Selected Contracts. (a) Except for this Agreement, any Franchise Agreement, any Intercompany Agreement, any Related Document and any Contracts filed as exhibits to the SEC Documents, Section 4.08 of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of: (i) each mortgage, indenture, guarantee, loan or credit agreement, security agreement or other Contract relating to the Indebtedness of the Company or any Company Subsidiary, in each case pursuant to which in excess of $12,000,000, is outstanding or may be incurred, other than any such Contract between or among any of the Company and any Company Subsidiaries and any letters of credit of which the Company or any Company Subsidiary is the obligor; (ii) each Contract to which the Company or any Company Subsidiary is a party that by its terms requires aggregate payments by or to the Company or any Company Subsidiary of more than $12,000,000 over the remaining term of such Contract, except for any Contract that may be cancelled, without any material penalty or other material liability to the Company or any Company Subsidiary, upon notice of ninety (90) days or less; (iii) each Contract to which the Company or any Company Subsidiary is a party entered into since December 29, 2018, in each case, relating to the acquisition or disposition by the Company or any Company Subsidiary of properties or assets, in each case, for aggregate consideration of more than $20,000,000, except for (A) acquisitions and dispositions of properties and assets in the ordinary course of business and (B) any Contract relating to the Transactions; (iv) other than the Securitization Agreement and any Contract entered into pursuant to the transactions contemplated by the Securitization Agreement, and licenses of Company Intellectual Property entered into in the ordinary course of business, each Contract of the Company or any Company Subsidiary that (A) authorizes any third party to grant others the right to license any material trademark, service ▇▇▇▇ or other Intellectual Property owned by the Company or any Company Subsidiary in any geographic area; (B) restricts in any way the ability of the Company or such Company Subsidiary to compete with any business or in any geographical area or to solicit customers; or (C) prohibits or limits the right of the Company or any Company Subsidiary to use, transfer, license, distribute or enforce any of their respective Company Intellectual Property material to the businesses of the Company and the Company Subsidiaries, taken as a whole, in each case under the foregoing clauses (A) through (C) that limits the operation of the Company and the Company Subsidiaries, taken as a whole, as currently operated, in any material respect and that may not be cancelled by the Company or any of its Subsidiaries upon notice of ninety (90) days or less without material penalty or other material liability to the Company or any of its Subsidiaries; (v) each Contract that grants to any person any right of exclusivity to a geographic region, area of protection, option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any tangible assets of the Company or any Company Subsidiary that has a value, estimated as of the date hereof, in excess of $20,000,000, except those entered into in the ordinary course of business and those relating to sales of restaurants or property owned by the Company or any of its Subsidiaries to new or existing Franchisees; (vi) each Contract of the Company or any Company Subsidiary that establishes a partnership, joint venture or similar arrangement; (vii) each Contract that is a settlement, conciliation or similar agreement with respect to an Action (A) that has been entered into with any Governmental Authority since December 29, 2018, which includes payments in excess of $12,000,000 or equitable relief material to the Company and its Subsidiaries, taken as a whole, (B) pursuant to which the Company or any Company Subsidiary is obligated after the date of this Agreement to pay consideration in excess of $10,000,000, or (C) that would otherwise materially limit the operation of the Company and the Company Subsidiaries, taken as a whole, as currently operated; and (viii) each Contract to which any Principal Supplier is a party (other than purchase orders) that has a remaining term of more than ninety (90) days and that (A) may not be cancelled by the Company or any Company Subsidiary upon notice of ninety (90) days or less or (B) may be cancelled by the Company or any Company Subsidiary, with material penalty or other material liability to the Company or any Company Subsidiary, upon notice of ninety (90) days or less. Each Contract set forth in Section 4.08 of the Company Disclosure Schedule or required to be set forth thereon or that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act is referred to herein as a “Selected Contract.” (b) Each of the Selected Contracts is, valid and binding on the Company or a Subsidiary of the Company party thereto and, to the Knowledge of the Company, each other party thereto (other than with respect to Selected Contracts that have expired in accordance with their terms), except in each case (i) as would not, individually or in the aggregate, have a Material Adverse Effect and (ii) subject to the effect of any applicable bankruptcy, insolvency (including all Laws relating to fraudulent transfers), reorganization, moratorium or similar Laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at Law or in equity). As of the date of this Agreement, each Selected Contract, is in full force and effect (other than with respect to Selected Contracts that have expired in accordance with their terms), except as would not, individually or in the aggregate, have a Material Adverse Effect. There is no breach or default under any Selected Contract by the Company or any Company Subsidiary, except as would not, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Company, there is no breach or default under any Selected Contract by any other party thereto, except as would not, individually or in the aggregate, have a Material Adverse Effect. No event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default under any Selected Contract by the Company or any Company Subsidiary, except as would not, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default under any Selected Contract by any other party thereto, except as would not, individually or in the aggregate, have a Material Adverse Effect. Except as would not, individually or in the aggregate, have a Material Adverse Effect, from December 31, 2019 to the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written notice of termination or breach (which has not been cured) with respect to and, to the Knowledge of the Company, no party has delivered written notice threatening to terminate, any Selected Contract.
Appears in 1 contract
Selected Contracts. (a) Except for this Agreement, any Franchise Agreement, intercompany agreements solely between or among any Intercompany Agreement, of the Company and any Related Document Company Subsidiaries and any Contracts filed as exhibits to the SEC Documents, Section 4.08 of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of:
(i) each mortgage, indenture, guarantee, loan or credit agreement, security agreement or other Contract relating to the Indebtedness of the Company or any Company Subsidiary, in each case pursuant to which case, in the aggregate in excess of $12,000,00010,000,000, is outstanding or may be incurredoutstanding, other than any such Contract solely between or among any of the Company and any Company Subsidiary or between or among any Company Subsidiaries and any letters of credit of for which the Company or any Company Subsidiary is the obligor;
(ii) each Contract to which the Company or any Company Subsidiary is a party that by its terms requires calls for aggregate payments by or to the Company or any Company Subsidiary of more than $12,000,000 4,000,000 over the remaining term of such Contract, except for any Contract that may be cancelled, without any material penalty or other material liability to the Company or any Company Subsidiary, upon notice of ninety (90) days or less;
(iii) each Contract to which the Company or any Company Subsidiary is a party entered into since December 29, 2018the Lookback Start Date, in each case, relating to the acquisition or disposition by the Company or any Company Subsidiary of properties or assets, in each case, for aggregate consideration of more than $20,000,0008,000,000 or containing material obligations on the Company or Company Subsidiary party thereto that are continuing, except for (A) acquisitions and dispositions of properties and assets in the ordinary course of business and (B) any Contract relating to the Transactions;
(iv) other than the Securitization Agreement and any Contract entered into pursuant to the transactions contemplated by the Securitization Agreement, and licenses of Company Intellectual Property entered into in the ordinary course of business, each Contract of the Company or any Company Subsidiary that (A) authorizes any third party to grant others the right to license any material trademark, service ▇▇▇▇ or other Intellectual Property owned by the Company or any Company Subsidiary in any geographic area; (B) restricts in any way the ability of the Company or such Company Subsidiary to compete with any business or in any geographical area or to solicit customers; customers or (C) prohibits solicit or hire employees or other individual service provides, in each case, that limits in any material respect the right operation of the businesses of the Company or any material Company Subsidiary to use, transfer, license, distribute or enforce any of their respective Company Intellectual Property material to the businesses of the Company and the Company Subsidiaries, taken as a whole, in each case under the foregoing clauses (A) through (C) that limits the operation of the Company and the Company Subsidiaries, taken as a whole, as currently operated, in any material respect and that may not be cancelled by the Company or any of its Subsidiaries the applicable Company Subsidiary upon notice of ninety (90) days or less without material penalty or other material liability to the Company or any of its SubsidiariesCompany Subsidiary;
(v) each Contract of the Company or any material Company Subsidiary which contains “most favored nation”, “exclusivity”, minimum take or pay provisions or provisions similar to any of the foregoing;
(vi) each Contract that grants to any person any right of exclusivity to a geographic region, area of protection, option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any tangible assets of the Company or any Company Subsidiary that has a value, estimated as of the date hereof, value in excess of $20,000,0004,000,000, except those entered into in the ordinary course of business and those relating to sales of restaurants or property owned by the Company or any of its Subsidiaries to new or existing Franchiseesbusiness;
(vivii) each Contract of the Company or any Company Subsidiary that establishes a partnership, joint venture or similar arrangement;
(viiviii) each Contract that is a settlement, conciliation or similar agreement with respect to an Action (A) that has been entered into with any Governmental Authority since December 29, 2018, which includes payments in excess of $12,000,000 or equitable relief material to would require the Company and its Subsidiaries, taken as a whole, or any of the Company Subsidiaries to pay consideration of more than $2,500,000 after the date of this Agreement or (B) pursuant to which that subjects (or would subject) the Company or any Company Subsidiary to any equitable relief or other material ongoing requirements (other than payment requirements) or restrictions;
(ix) each Contract that is obligated after between the date Company or any Company Subsidiary, on the one hand, and any director, officer, employee or independent contractor of this Agreement the Company or any Company Subsidiary or any person beneficially owning five percent (5%) or more of the outstanding Shares, on the other hand, except for any Plan;
(x) each Contract to pay consideration in excess which any Principal Customer is a party;
(xi) each Contract that is material to the conduct of $10,000,000, or (C) that would otherwise materially limit the operation businesses of the Company and the Company Subsidiaries, taken as a whole, as currently operatedunder which a Company or any Company Subsidiary (A) licenses or receives any rights to any material Intellectual Property from a third party (other than non-exclusive licenses for commercial off-the-shelf software) or (B) licenses or grants any rights to any material Company Intellectual Property (other than non-exclusive licenses of Company Intellectual Property granted in the ordinary course of business); and
(viiixii) each Contract to which any Principal Supplier is a party (other than purchase orders) that has a remaining term of more than ninety (90) days and that (A) may not be cancelled by the Company or any Company Subsidiary upon notice of ninety (90) days or less or (B) may be cancelled by the Company or any Company Subsidiary, with material without penalty or other material liability to the Company or any Company Subsidiary, upon notice of ninety (90) days or less. Each Contract set forth in Section 4.08 of the Company Disclosure Schedule or required to be set forth thereon or that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act is referred to herein as a “Selected Contract.”
(b) Each As of the Selected Contracts isdate of this Agreement, valid and binding on the Company or a Subsidiary has made available to Parent true and complete copies of the Company party thereto and, to the Knowledge of the Company, each other party thereto (other than with respect to Selected Contracts that have expired in accordance with their terms), except in each case (i) Contract. Except as would not, individually or in the aggregate, have a Material Adverse Effect (i) each of the Selected Contracts is valid and binding on the Company or a Company Subsidiary party thereto and, to the Knowledge of the Company, each other party thereto, (ii) subject each Selected Contract is in full force and effect and, to the effect Knowledge of any applicable bankruptcythe Company, insolvency (including all Laws relating to fraudulent transfers), reorganization, moratorium or similar Laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at Law or in equity). As as of the date of this Agreement, each there is no breach or default under any Selected ContractContract by any other party thereto, is in full force and effect (other than with respect to Selected Contracts that have expired in accordance with their terms), except as would not, individually or in the aggregate, have a Material Adverse Effect. There iii) there is no breach or default under any Selected Contract by the Company or any Company Subsidiary, except as would not, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Company, there is (iv) no breach or default under any Selected Contract by any other party thereto, except as would not, individually or in the aggregate, have a Material Adverse Effect. No event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default under any Selected Contract by the Company or any Company SubsidiarySubsidiary and (v) as of the date of this Agreement, except as would not, individually or in the aggregate, have a Material Adverse Effect. To to the Knowledge of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default under any Selected Contract by any other party thereto, except as would not, individually or in the aggregate, have a Material Adverse Effect. Except as would not, individually or in the aggregate, have a Material Adverse Effect, from December 31, 2019 to the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written notice of termination or breach (which has not been cured) with respect to and, to the Knowledge of the Company, no party has delivered written notice threatening to terminate, any Selected Contract.
Appears in 1 contract
Sources: Merger Agreement (Aegion Corp)
Selected Contracts. (a) Except for this Agreement, any Franchise Agreement, any Intercompany Agreement, any Related Document and any Contracts filed as exhibits to the SEC Documents, Section 4.08 of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of:
(i) each mortgage, indenture, guarantee, loan or credit agreement, security agreement or other Contract relating to the Indebtedness of the Company or any Company Subsidiary, in each case pursuant to which in excess of $12,000,0002,500,000, is outstanding or may be incurred, other than any such Contract between or among any of the Company and any Company Subsidiaries and any letters of credit of which the Company or any Company Subsidiary is the obligor;
(ii) each Contract to which the Company or any Company Subsidiary is a party that by its terms requires aggregate payments by or to the Company or any Company Subsidiary of more than $12,000,000 2,500,000 over the remaining term of such Contract, except for any Contract that may be cancelled, without any material penalty or other material liability to the Company or any Company Subsidiary, upon notice of ninety (90) days or less;
(iii) each Contract to which the Company or any Company Subsidiary is a party entered into since December 29August 31, 20182015, in each case, relating to the acquisition or disposition by the Company or any Company Subsidiary of properties or assets, in each case, for aggregate consideration of more than $20,000,0005,000,000, except for (A) acquisitions and dispositions of properties and assets in the ordinary course of business and (B) any Contract relating to the Transactions;
(iv) other than the Securitization Agreement and any Contract entered into pursuant to the transactions contemplated by the Securitization Agreement, and licenses of Company Intellectual Property entered into in the ordinary course of business, each Contract of the Company or any Company Subsidiary that (A) authorizes any third party to grant others the right to license any material trademark, service ▇m▇▇▇ or other Intellectual Property owned by the Company or any Company Subsidiary in any geographic area; (B) restricts in any way the ability of the Company or such Company Subsidiary to compete with any business or in any geographical area or to solicit customers; or (C) prohibits or limits the right of the Company or any Company Subsidiary to use, transfer, license, distribute or enforce any of their respective Company Intellectual Property material to the businesses of the Company and the Company Subsidiaries, taken as a whole, other than, in the case of this clause (C), limitations on enforcement arising from non-exclusive licenses of Company Intellectual Property entered into in the ordinary course of business, in each case under the foregoing clauses (A) through (C) that limits in any material respect the operation of the Company and the Company Subsidiaries, Subsidiaries taken as a whole, whole as currently operated, in any material respect operated and that may not be cancelled by the Company or any of its Subsidiaries upon notice of ninety (90) days or less without material penalty or other material liability to the Company or any of its Subsidiaries;
(v) each Contract that grants to any person any right of exclusivity to a geographic region, area of protection, option, right of first offer or right of first refusal or similar right to purchase, lease, sublease, license, use, possess or occupy any tangible assets of the Company or any Company Subsidiary that has a value, estimated as of the date hereof, value in excess of $20,000,0005,000,000, except those entered into in the ordinary course of business and those relating to sales of restaurants or property owned by the Company or any of its Subsidiaries to new or existing Franchisees;
(vi) each Contract of the Company or any Company Subsidiary that establishes a partnership, joint venture or similar arrangement;
(vii) each Contract that is a settlement, conciliation or similar agreement with respect to an Action (A) that has been entered into with any Governmental Authority since December 29August 31, 20182015, which includes payments in excess of $12,000,000 2,500,000 or equitable relief material to the Company and its Subsidiaries, taken as a whole, (B) pursuant to which the Company or any Company Subsidiary is obligated after the date of this Agreement to pay consideration in excess of $10,000,0002,500,000, or (C) that would otherwise materially limit the operation of the Company and the Company Subsidiaries, taken as a whole, as currently operated; and
(viii) each Contract to which any Principal Supplier is a party (other than purchase orders) that has a remaining term of more than ninety (90) days and that (A) may not be cancelled by the Company or any Company Subsidiary upon notice of ninety (90) days or less or (B) may be cancelled by the Company or any Company Subsidiary, with material penalty or other material liability to the Company or any Company Subsidiary, upon notice of ninety (90) days or less. Each Contract set forth in Section 4.08 of the Company Disclosure Schedule or required to be set forth thereon or that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act is referred to herein as a “Selected Contract.”
(b) As of the date of this Agreement, the Company has made available to Parent true and complete copies of each Selected Contract. Each of the Selected Contracts is, is valid and binding on the Company or a Subsidiary of the Company party thereto and, to the Knowledge of the Company, each other party thereto (other than with respect to Selected Contracts that have expired in accordance with their terms), except in each case (i) as would not, individually or in the aggregate, have a Material Adverse Effect and (ii) subject to the effect of any applicable bankruptcy, insolvency (including all Laws relating to fraudulent transfers), reorganization, moratorium or similar Laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at Law or in equity). As of the date of this Agreement, each Selected Contract, is in full force and effect (other than with respect to Selected Contracts that have expired in accordance with their terms)effect, except as would not, individually or in the aggregate, have a Material Adverse Effect. There is no breach or default under any Selected Contract by the Company or any Company Subsidiary, except as would not, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Company, there is no breach or default under any Selected Contract by any other party thereto, except as would not, individually or in the aggregate, have a Material Adverse Effect. No event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default under any Selected Contract by the Company or any Company Subsidiary, except as would not, individually or in the aggregate, have a Material Adverse Effect. To the Knowledge of the Company, no event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default under any Selected Contract by any other party thereto, except as would not, individually or in the aggregate, have a Material Adverse Effect. Except as would notnot reasonably be expected to be material to the Company and its Subsidiaries, individually or in the aggregatetaken as a whole, have a Material Adverse Effect, from since December 31, 2019 2017 to the date of this Agreement, neither the Company nor any of its Subsidiaries has received any written notice of termination or breach (which has not been cured) with respect to and, to the Knowledge of the Company, no party has delivered written notice threatening to terminate, any Selected Contract.
Appears in 1 contract
Sources: Merger Agreement (Sonic Corp)