Contracts; No Defaults Clause Samples
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Contracts; No Defaults. (a) Section 4.13(a) of the Disclosure Letter lists and the Company made available to Parent prior to the date hereof copies of each of the following Contracts (and all amendments, modifications and supplements thereto) to which any Acquired Company is a party or by which any of their respective properties or assets are bound (notwithstanding anything herein, “Material Contract” shall not include any Contract that (1) will be fully performed and satisfied on or prior to the Closing, (2) is a Ground Lease or (3) is an Organizational Document):
(i) any Contracts with any director, manager or officer or Affiliate of the Company;
(ii) any Contracts evidencing, governing or relating to Debt or any guarantee by any Acquired Company of any other Person in excess of $750,000, other than the Loan Documents;
(iii) any Contracts that reflect transactions, other than in the ordinary course of business, that involve expenditures, in cash or any other form of consideration, in excess of $1,000,000;
(iv) except for the Loan Documents, the Franchise Agreements, the Management Agreement Documents and Organization Documents, any Contracts that in any way purport to restrict the business activity of any Acquired Company or any of their Affiliates, or to limit the freedom of any Acquired Company or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person, except for customary restrictions imposed by localities as a condition to approval of the Acquired Companies’ development projects;
(v) any Contracts that provide an obligation to fund or make any investment in (whether in the form of a loan, capital contribution or otherwise) any Subsidiary of any of the Acquired Companies, or other Person (other than any Organizational Document);
(vi) any Contracts providing for any indemnification obligations in effect for any current or former officer, director, trustee or employee;
(vii) any Contracts evidencing any employment agreements, severance, change in control or termination agreements with any officer, director, trustee or employee;
(viii) any Contracts (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities, (B) providing any Person with any preemptive right, right of participation, right of maintenance or any similar right with respect to any securities or (C) providing any of the Acquired Companies with any right of first refusal with respect to,...
Contracts; No Defaults. (a) Schedule 4.12(a) contains a true and complete listing of all Contracts described in clauses (i) through (xvii) of this Section 4.12(a) to which, as of the Original Agreement Date, with respect to any Company Group Member is a party (together with all material amendments, waivers or other changes thereto) (all such Contracts as described in clauses (i) through (xvi), collectively, the “Material Contracts”). True, correct and complete copies of the Material Contracts have been delivered to or made available to Acquiror or its agents or Representatives.
(i) Each Contract that involves aggregate payments or consideration (contingent or otherwise) payable (A) by any Company Group Member of more than $500,000 or (B) to the Company Group of more than $500,000, in each case, in the calendar year ended December 31, 2021 or any subsequent calendar year;
(ii) each Contract relating to Indebtedness (A) with a principal amount (including the amount of any undrawn but available commitments thereunder) in excess of $500,000 or (B) for borrowed money, and any pledge agreements, security agreements or other collateral agreements in which with respect to any Company Group Member granted to any Person a security interest in or Lien on any of the property or assets of with respect to any Company Group Member;
(iii) each Contract that is a purchase and sale or similar agreement for the acquisition of any Person or any business unit thereof or the disposition of any material assets of the Company Group pursuant to which there are any material ongoing obligations;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement and each other Contract with outstanding material obligations that provides for the ownership of, leasing of, occupancy of, title to, use of, or any leasehold or other interest in any real or personal property involving payments of at least $500,000 in the aggregate during the remaining term of such Contract, other than sales or purchase agreements in the ordinary course of business and sales of obsolete equipment;
(v) each joint venture Contract, agreement establishing an entity that is a partnership, limited liability company agreement or similar Contract (other than Contracts between wholly-owned Subsidiaries of the Company) that is material to the business of the Company Group, taken as a whole;
(vi) each Contract prohibiting or restricting in any material respect the ability of any Company Group Member to engage...
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market value in excess of $50,000 to any one Person (except (i) any Contract entered into in the Ordinary Course of Business for the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership or other Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company with any other Person; (h) any Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person; (i) any Contract providing for payments to or by any Person based on sales, purchases or profits, other than (x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employe...
Contracts; No Defaults. (a) Part 4.16(a) of the Parent Disclosure Schedule contains a complete and accurate list, and copies, of:
(i) each Contract that involves performance of services or delivery of goods, services or materials (in any 12-month period) by one or more Acquired Companies of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies of an amount or value in excess of US $50,000;
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of US $50,000;
(iv) each lease agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software).
(v) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts), consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software);
(vi) each joint venture, partnership, and any other Contracts involving a sharing of profits, losses, costs or Liabilities by any Acquired Company, with any other Person;
(vii) each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person;
(viii) each Contract providing for commissions to or by any Person based on s...
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies of an amount or value in excess of $25,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of $25,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) each power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking b...
Contracts; No Defaults. (a) The Acquiror SEC Reports disclose every “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (other than confidentiality and non-disclosure agreements, this Agreement and the Subscription Agreements) to which, as of the date of this Agreement, Acquiror or Merger Sub is a party or by which any of their respective assets are bound (the “Acquiror Material Contracts”). True, correct and complete copies of the Acquiror Material Contracts have been delivered to or made available to the Company or its agents or representatives.
(b) Neither Acquiror nor Merger Sub is, nor has it received written notice that any other party to any such Acquiror Material Contract is, in material violation or material breach of or material default (immediately or upon notice or lapse of time) under any such Acquiror Material Contract to which it is a party or any of its properties or other assets is subject. No such Acquiror Material Contract is the subject of a notice to terminate, except for any expiration of the term of such Contract following the date of this Agreement in accordance with its terms. Each Acquiror Material Contract is in full force and effect and, subject to the Enforceability Exceptions, is legal, valid and binding on Acquiror or Merger Sub, as applicable, and, to the Knowledge of Acquiror, each other party thereto, except as would not be material and adverse to Acquiror and Merger Sub, taken as a whole. There is no default under any such Acquiror Material Contract by Acquiror or Merger Sub, or, to the Knowledge of Acquiror, any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by Acquiror or Merger Sub, or, to the Knowledge of Acquiror, any other party thereto, in each case, except as would be material and adverse to Acquiror and Merger Sub, taken as a whole.
Contracts; No Defaults. (a) Section 3.15(a) of the Sellers’ Disclosure Schedule contains a complete and accurate list, and Sellers have delivered or made available to Buyer true and complete copies, of (each, a “Company Material Contract”):
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by or to the Company, or that was not entered into in the Ordinary Course of Business, of an amount or value in excess of $20,000;
(ii) each Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(iii) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(iv) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(v) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(vi) each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or limit the freedom of the Company to engage in any line of business or to compete with any Person;
(vii) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Company to be responsible for consequential damages;
(viii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company other than in the Ordinary Course of Business; and
Contracts; No Defaults. (a) Section 3.14(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of each Applicable Contract whether for performance of services, delivery of goods or materials, capital expenditures or otherwise, which will be binding on the Company after the Closing.
(b) Except as set forth in Section 3.14 of the Disclosure Letter, each Contract identified or required to be identified in Section 3.14 of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(c) Except as set forth in Section 3.14 of the Disclosure Letter:
(i) the Company is, and at all times since the date of its formation has been, in full compliance with all applicable terms and requirements of each Contract under which the Company has or had any obligation or liability or by which the Company or any of the assets owned or used by the Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since the date of its formation has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) the Company has not given to or received from any other Person, at any time since the date of its formation, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(d) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any amounts paid or payable to the Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, no such Person has made written demand for such renegotiation.
Contracts; No Defaults. Schedule 3(v) attached hereto contains a complete and accurate list, and the Company has made available to the Purchaser true and complete copies, of:
(i) each Applicable Contract (as defined below) that involves performance of services or delivery of goods or materials of an amount or value in excess of $25,000;
(ii) each Applicable Contract that was not entered into in the ordinary course of business or is not cancelable by the Company or a subsidiary of the Company with no penalty upon advance notice of 30 days or less and that involves expenditures or receipts of the Company or its subsidiaries in excess of $5,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $5,000 and with terms of less than one year);
(iv) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company or any of its subsidiaries with any other person or entity;
(v) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any of the Company and its subsidiaries or any affiliate of the foregoing or limit the freedom of any of the Company and its subsidiaries or any affiliate of the foregoing to engage in any line of business or to compete with any person or entity;
(vi) each employment or consulting agreement of the Company and its subsidiaries;
(vii) each Applicable Contract providing for payments to or by any person or entity based on sales, purchases, or profits, other than direct payments for goods;
(viii) each power of attorney executed by any of the Company and its subsidiaries that is currently effective and outstanding;
(ix) each Applicable Contract entered into other than in the ordinary course of business that contains or provides for an express undertaking by any of the Company and its subsidiaries to be responsible for consequential damages;
(x) each Applicable Contract for capital expenditures in excess of $25,000;
(xi) each written warranty, guaranty, and other similar undertaking with respect to contractual performance extended by any of the Company and its subsidiaries other than i...
Contracts; No Defaults. 44 3.18 Insurance.....................................................................................45 3.19