Material Project Documents (a) The Company shall at all times (i) perform and observe all of the covenants under the Material Project Documents to which it is a party and take reasonable actions to enforce all of its rights thereunder, other than to the extent the same could not reasonably be expected to have a Material Adverse Effect, (ii) subject to the provisions of clause (b) of this Section 9.8, maintain the System Leases (other than Leases constituting System Leases only pursuant to clause (5) of the definition thereof) in full force and effect, and (iii) maintain the Leases (other than the System Leases referred to in the foregoing clause (ii) of this Section 9.8(a)) to which it or any of its Subsidiaries is a party in full force and effect, except to the extent the same could not reasonably be expected to have a Material Adverse Effect.
(b) If the term of a Lease with the Company or one of its Subsidiaries expires and the Qualified Lessee under such Lease has either ceased operating the related assets or has ceased paying rent as required under the applicable Lease, the Company shall, or shall cause a Subsidiary, as applicable, to enter into a supplement or a new Lease with respect to the related leasehold assets with a Qualified Lessee that provides for rent that, when combined with all other expected revenue, will, in the reasonable judgment of the Company, as of the commencement date of such supplement or new Lease, generate sufficient revenue to satisfy the requirements of Section 9.9 and will not otherwise result in a materially worse position for the Company as compared to the terms of the applicable expired Lease. Each such new Lease shall have a term of at least five years. Notwithstanding the foregoing, if (i) such expired Lease relates to transmission and/or distribution assets that are not generating significant revenue, (ii) the failure to renew such Lease would not constitute a Material Adverse Effect and (iii) the Company reasonably believes it will generate sufficient revenue and hold sufficient assets (without giving effect to the leasehold assets with respect to such Lease) to satisfy the requirements of Section 9.9, then this Section 9.8(b) will not require a supplement or new lease with respect to such leasehold assets.
Performance of Material Contracts Perform and observe all the terms and provisions of each Material Contract to be performed or observed by it, maintain each such Material Contract in full force and effect, enforce each such Material Contract in accordance with its terms, take all such action to such end as may be from time to time requested by the Administrative Agent and, upon request of the Administrative Agent, make to each other party to each such Material Contract such demands and requests for information and reports or for action as any Loan Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect.
Amendment of Material Documents No Loan Party will, nor will it permit any Subsidiary to, amend, modify or waive any of its rights under (a) any agreement relating to any Subordinated Indebtedness, or (b) its charter, articles or certificate of organization or incorporation and bylaws or operating, management or partnership agreement, or other organizational or governing documents, to the extent any such amendment, modification or waiver would be adverse to the Lenders.
Material Contract Defaults The Company is not in default in any material respect under the terms of any outstanding contract, agreement, lease, or other commitment which is material to the business, operations, properties, assets, or financial condition of either of them, and there is no event of default or other event which, with notice or lapse of time or both, would constitute a default in any material respect under any such contract, agreement, lease, or other commitment in respect of which the Company has not taken adequate steps to prevent such a default from occurring.
Material Contracts; Defaults (a) Other than as disclosed in the Company Reports filed prior to the date hereof or as set forth in Company Disclosure Schedule 3.13, neither 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) (i) with respect to the employment of any directors, officers, employees or consultants, (ii) which would entitle any present or former director, officer, employee or agent of Company or any of its Subsidiaries to indemnification from Company or any of its Subsidiaries, (iii) the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, 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, (iv) which grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Company and or Subsidiaries; (v) which provides for payments to be made by Company or any of its Subsidiaries upon a change in control thereof; (vi) which provides for the lease of personal property having a value in excess of $25,000 individually or $100,000 in the aggregate; (vii) which relates to capital expenditures and involves future payments in excess of $10,000 individually or $50,000 in the aggregate; (viii) which relates to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of Company’s business; (ix) which is not terminable on sixty (60) days or less notice and involving the payment of more than $25,000 per annum; or (x) which materially restricts the conduct of any business by Company of any of its Subsidiaries (collectively, “Material Contracts”). Company has previously delivered to Buyer true, complete and correct copies of each such document.
(b) Neither Company nor any of its Subsidiaries is in default under any contract, agreement, commitment, arrangement, lease, insurance policy or other instrument to which it is a party, by which its assets, business, or operations may be bound or affected, or under which it or its 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. No power of attorney or similar authorization given directly or indirectly by Company is currently outstanding.
Company Material Contracts (a) Section 3.22(a) of the Company Disclosure Letter sets forth a true, correct and complete list, and the Company has made available to Parent true, correct and complete copies, of each Contract, including amendments thereto, to which the Company or any of the Company Subsidiaries is a party or by which it is bound or to which any of their respective assets are subject, as of the date of this Agreement, that:
(i) is a partnership, joint venture, strategic alliance, collaboration, co-promotion, profit-sharing, joint research and development or similar arrangement, or provides for or governs the formation, creation, operation, management or control of such arrangement;
(ii) provides for the creation, incurrence, assumption or guarantee of or otherwise relates to Indebtedness of the Company or any Company Subsidiary, in each case, for borrowed money;
(iii) grants any rights of first refusal, rights of first negotiation, exclusivity or other similar rights or options to any person with respect to the sale of any of the material properties or assets (including material Owned Company Intellectual Property) of the Company or any Company Subsidiary;
(iv) provides for the acquisition or disposition (whether by merger, sale of stock, sale of assets, or otherwise) of any interest in any person or any business or division thereof, or a material portion of the assets of any person, other than this Agreement, (A) entered into since January 1, 2021 and which involves an asset value in excess of $100,000 or (B) pursuant to which any material earn-out, deferred or contingent payment or indemnification obligations remain outstanding;
(v) make any investment in, or loan or capital contribution to, any person (other than the Company or any Company Subsidiary) and other than (i) extensions of credit in the ordinary course of business consistent with past practice and (ii) investments in marketable securities in the ordinary course of business;
(vi) provides for the settlement of any Proceeding (A) which (x) will involve payment obligations after the date hereof in excess of $50,000 or (y) imposes any continuing material non-monetary obligations on the Company or any Company Subsidiary including any monitoring or reporting obligations to any other person, (B) with respect to which conditions precedent to the settlement have not been satisfied or (C) which materially affects the conduct of the Company’s or any Company Subsidiary’s business;
(vii) contains any provision or covenant (A) limiting in any material respect the ability of the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) to (x) sell any products or services of or to any other person or in any geographic region (or subject the Company or any Company Subsidiary to exclusivity obligations), (y) engage in any line of business, or (z) compete with or to obtain products or services from any person, or limiting the ability of any person to provide products or services to the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries), (B) that has any “most favored nations” or similar terms and conditions (including with respect to pricing) granted by the Company or any Company Subsidiary, (C) that has any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire any assets or securities of another person, (D) that requires any material benefit to be granted to a third party, or material right be lost by the Company or any Company Subsidiary (or, after the consummation of the Merger, Parent, the Surviving Corporation or any of their respective Subsidiaries) as a result of competing or engaging in any line of business or with any person or in any geographic area;
(viii) involves sole-source or single-source suppliers of material tangible products or services (including any of the Company’s products or services);
(ix) is a license or other Contract relating to any Intellectual Property Rights granted by any other person to the Company or any of the Company Subsidiaries that is, individually or in the aggregate, material to the Company and the Company Subsidiaries, but excluding Incidental Contracts;
(x) is a license or other Contract relating to any Intellectual Property Rights that, individually or in the aggregate, are material to the Company and the Company Subsidiaries and granted by the Company or any of the Company Subsidiaries to any other person, including any Contracts whereby the Company or a Company Subsidiary is developing any Intellectual Property Rights for any other person, but excluding Incidental Contracts;
(xi) any Contract containing covenants limiting the freedom of the Company or any of the Company Subsidiaries to use, assert, enforce, or otherwise exploit any Owned Company Intellectual Property that is, individually or in the aggregate, material to the Company and the Company Subsidiaries (including, but not limited to, any settlement agreement or co-existence agreement), but excluding Incidental Contracts;
(xii) is a Contract between the Company or any Company Subsidiary and any sales representative, distributor, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor agreement that is material for the use or distribution of Owned Company Intellectual Property or Company products;
(xiii) is a Contract that involves performance of services or delivery of goods, materials, supplies or equipment or development, consulting or other services commitments by the Company or any Company Subsidiary, or the payment therefor by the Company or any Company Subsidiary, providing for either (A) recurring annual payments after the date hereof of $100,000 or (B) aggregate payments or potential aggregate payments after the date hereof of $150,000 or more;
(xiv) is a collective bargaining Contract or Contract with any labor organization, union or association to which the Company or any Company Subsidiary is a party (each, a “CBA”);
(xv) is an employment agreement or Contract for the employment or engagement of any officer, individual employee, consultant or other person on a full time, part time, consulting or other basis (A) providing annual compensation (whether cash and/or otherwise) in excess of $100,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated by this Agreement or (C) otherwise restricting the Company’s (or any Company Subsidiary’s) ability to terminate the employment or engagement of any employee or consultant at any time or any lawful reason or for no reason without penalty or liability;
(xvi) are severance agreements, programs, policies, arrangements or Contracts providing any individual with severance payments and/or benefits in excess of $50,000 in the aggregate;
(A) has been entered into with a Governmental Entity or, to the knowledge of the Company, is any material subcontract (at any tier) under or for the purpose of fulfilling a contract or order from a Governmental Entity as the ultimate customer, including, for the avoidance of doubt, any Company Government Contract or Company Government Bid or (B) to the knowledge of the Company, is financed by any Governmental Entity and subject to the rules and regulations of any Governmental Entity concerning procurement;
(xviii) relates to any stockholders’, investor rights, registration rights, tax receivables or similar or related arrangement, or any Contract or arrangement relating to the exercise of any voting rights in respect of any Company Securities;
(xix) has been entered into between the Company or any Company Subsidiary, on the one hand, and any officer, director or affiliate of the Company or any Company Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, including any Contract pursuant to which the Company or any Company Subsidiary has an obligation to indemnify such officer, director, affiliate or family member (excluding, for the avoidance of doubt, any Company Benefit Plans and governing documents of the Company or any Company Subsidiary);
(xx) contains (A) any provision that requires the purchase of all or a given portion of the Company’s or any Company Subsidiary’s requirements for products or services from a given third party, or any other similar provision (including non-cancelable purchase obligations), (B) any provision that grants material guaranteed availability of supply of Company products for a period greater than twenty-four (24) months, or (C) guarantees priority or prices for a period of greater than twenty-four (24) months;
(xxi) contains any provision allowing a “major antenna product distributor” to return product;
(xxii) is a lease, sublease, occupancy agreement or other agreement (whether or real or personal property) to which the Company or any Company Subsidiary is a party as either lessor or lessee, providing for either (A) annual payments after the date hereof of $50,000 or more or (B) aggregate payments after the date hereof of $100,000 or more; or
(xxiii) creates or grants a material Lien, other than Permitted Liens and other than Contracts with customers entered into in the ordinary course of business consistent with past practice.
(b) Each Contract required to be listed in Section 3.22(a) of the Company Disclosure Letter, whether or not set forth in such section of the Company Disclosure Letter, is referred to in this Agreement as a “Company Material Contract” (with each such Contract listed under the corresponding clause of Section 3.22(a) of the Company Disclosure Letter to which such Contract is relevant). Neither the Company nor any Company Subsidiary is, with or without notice, or lapse of time, or both, in breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that, with or without notice, or lapse of time or both, would constitute a material breach or material default thereunder by the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has received notice of such an event. To the knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default, individually or together with other such breaches or defaults, would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of, and is in full force and effect with respect to, the Company and any Company Subsidiary that is a party thereto and, to the knowledge of the Company, each other party thereto, except for such failure that would not have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception. The Company has made available to Parent true, correct and complete copies of Company Material Contracts.
Other Material Contracts Company has no lease, contract or commitment of any nature affecting the Business and involving consideration or other expenditure in excess of $100,000.00, or involving performance over a period of more than twelve (12) months, or which is otherwise individually material to the operations of the Business, except for purchase orders taken in the ordinary course of business and except as explicitly described in Schedule 5.11(l) or in any other Schedule of the Disclosure Schedule.
Notice of Default, Litigation and Material Adverse Effect Promptly, and in any event within three Business Days after any officer of Holdings or any of its Subsidiaries obtains knowledge thereof, notice of (i) the occurrence of any event which constitutes a Default or an Event of Default, (ii) any litigation or governmental investigation or proceeding pending against Holdings or any of its Subsidiaries (x) which, either individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect or (y) with respect to any Credit Document, or (iii) any other event, change or circumstance that has had, or would reasonably be expected to have, a Material Adverse Effect.
Intellectual Property Infringement Indemnification 1.1 We will defend you against any third party claim(s) that the Tyler Software or Documentation infringes that third party’s patent, copyright, or trademark, or misappropriates its trade secrets, and will pay the amount of any resulting adverse final judgment (or settlement to which we consent). You must notify us promptly in writing of the claim and give us sole control over its defense or settlement. You agree to provide us with reasonable assistance, cooperation, and information in defending the claim at our expense.
1.2 Our obligations under this Section G(1) will not apply to the extent the claim or adverse final judgment is based on your use of the Tyler Software in contradiction of this Agreement, including with non-licensed third parties, or your willful infringement.
1.3 If we receive information concerning an infringement or misappropriation claim related to the Tyler Software, we may, at our expense and without obligation to do so, either: (a) procure for you the right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional equivalent, in which case you will stop running the allegedly infringing Tyler Software immediately. Alternatively, we may decide to litigate the claim to judgment, in which case you may continue to use the Tyler Software consistent with the terms of this Agreement.
1.4 If an infringement or misappropriation claim is fully litigated and your use of the Tyler Software is enjoined by a court of competent jurisdiction, in addition to paying any adverse final judgment (or settlement to which we consent), we will, at our option, either: (a) procure the right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional equivalent. This section provides your exclusive remedy for third party copyright, patent, or trademark infringement and trade secret misappropriation claims.
Project Documents In addition to any other pertinent and necessary Project documents, the following documents shall be used in the development of the Project:
A. TxDOT 2011 Texas Manual of Uniform Traffic Control Devices for Streets and Highways, including latest revisions
B. Texas Department of Transportation's Standard Specifications for Construction of Highways, Streets, and Bridges, 2014 (English units)
