivered pursuant to the terms and conditions of any Material Contract as a result of the announcement CFC’s and Cascade Bank’s (as applicable) execution, delivery or consummation performance of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), (E) that would require any consent or approval of a counterparty as a result of and Bank Merger Agreement and the consummation of this Agreement or the transactions contemplated hereinTransaction. True, correct and complete copies of all such Material Contracts have been made available to Opus as of the date hereof.
(Fii) pursuant to which ANCX or one Each of its Subsidiaries leases real property to or from any other Person, (G) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $400,000 per year, (H) involves Intellectual Property (other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licenses) that is material to its business or the business of any of its Subsidiaries, (I) relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business consistent with past practice), (J) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant to which ANCX or one of its Subsidiaries has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, or (M) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (A) through (L) above (any such being referred to as an “ANCX Material Contract”). With respect to each ANCX Material Contract: (W) the contract Contracts is in full force and effecteffect and is a valid and binding obligation of CFC or its Subsidiaries, and to the knowledge of CFC or Cascade Bank, the other parties thereto, enforceable against CFC or its Subsidiaries, and to the knowledge of CFC or Cascade Bank, the other parties thereto in accordance with its terms. CFC or its Subsidiaries (Xas applicable) neither it have performed, in all material respects, all obligations required to be performed by them under each Material Contract. Neither CFC nor any of its Subsidiaries is in Default thereunderdefault under any contract, agreement, commitment, arrangement, lease, insurance policy or other instrument to which they are a party, including but not limited to any Material Contract, by which their respective business, or their respective operations may be bound or affected, or under which their respective business or their respective operations receives benefits, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Default, (Y) neither it nor default. No power of attorney or similar authorization given directly or indirectly by CFC or any of its Subsidiaries is currently outstanding. Except as would not have a Material Adverse Effect, with respect to the Material Contracts, no event has repudiated occurred, and no circumstance or waived condition exists, that (with or without notice or lapse of time, or both) will, or would reasonably be expected to, (A) give any material provision Person the right to declare a default or exercise any remedy under any Material Contract, (B) give any Person the right to accelerate the maturity or performance of any Material Contract, or (C) give any Person the right to cancel, terminate or modify any Material Contract.
(iii) Section 5.03(k)(iii) of CFC’s Disclosure Schedule sets forth a schedule of all officers and directors of CFC and its Subsidiaries who have outstanding loans from CFC or any of its Subsidiaries, and there has been no default on, or forgiveness or waiver of, in whole or in part, any such contract from January 1, 2017 to loan during the two years immediately preceding the date hereof and (Z) no other party to any such contract is, to its Knowledge, in Default in any material respecthereof.
Appears in 1 contract
Material Contracts; Defaults. ANCX represents and warrants (a) Except with respect to UBSH that: As of the date hereofcertain MBI Benefit Plans described in Section 3.11, neither it MBI nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (each a “MBI Material Contract”): (i) that (A) that is a “material contract” required to be filed as an exhibit pursuant to Item 601(b)(10) of limits or would limit in any respect the SEC’s Regulation S-K that has not been filed as an exhibit to manner in which, or incorporated by reference the localities in its SEC Reports filed prior to the date of this Agreementwhich, (B) that prohibits or restricts the conduct of business by it MBI or any of its Subsidiaries or any of may conduct its personnel in any geographic area or its or their ability to compete in any line of business, (CB) with respect to employment of an officer, director or consultant, including any employment, severance, termination, consulting or retirement agreement, (D) that would be terminable other than by it obligates MBI or any of its Subsidiaries to conduct business with any Person to the exclusion of others, or under which a material payment obligation (C) other than provisions of standard vendor, service or supply contracts entered into the ordinary course of business, limits or would arise limit in any way the ability of MBI or be accelerated, in each case as a result any of its Subsidiaries to solicit prospective employees or customers or would so limit or purport to limit the announcement ability of PHC or any of its affiliates to do so following consummation of this Agreement or the transactions contemplated herein by this Agreement; (either alone or upon the occurrence of any additional acts or events), (E) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, (F) pursuant to which ANCX or one of its Subsidiaries leases real property to or from any other Person, (Gii) for the use or purchase of services, materials, supplies, goods, services, equipment or for the purchase, lease or license of other assets or property that involves payments provides for, or that creates future payment obligations in excess of, either (x) annual payments of TABLE OF CONTENTS $100,000 or more or (y) aggregate payments of $400,000 per year250,000 or more, (H) involves Intellectual Property (other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licensesthat can be terminated by MBI or a MBI Subsidiary on thirty (30) days or less written notice at any time without penalty or premium; or (iii) any contract or agreement that is material to its business a shared loss contract or agreement (including any related or ancillary contract or agreement) with the business of FDIC (each such contract, agreement or related or ancillary contract or agreement, a “Loss-Share Agreement”).
(b) Neither MBI nor any of its Subsidiaries, (I) relating nor, to the borrowing Knowledge of money by it MBI, any counterparty or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries counterparties, is in breach of any such obligation (other than contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business consistent with past practice), (J) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant to which ANCX or one of its Subsidiaries has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, or (M) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (A) through (L) above (any such being referred to as an “ANCX MBI Material Contract”). With respect to each ANCX Material Contract: (W) the contract is in full force and effect, (X) neither it nor any of its Subsidiaries is in Default thereunder, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Default, (Y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 to the date hereof and (Z) no other party to any such contract is, to its Knowledge, in Default in any material respectbreach.
Appears in 1 contract
Material Contracts; Defaults. ANCX represents Except as set forth in Section 3.3(j) of its Disclosure Letter (which may incorporate the contracts and warrants instruments reflected as exhibits on the exhibit list included in its latest annual report on Form 10-K or, in the case of BHRB, on its latest registration statement on Form 10, filed prior to UBSH that: As the date of this Agreement), as of the date hereof, neither it nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) ): (Ai) that is a “material contract” required to be filed as an exhibit pursuant to Item 601(b)(10) of the SEC’s Regulation S-K that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this Agreement; (ii) that, (B) that for the benefit of a party other than it or any of its Subsidiaries, prohibits or restricts the conduct of business by it or any of its Subsidiaries or any of its personnel in any geographic area or its or their ability to compete in any line of business, ; (Ciii) with respect to employment of an officer, officer or director or engagement of a consultant, including any employment, severance, termination, consulting or retirement agreement, ; (Div) that would be terminable other than by it or any of its Subsidiaries or under which a material payment obligation would arise or be accelerated, in each case as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), ; (Ev) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, herein and involves payments in excess of $250,000 per year; (Fvi) pursuant to which ANCX it or one of its Subsidiaries leases real property to or from any other Person, person; (Gvii) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $400,000 250,000 per year, (H) involves Intellectual Property (other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licenses) that is material to its business or the business of any of its Subsidiaries, (I) relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business consistent with past practice), (J) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant to which ANCX or one of its Subsidiaries has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, or (M) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (A) through (L) above (any such being referred to as an “ANCX Material Contract”). With respect to each ANCX Material Contract: (W) the contract is in full force and effect, (X) neither it nor any of its Subsidiaries is in Default thereunder, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Default, (Y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 to the date hereof and (Z) no other party to any such contract is, to its Knowledge, in Default in any material respect.;
Appears in 1 contract
Sources: Merger Agreement (Burke & Herbert Financial Services Corp.)
Material Contracts; Defaults. ANCX represents Except as set forth in Section 3.3(j) of its Disclosure Letter (which may incorporate the contracts and warrants instruments reflected as exhibits on the exhibit list included in its latest annual report on Form 10-K filed prior to UBSH that: As the date of this Agreement), as of the date hereof, neither it nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (Ai) that is a “material contract” required to be filed as an exhibit pursuant to Item 601(b)(10) of the SEC’s Regulation S-K that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this Agreement, (Bii) that prohibits or restricts the conduct of business by it or any of its Subsidiaries or any of its personnel in any geographic area or its or their ability to compete in any line of business, (Ciii) with respect to employment of an officer, officer or director or engagement of a consultant, including any employment, severance, termination, consulting or retirement agreement, (Div) that would be terminable other than by it or any of its Subsidiaries or under which a material payment obligation would arise or be accelerated, in each case as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), (Ev) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated hereinherein and involves payments in excess of $200,000 per year, (Fvi) pursuant to which ANCX it or one of its Subsidiaries leases real property to or from any other Personperson, (Gvii) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $400,000 200,000 per year, (Hviii) involves Intellectual Property (other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licenses) that is material to its business or the business of any of its Subsidiaries, (Iix) relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than deposit liabilities, advances and loans from the Federal Home Loan Bank of Atlanta, or contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made payables, in each case entered into in the ordinary course of business consistent with past practicethe party’s business), (Jx) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant technical services that is material to which ANCX its business or one the business of any of its Subsidiaries has agreed with any third party to a change and involves payments in excess of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, $200,000 per year or (Mxi) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (Ai) through (Lx) above (any such being referred to as an a “ANCX Material Contract”). With respect to each ANCX Material Contract: (WA) the contract is in full force and effect, (XB) neither it nor any of its Subsidiaries is in Default default thereunder, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Defaultdefault, (YC) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 2019 to the date hereof hereof, and (ZD) no other party to any such contract is, to its Knowledge, in Default default in any material respect.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Blue Ridge Bankshares, Inc.)
Material Contracts; Defaults. ANCX represents Except as set forth in Section 3.3(j) of its Disclosure Letter (which may incorporate the contracts and warrants instruments reflected as exhibits on the exhibit list included in its latest annual report on Form 10-K filed prior to UBSH that: As the date of this Agreement), as of the date hereof, neither it nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (Ai) that is a “material contract” required to be filed as an exhibit pursuant to Item 601(b)(10) of the SEC’s Regulation S-K that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this Agreement, (Bii) that prohibits or restricts the conduct of business by it or any of its Subsidiaries or any of its personnel in any geographic area or its or their ability to compete in any line of business, (Ciii) with respect to employment of an officer, officer or director or engagement of a consultant, including any employment, severance, termination, consulting or retirement agreement, (Div) that would be terminable other than by it or any of its Subsidiaries or under which a material payment obligation would arise or be accelerated, in each case as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), (Ev) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated hereinherein and involves payments in excess of $200,000 per year, (Fvi) pursuant to which ANCX it or one of its Subsidiaries leases real property to or from any other Personperson, (Gvii) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $400,000 200,000 per year, (Hviii) involves Intellectual Property (as defined herein), other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licenses) , that is material to its business or the business of any of its Subsidiaries, (Iix) relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than deposit liabilities, advances and loans from the Federal Home Loan Bank of Atlanta, or contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made payables, in each case entered into in the ordinary course of business consistent with past practicethe party’s business), (Jx) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant technical services that is material to which ANCX its business or one the business of any of its Subsidiaries has agreed with any third party to a change and involves payments in excess of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, $200,000 per year or (Mxi) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (Ai) through (Lx) above (any such being referred to as an a “ANCX Material Contract”). With respect to each ANCX Material Contract: (WA) the contract is in full force and effect, (XB) neither it nor any of its Subsidiaries is in Default default thereunder, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Defaultdefault, (YC) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 2019 to the date hereof hereof, and (ZD) no other party to any such contract is, to its Knowledge, in Default default in any material respect.
Appears in 1 contract
Sources: Merger Agreement (Virginia National Bankshares Corp)
Material Contracts; Defaults. ANCX represents and warrants (a) Except with respect to UBSH that: As of the date hereofcertain HBC Benefit Plans described in Section 3.11, neither it HBC nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) (Aeach a “HBC Material Contract”): (i) that is a “material contract” required to be filed as an exhibit pursuant to within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this Agreement, K; (Bii) that prohibits (A) limits or restricts would limit in any respect the conduct of business by it manner in which, or the localities in which, HBC or any of its Subsidiaries or any of may conduct its personnel in any geographic area or its or their ability to compete in any line of business, (CB) with respect to employment of an officer, director or consultant, including any employment, severance, termination, consulting or retirement agreement, (D) that would be terminable other than by it obligates HBC or any of its Subsidiaries to conduct business with any Person to the exclusion of others, or under which a material payment obligation (C) other than provisions of standard vendor, service or supply contracts entered into the ordinary course of business, limits or would arise limit in any way the ability of HBC or be accelerated, in each case as a result any of its Subsidiaries to solicit prospective employees or customers or would so limit or purport to limit the announcement ability of CenterState or any of its affiliates to do so following consummation of this Agreement or the transactions contemplated herein by this Agreement; or (either alone or upon the occurrence of any additional acts or events), (E) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, (F) pursuant to which ANCX or one of its Subsidiaries leases real property to or from any other Person, (Giii) for the use or purchase of services, materials, supplies, goods, services, equipment or for the purchase, lease or license of other assets or property that involves payments provides for, or that creates future payment obligations in excess of, either (x) annual payments of $400,000 per year75,000 or more or (y) aggregate payments of $150,000 or more, (H) involves Intellectual Property (other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licensesthat can be terminated by HBC or a HBC Subsidiary on sixty (60) that is material to its business days or the business of less written notice at any time without penalty or premium.
(b) Neither HBC nor any of its Subsidiaries, (I) relating nor, to the borrowing Knowledge of money by it HBC, any counterparty or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries counterparties, is in breach of any such obligation (other than contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business consistent with past practice), (J) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant to which ANCX or one of its Subsidiaries has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, or (M) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (A) through (L) above (any such being referred to as an “ANCX HBC Material Contract”). With respect to each ANCX Material Contract: (W) the contract is in full force and effect, (X) neither it nor any of its Subsidiaries is in Default thereunder, and there has not occurred any event that, with the lapse of time or the giving of notice or both, would constitute such a Default, (Y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 to the date hereof and (Z) no other party to any such contract is, to its Knowledge, in Default in any material respectbreach.
Appears in 1 contract
Material Contracts; Defaults. ANCX represents and warrants to UBSH that: As of the date hereof, neither it nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or orala) (A) that is a The Buyer SEC Documents disclose each “material contract” required to be filed (as an exhibit pursuant to such term is defined in Item 601(b)(10) of the SEC’s Regulation S-K that has not been filed of the SEC) (other than confidentiality and non-disclosure agreements and this Agreement) to which, as an exhibit to or incorporated by reference in its SEC Reports filed prior to of the date of this Agreement, (B) that prohibits Buyer is a party or restricts the conduct of business by it or which any of its Subsidiaries or any of its personnel in any geographic area or its or their ability to compete in any line of business, assets is bound (Cthe “Buyer Material Contracts”).
(b) with respect to employment of an officer, director or consultant, including any employment, severance, termination, consulting or retirement agreement, (D) that would be terminable other than by it or any of its Subsidiaries or under which a material payment obligation would arise or be accelerated, in each case as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), (E) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, (F) pursuant to which ANCX or one of its Subsidiaries leases real property to or from any other Person, (G) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $400,000 per year, (H) involves Intellectual Property (other than contracts Each Buyer Material Contract was entered into in the ordinary course with customers at arm’s length and “shrink-wrap” software licenses) that is material to its business or the business of any of its Subsidiaries, (I) relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business consistent business. Except for any Buyer Material Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date, with past practice)respect to any Buyer Material Contract, (Ji) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant to which ANCX or one of its Subsidiaries has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that Buyer Material Contracts are still in effect, (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course, or (M) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in clauses (A) through (L) above (any such being referred to as an “ANCX Material Contract”). With respect to each ANCX Material Contract: (W) the contract is in full force and effecteffect and represent the legal, valid and binding obligations of Buyer and, to the knowledge of Buyer, represent the legal, valid and binding obligations of the other parties thereto, and, to the knowledge of Buyer, are enforceable by Buyer to the extent a party thereto in accordance with their terms, subject to the Remedies Exception, (Xii) neither it nor Buyer nor, to the knowledge of Buyer, any of its Subsidiaries other party thereto is in Default thereundermaterial breach of or material default (or would be in material breach, and there violation or default but for the existence of a cure period) under any such Buyer Material Contract, (iii) since the IPO, Buyer has not received any written or, to the knowledge of Buyer, oral claim or notice of material breach of or material default under any such Buyer Material Contract, (iv) to the knowledge of Buyer, no event has occurred which, individually or together with other events, would reasonably be expected to result in a material breach of or a material default under any event thatsuch Buyer Material Contract (in any case, with the or without notice or lapse of time or both) and (v) since the giving of notice or both, would constitute such a Default, (Y) neither it nor any of its Subsidiaries has repudiated or waived any material provision of any such contract from January 1, 2017 to IPO through the date hereof and (Z) no hereof, Buyer has not received written notice from any other party to any such contract is, Buyer Material Contract that such party intends to its Knowledge, in Default in terminate or not renew any material respectsuch Buyer Contract.
Appears in 1 contract
Sources: Equity Purchase Agreement (Yellowstone Acquisition Co)
Material Contracts; Defaults. ANCX represents and warrants to UBSH that: (1) As of the date hereof, neither it the Company nor any of its Subsidiaries is a party to, bound by or subject to any agreement, contract, arrangement, commitment or understanding (whether written or oral) Contract (A) that is a “material contract” required to be filed as an exhibit pursuant to within the meaning of Item 601(b)(10) of the SEC’s Regulation S-K or is a Contract that has not been filed as an exhibit to or incorporated by reference in its SEC Reports filed prior to the date of this AgreementCompany otherwise deems material, (B) that prohibits or restricts in any material respect the conduct of business by it or any of its Subsidiaries or any of its personnel in any geographic area or its or their ability (or, to the Knowledge of the Company, which, following the consummation of the Merger, could materially restrict the ability of Parent or any of its Affiliates, including the Company and its Subsidiaries) to compete or engage in any material line of business, or to develop, market or distribute any material products or material services, in each case, in any geographic territory, (C) with respect that have an aggregate value, or involve payments by or to employment of an officer, director the Company or consultant, including any employment, severance, termination, consulting or retirement agreement, (D) that would be terminable other than by it or any of its Subsidiaries or under which a material payment obligation would arise or be accelerated, in each case as a result of the announcement or consummation of this Agreement or the transactions contemplated herein (either alone or upon the occurrence of any additional acts or events), (E) that would require any consent or approval of a counterparty as a result of the consummation of this Agreement or the transactions contemplated herein, (F) pursuant to which ANCX or one of its Subsidiaries leases real property to or from any other Person, (G) for the use or purchase of materials, supplies, goods, services, equipment or other assets that involves payments in excess of $400,000 per year, (H) involves Intellectual Property (other than contracts entered into in the ordinary course with customers and “shrink-wrap” software licenses) that is material to its business or the business of any of its Subsidiaries, of more than $50,000,000.00 in any twelve-month period, or (I) relating to the borrowing of money by it or any of its Subsidiaries or the guarantee by it or any of its Subsidiaries of any such obligation (other than contracts pertaining to fully-secured repurchase agreement payables or trade payables and contracts relating to borrowings or guarantees made in the ordinary course of business consistent with past practice), (J) relating to the provision of data processing, network communication or other telecommunication services, (K) pursuant to which ANCX or one of its Subsidiaries has agreed with any third party to a change of control transaction such as an acquisition, divestiture or merger or contains a put, call or similar right involving the purchase or sale of any equity interests or assets of any Person and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligationsD) that are still in effectmaterial joint venture, partnership, teaming or other similar agreements (L) that provides for indemnification by ANCX or its Subsidiaries of any Person, except for non-material contracts entered into the Contracts referred to in the ordinary course, or (M) that is material to the financial condition, results of operations or business of it or any of its Subsidiaries and not otherwise described in foregoing clauses (A) through (LD) above (any such being referred to collectively as an “ANCX Material Contracts”).
(2) Neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company, any other party to any Material Contract”). , is in default or material breach of (and, to the Knowledge of the Company, no event has occurred which with notice or the lapse of time or both would constitute a default or material breach by the Company or any of its Subsidiaries of) any Material Contract.
(3) With respect to each ANCX Material Contract between the Company or any of its Subsidiaries, on the one hand, and any Governmental Authority, on the other hand, for which (A) performance has not been or was not completed or (B) final payment has not been or was not received, in either case, prior to the date that is three years prior to the date of this Agreement, and each outstanding bid, quotation or proposal by the Company or any of its Subsidiaries (each, a “Bid”) that if accepted or awarded could lead to a Contract between the Company or any of its Subsidiaries, on the one hand, and any Governmental Authority, on the other hand (each such Contract or Bid, a “Company Government Contract: ”) and each Contract between the Company or any of its Subsidiaries, on the one hand, and any prime contractor or upper-tier subcontractor, on the other hand, relating to a Contract between such Person and any Governmental Authority for which (WA) performance has not been or was not completed or (B) final payment has not been or was not received, in either case, prior to the contract date that is three years prior to the date of this Agreement, and each outstanding Bid that if accepted or awarded could lead to a Contract between the Company or its Subsidiaries, on the one hand, and a prime contractor or upper-tier subcontractor, on the other hand, relating to a Contract between such Person and any Governmental Authority (each such Contract or Bid, a “Company Government Subcontract”):
(i) to the Knowledge of the Company, no reasonable basis exists to give rise to a claim for fraud (as such concept is defined under the state or federal laws of the United States) in full force and effectconnection with any Company Government Contract or Company Government Subcontract or under the United States False Claims Act, the United States Truth in Negotiations Act or the United States Procurement Integrity Act;
(Xii) neither it the United States Government nor any prime contractor, subcontractor or other Person or entity has notified the Company or any of its Subsidiaries, in writing, that the Company or any of its Subsidiaries has, or may have, breached or violated in any material respect any law, certification, representation, clause, provision or requirement pertaining to such Company Government Contract or Company Government Subcontract, and all facts set forth or acknowledged by any representations, claims or certifications submitted by or on behalf of the Company or any of its Subsidiaries in connection with such Company Government Contract or Company Government Subcontract were current, accurate and complete in all material respects on the date of submission;
(iii) to the Company’s Knowledge, with respect to any Contract that is material to the Company, neither the Company nor any of its Subsidiaries is has, within the past two years, received any notice of termination for convenience, notice of termination for default, cure notice or show cause notice that related to a material non-performance that was not properly resolved and withdrawn (or, in Default thereunderthe case of Contracts governed by laws other than the state or federal laws of the United States, the functional equivalents thereof, if any) pertaining to such Company Government Contract or Company Government Subcontract, and there has to its Knowledge, the Company is not occurred aware of any event that, with basis for any such notice;
(4) Neither the lapse of time or the giving of notice or both, would constitute such a Default, (Y) neither it Company nor any of its Subsidiaries Subsidiaries, nor any of the respective directors, officers, employees, consultants or agents, is, or within the past three years has repudiated or waived been, to the Knowledge of the Company, (i) under any material provision administrative, civil or criminal investigation, audit, indictment or information by any Governmental Authority, (ii) the subject of any such contract material audit or investigation by the Company or any of its Subsidiaries, in the case of each of clauses (i) and (ii), with respect to any alleged act or omission arising under or relating to any Company Government Contract or Company Government Subcontract or (iii) debarred or suspended, or proposed for debarment or suspension, or received notice of actual or proposed debarment or suspension (or for purposes of this clause (iii), in the case of Contracts governed by laws other than the state or federal laws of the United States, the functional equivalents thereof, if any), from January 1participation in the award of any Contract with, 2017 or grant of any authorization from, any Governmental Authority. There exist no facts or circumstances that, to the date hereof Knowledge of the Company, would warrant the institution of suspension or debarment proceedings or a finding of nonresponsibility or ineligibility with respect to the Company, any of its Subsidiaries or any of their respective directors, officers or managers, in any such case, for purposes of doing business with any Governmental Authority.
(5) To the Knowledge of the Company, neither the Company nor any Company Subsidiary has received written notice of any material (i) outstanding claims (including claims relating to bid or award protest proceedings (or, in the case of Contracts governed by laws other than the state or federal laws of the United States, the functional equivalents thereof, if any)) against the Company or any of its Subsidiaries, either by any Governmental Authority or by any prime contractor, subcontractor, vendor or other Person, arising under or relating to any Company Government Contract or Company Government Subcontract, and (Zii) no outstanding claims or requests for equitable adjustment (or, in the case of Contracts governed by laws other party than the state or federal laws of the United States, the functional equivalents thereof, if any) or disputes (including claims, requests and formal disputes relating to bid or award protest proceedings) between the Company or any of its Subsidiaries, on the one hand, and the United States government, on the other hand, under the United States Contract Disputes Act, as amended, or any other law or between the Company or any of its Subsidiaries, on the one hand, and any prime contractor, subcontractor, vendor or other Person, on the other hand, arising under or relating to any such contract is, to its Knowledge, in Default in any material respectCompany Government Contract or Company Government Subcontract.
Appears in 1 contract