Certain Contracts. (a) Except as disclosed in Section 4.13(a) of the Parent Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent or any of its Subsidiaries, (II) requires referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material. (b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party. (c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement. (d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereof.
Appears in 4 contracts
Samples: Merger Agreement (ConnectOne Bancorp, Inc.), Merger Agreement (First of Long Island Corp), Merger Agreement (ConnectOne Bancorp, Inc.)
Certain Contracts. (a) Except PIF has Previously Disclosed a complete and accurate list of, and true and complete copies have been delivered or made available (including via EXXXX) to SLIC of, all Contracts (collectively, the “PIF Material Contracts”) to which, as disclosed in Section 4.13(aof the date of this Agreement, PIF or any of its Consolidated Subsidiaries is a party, or by which PIF or any of its Consolidated Subsidiaries may be bound, or, to the knowledge of PIF, to which it or any of its Consolidated Subsidiaries or their respective assets or properties may be subject, with respect to:
(i) any Contract that is a “material contract” within the meaning of Item 601(b)(10) of the Parent Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement SEC’s Regulation S-K or other instrument to which it is a party that is material to the PIF or its financial condition or results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, ;
(ii) no commitmentother than Contracts entered into in the ordinary course of business providing for the obligation or commitment of PIF to provide funding to its portfolio investments, agreement any loans or credit agreements, mortgages, indentures and other instrument agreements and instruments pursuant to which Parent any Indebtedness of PIF or any of its Consolidated Subsidiaries in an aggregate principal amount in excess of $500,000 is a party outstanding or may be incurred, or any guarantee by which any of them is bound limits the freedom of Parent PIF or any of its Consolidated Subsidiaries to compete of any Indebtedness in any line an aggregate principal amount in excess of business, in any geographic area or with any person, and $500,000;
(iii) neither Parent nor other than Contracts entered into in the ordinary course of business providing for the obligation or commitment of PIF to provide funding to its portfolio investments, any Contract that creates future payment obligations in excess of $250,000 and that by its terms does not terminate, or is not terminable upon notice, without penalty within ninety (90) days or less, or any Contract that creates or would create a Lien on any asset of PIF or its Consolidated Subsidiaries is (other than Liens consisting of restrictions on transfer agreed to in respect of investments entered into in the ordinary course of business or as would not, individually or in the aggregate, reasonably be expected to be material to PIF and its Consolidated Subsidiaries, taken as a party to whole);
(Aiv) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right except with respect to investments set forth in the PIF SEC Reports, any partnership, limited liability company, joint venture or other similar Contract that is not entered into in the ordinary course of business and is material to PIF and its Consolidated Subsidiaries, taken as a whole;
(v) any non-competition or non-solicitation Contract or any other Contract that limits, purports to limit, or would reasonably be expected to limit in each case in any material respect the manner in which, or the localities in which, any material business of PIF and its Consolidated Subsidiaries, taken as a whole, is or could be conducted or the types of business that PIF and its Consolidated Subsidiaries conducts or may conduct;
(vi) any Contract relating to the acquisition or disposition of any business or operations (whether by merger, sale of stock, sale of assets or properties otherwise) involving value in excess of Parent $250,000 (individually or together with all related Contracts) as to which there are any ongoing obligations or that was entered into on or after the Applicable Date other than Contracts entered into in the ordinary course of business with respect to investments set forth in the PIF SEC Reports;
(vii) any Contract that obligates PIF or any of its Consolidated Subsidiaries to conduct any business that is material to PIF and its Consolidated Subsidiaries, (II) requires referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on taken as a priority or exclusive basiswhole, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis with any third party, or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way upon consummation of purchase money obligationthe Mergers, conditional salewill obligate PIF, lease, purchase, guaranty or otherwise, in respect of which the Surviving Company or any Subsidiary is of their Consolidated Subsidiaries to conduct business with any third party on an obligor to exclusive basis; or
(viii) any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed materialGovernmental Entity.
(b) Except Each PIF Material Contract is (x) valid and binding on PIF or its applicable Consolidated Subsidiary and, to PIF’s knowledge, each other party thereto, (y) enforceable against PIF or its applicable Consolidated Subsidiary in accordance with its terms (subject to the Bankruptcy and Equity Exception), and (z) is in full force and effect other than in each case as disclosed would not, individually or in the aggregate, reasonably be expected to be material to PIF and its Consolidated Subsidiaries, taken as a whole. The PIF Advisory Agreement has been approved by the PIF Board and stockholders of PIF in accordance with Section 4.13(b) 15 of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent Investment Company Act. Neither PIF nor any of its SubsidiariesConsolidated Subsidiaries nor, nor to the Knowledge of ParentPIF’s knowledge, any other party thereto, is in material breach of any provisions of or in default (or, with the giving of notice or lapse of time or both, would be in default) under, and has not taken any action resulting in the termination of, acceleration of performance required by, or resulting in a right of termination or acceleration under, any PIF Material Contract other than as would not have a PIF Material Adverse Effect. No PIF Material Contract has been amended, modified or supplemented other than as would not, individually or in the aggregate, reasonably be expected to be material to PIF and its Consolidated Subsidiaries, taken as a whole. No event has occurred with respect to PIF or any of its Consolidated Subsidiaries that, with or without the giving of notice, the lapse of time or both, would constitute a breach or default under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, PIF Material Contract other than as would not, individually or in the payments contemplated by this Agreement.
(d) Each contractaggregate, arrangementreasonably be expected to be material to PIF and its Consolidated Subsidiaries, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein taken as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereofwhole.
Appears in 3 contracts
Samples: Merger Agreement (North Haven Private Income Fund LLC), Merger Agreement (SL Investment Corp.), Agreement and Plan of Merger (SL Investment Corp.)
Certain Contracts. (a) Except for this Agreement and the Transaction Documents and any agreements contemplated hereby or thereby, as disclosed in Section 4.13(a) of the Parent Disclosure Scheduledate hereof, (i) neither Parent Marigold nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Marigold Subsidiaries is a party to or bound by:
(Ai) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right Contract relating to material Indebtedness of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent Marigold or any of the Marigold Subsidiaries (other than such Contracts between Marigold and its wholly owned Subsidiaries, );
(IIii) requires referrals of business or requires Parent any Contract under which Marigold or any of its the Marigold Subsidiaries to make available has directly, or indirectly, made any loan, capital contribution or other investment opportunities to in, any person on a priority or exclusive basis, Person (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits(w) any such Contract pursuant to which there are no outstanding obligations, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving extensions of credit in the payment ordinary course of more than $100,000 or business, (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions investments in marketable securities in the Ordinary Course ordinary course of Businessbusiness, which shall not be deemed material for purposes and (z) investments by Marigold or its wholly owned Subsidiaries in wholly owned Subsidiaries of clause (iMarigold)) shall be deemed material.;
(biii) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule any Contract that limits or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor purports to the Knowledge of Parent, any other party thereto, is in default limit or restrict in any material respect under the ability of Marigold or any of the Marigold Subsidiaries or Affiliates (including New Holdco and its Subsidiaries after the Second Merger) to compete in any business or geographic area;
(iv) any material leasepartnership, contractjoint venture, mortgagelimited liability company or similar Contract;
(v) any Contract that is a local marketing agreement, promissory notejoint sales agreement, deed shared services agreement or similar agreement;
(vi) any Contract relating to Program Rights under which it would reasonably be expected that Marigold and the Marigold Subsidiaries would make annual payments of trust$500,000 or more during any twelve (12) month period or the remaining term of such Contract;
(vii) any network affiliation Contract or similar Contract;
(viii) any Contract relating to cable or satellite transmission or retransmission with MVPDs with more than 10,000 paid subscribers with respect to each Marigold Station;
(ix) any material Barter Agreement;
(x) any material Contract with a Governmental Entity;
(xi) any Contract for the acquisition, loan sale, lease or license of any material business or properties or assets of or by Marigold or any of the Marigold Subsidiaries outside of the ordinary course of business (by merger, purchase or sale of assets or stock) entered into since July 1, 2012 or any Contract for any acquisition of any material business or properties or assets by Marigold or any of the Marigold Subsidiaries pursuant to which Marigold or any of the Marigold Subsidiaries has any outstanding “earn-out” or other commitment obligation to pay consideration;
(except those xii) any Contract governing a Marigold Related Party Transaction;
(xiii) any Contract that would be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) of Marigold;
(xiv) any registration rights agreements with respect to securities of Marigold; or
(xv) any other Contract or series of related Contracts under which Parent it would reasonably be expected that Marigold and the Marigold Subsidiaries would receive or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess annual payments of $50,000 to 1,000,000 or more during any party, including but not limited to, any termination fee, breakup fee twelve (12) month period or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and the remaining term of such party, other than Contract; (the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding Contracts of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is clauses (i) through (xv) above being referred to herein as a the “Parent Contract” Marigold Material Contracts”). Each Marigold Material Contract (including all amendments and supplements thereto) as in effect as of the date hereof. Parent hereof is listed on Section 3.12(a) of the Marigold Disclosure Letter and has previously heretofore been made available to the Company true and complete copies of Montage.
(b) With respect to each Parent Contract in effect as of the date hereofMarigold Material Contracts, (i) except to the extent it has expired in accordance with its terms, such Marigold Material Contract is valid and binding on Marigold or the Marigold Subsidiaries, as applicable (except as may be limited by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the rights of creditors generally and the availability of equitable remedies), (ii) none of Marigold or any of the Marigold Subsidiaries or, to the Knowledge of the Marigold, any other party to such Marigold Material Contract, is in material breach or material violation of, or in material default under, such Marigold Material Contract, and (iii) to the Knowledge of Marigold, no event has occurred which would result in such a material breach or material violation of, or a material default under, such Marigold Material Contract.
Appears in 3 contracts
Samples: Merger Agreement (Media General Inc), Merger Agreement (Meredith Corp), Merger Agreement (Meredith Corp)
Certain Contracts. (a) Except as publicly disclosed in the Hxxxxx United SEC Reports filed prior to the date hereof or as set forth in Section 4.13(a4.14(a) of the Parent Hxxxxx United Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Hxxxxx United nor any of its Subsidiaries is a party to or is bound by any contract, arrangement, commitment or understanding (Awhether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed in whole or in part after the date of this Agreement, (ii) which relates to the incurrence of indebtedness (other than deposit liabilities, advances and loans from the Federal Home Loan Bank and sales of securities subject to repurchase, in each case incurred in the ordinary course of business) by Hxxxxx United or any collective bargaining agreement of its Subsidiaries in the principal amount of $2.0 million or more, including any sale and leaseback transactions, capitalized leases and other similar financing transactions, (Biii) any other agreement or instrument that (I) which grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent Hxxxxx United and its Subsidiaries, (iv) which provides for material payments to be made by Hxxxxx United or any of its SubsidiariesSubsidiaries upon a change in control thereof, (IIv) which is a consulting agreement (including data processing, software programming and licensing contracts) not terminable on 60 days or less notice and involving the payment of more than $2.0 million per annum, (vi) which (A) limits the freedom of Hxxxxx United or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, (B) requires referrals of business or requires Parent Hxxxxx United or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, basis or (IIIC) requires Parent Hxxxxx United or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IVvii) relates to material indebtedness for borrowed money whether directly which involved payments by, or indirectly by way of purchase money obligationto, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company Hxxxxx United or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness of its Subsidiaries in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment fiscal year 2005 of more than $100,000 5 million or (y) with a remaining term of greater than six months and which could reasonably be expected to involve the payment payments during fiscal year 2005 of more than $75,000 5 million (other than contracts relating pursuant to banking credit Loans originated or deposit transactions purchased by Hxxxxx United and its Subsidiaries in the Ordinary Course ordinary course of Business, which shall not be deemed material for purposes of clause (ibusiness consistent with past practice)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) . Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.14(a), whether or not publicly disclosed in the Hxxxxx United SEC Reports filed prior to the date hereof or set forth in Section 4.13 4.14(a) of the Company Hxxxxx United Disclosure Schedule, is referred to herein as an “Hxxxxx United Contract.”
(b) Except as set forth in Section 4.14(b) of the Hxxxxx United Disclosure Schedule, (i) each Hxxxxx United Contract is valid and binding on Hxxxxx United or its applicable Subsidiary and in full force and effect, and, to the Knowledge of Hxxxxx United, is valid and binding on the other parties thereto, (ii) Hxxxxx United and each of its Subsidiaries and, to the Knowledge of Hxxxxx United, each of the other parties thereto, has in all material respects performed all obligations required to be performed by such party to date under each Hxxxxx United Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a “Parent material breach or default on the part of Hxxxxx United or any of its Subsidiaries or, to the Knowledge of Hxxxxx United, any other party thereto, under any such Hxxxxx United Contract” , except, in effect each case, where such invalidity, failure to be binding, failure to so perform or breach or default, individually or in the aggregate, would not have or reasonably be expected to have a Material Adverse Effect on Hxxxxx United.
(c) Section 4.14(c) of the Hxxxxx United Disclosure Schedule contains a schedule showing the present value of the monetary amounts payable as of the date hereof. Parent has previously made available specified in such schedule, whether individually or in the aggregate (including good faith estimates of all amounts not subject to the Company true and complete copies of each Parent Contract in effect precise quantification as of the date hereofof this Agreement, such as tax indemnification payments in respect of income or excise taxes), under (i) any employment, change-in-control, severance or similar contract or plan with or which covers any present or former director, officer or employee of Hxxxxx United or any of its Subsidiaries who may be entitled to any such amount (other than pursuant to the Hxxxxx United Severance Plan) and identifying the types and estimated amounts of the in-kind benefits due under any Hxxxxx United Benefit Plans or Hxxxxx United Contract (other than a tax-qualified plan) for each such person, specifying the assumptions in such schedule and (ii) the Hxxxxx United Severance Plan, as to all directors and officers with a title of Senior Vice President or above.
Appears in 3 contracts
Samples: Merger Agreement (Hudson United Bancorp), Merger Agreement (Toronto Dominion Bank), Merger Agreement (Td Banknorth Inc.)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a3.13(a) of the Parent BancPlus Disclosure Schedule, (i) neither Parent BancPlus nor any of its Subsidiaries is in breach a party to, is bound or affected by, receives or is obligated to pay compensation or benefits under (i) any agreement, arrangement or commitment, including any agreement, indenture or other instrument relating to the borrowing of money by BancPlus or any of the Subsidiaries or the guarantee by BancPlus or any of the Subsidiaries of any commitmentobligation except for deposit liabilities, federal funds purchased, borrowings from the Federal Home Loan Bank and securities repurchase agreements entered into in the ordinary course of business; (ii) any contract, agreement or other instrument understanding with a labor union; (iii) any agreement, arrangement or understanding pursuant to which it is a party that is material any payment (whether of severance pay or otherwise) became or may become due to the results any director, officer or employee of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent BancPlus or any of its the Subsidiaries upon execution of this Agreement or upon or following consummation of the transactions contemplated by this Agreement (either alone or in connection with the occurrence of any additional acts or events); (iv) any agreement, arrangement or understanding to which BancPlus or any of the Subsidiaries is a party or by which any of them is bound which limits the freedom of Parent BancPlus or any of its the Subsidiaries to compete in any line of business, in any geographic area business or with any person, or that involve any restriction of the geographic area in which, or method by which, they may carry on their business (other than as may be required by law or any Governmental Entity); (v) any joint venture, partnership or similar agreement, arrangement or understanding providing for the sharing of profits, losses, costs or liabilities by BancPlus or BankPlus with any other person; (vi) any purchase and {JX489484.11} PD.35183901.7 assumption agreement with the FDIC; or (iiivii) neither Parent nor any other agreement, arrangement or understanding to which BancPlus or any of its the Subsidiaries is a party and which is material to the business, operations assets, liabilities, condition (Afinancial or otherwise) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right results of first refusal, right operations of first offer or similar right with respect to any material assets or properties of Parent or any of its BancPlus and the Subsidiaries, taken individually or as a whole (II) requires referrals of business excluding loan agreements or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions accounts); in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) each of the Parent Disclosure Schedule foregoing cases whether written or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) oral. Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.13(a), whether or not set forth in Section 4.13 of the Company BancPlus Disclosure Schedule, is referred to herein as a “Parent BancPlus Material Contract” in effect as .”
(b) Neither BancPlus nor any of its Subsidiaries has knowledge of, or has received written notice of, any default or any violation of any BancPlus Material Contract by any of the other parties thereto which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on BancPlus. To BancPlus’s knowledge, each third-party counterparty to each BancPlus Material Contract has in all respects performed all obligations required to be performed by it to date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereofunder such BancPlus Material Contract.
Appears in 2 contracts
Samples: Share Exchange and Merger Agreement (Bancplus Corp), Share Exchange and Merger Agreement (Bancplus Corp)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) As of the Parent Disclosure Scheduledate hereof, (i) other than any AMNB Benefit Plan, neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent AMNB nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral):
(i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) that is an employment, severance, termination, consulting or retirement contract;
(iii) with or to a labor union or guild (including any collective bargaining agreement);
(iv) which contains a non-compete or client, employee or customer non-solicit requirement or any other provision, in each case, that materially restricts the ability of AMNB or any of its Subsidiaries (or upon consummation of the Merger, the Surviving Corporation, Buyer or any of their respective Subsidiaries) to engage in any line of business or in any geographic region (in each case, other than non-exclusive, inbound licenses to Intellectual Property rights that are subject to territorial limitations and covenants not to assert, sue or challenge);
(v) (A) that relates to the incurrence of indebtedness by AMNB or any collective bargaining agreement of its Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing arrangements (other than deposit liabilities, trade payables, federal funds purchased, advances and loans from any Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the Ordinary Course), or (B) that provides for the guarantee, credit support, indemnification, assumption or endorsement by AMNB or any of its Subsidiaries of, or any similar commitment by AMNB or any of its Subsidiaries with respect to, the obligations, liabilities or indebtedness of any other agreement person, in the case of each of clauses (A) and (B), in the principal amount of $500,000 or instrument more;
(vi) relating to the purchase or sale of any goods or services by AMNB or its Subsidiaries (other than contracts entered into in the Ordinary Course and involving payments under any individual contract not in excess of $500,000 over its remaining term or involving Loans, borrowings or guarantees originated or purchased by any of AMNB or its Subsidiaries in the Ordinary Course);
(vii) entered into by AMNB or any of its Subsidiaries in connection with an interest rate, exchange rate or commodities swap, option, future, forward or other derivative or hedging transaction or risk management arrangement, in each case with a notional value in excess of $1,000,000;
(viii) which limits the payment of dividends by AMNB or any of its Subsidiaries;
(ix) that (IA) grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of Parent AMNB and its Subsidiaries, taken as a whole or (B) contains any exclusive dealing or “most favored nation” or similar provision granted by AMNB or any of its Subsidiaries and which is not terminable at will (subject to the giving of notice, passage of time, or both) by AMNB;
(x) that involves the payment of more than $250,000 per annum (other than any such contracts which are terminable by AMNB or any of its Subsidiaries on sixty (60) days or less notice without any required payment or other conditions, other than the condition of notice);
(xi) pursuant to which any of AMNB or its Subsidiary has agreed with any third parties to become a member of, manage or control a joint venture, partnership, limited liability company or other similar entity;
(xii) that is a settlement, consent or similar agreement and contains any material continuing obligations of AMNB or any of its Subsidiaries, ;
(IIxiii) requires referrals of business that provides for indemnification by AMNB or requires Parent or any of its Subsidiaries to make available investment opportunities to of any person on a priority or exclusive basisperson, (III) requires Parent or except for any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements such contracts entered into in the Ordinary Course Course;
(xiv) between AMNB or its Subsidiaries, on the one hand, and (A) any officer or director of Business. For purposes of clause AMNB or its Subsidiaries, or (iB) above, any contract (x) record or beneficial owner of five percent (5%) or more of the voting securities of AMNB, (y) affiliate or family member of any such officer, director or record or beneficial owner, or (z) any other affiliate of AMNB, on the other hand, except those of a type available to employees of AMNB generally;
(xv) containing any standstill or similar agreement pursuant to which AMNB or its Subsidiaries have agreed not to acquire assets or equity interests of another person;
(xvi) that provides for (A) the disposition of any significant portion of the assets or business of AMNB or its Subsidiaries, (B) the acquisition, directly or indirectly, of a material portion of the assets or business of any other person (whether by merger, sale of stock or assets or otherwise), or (C) related to any disposition or acquisition that contains continuing representations, covenants, indemnities or other obligations (including “earn out” or other contingent payment obligations);
(xvii) that is a consulting contract or data processing, software programming or licensing contract involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 250,000 per annum (other than any such contracts relating to banking credit which are terminable by AMNB or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, Subsidiaries on thirty (30) days or less notice without any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan required payment or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such partyconditions, other than the payments contemplated by this Agreement.condition of notice); and
(dxviii) that is material to AMNB or its Subsidiaries or their respective business or assets and not otherwise entered into in the Ordinary Course. Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.14(a), whether or not set forth in Section 4.13 of the Company AMNB Disclosure Schedule, Schedule is referred to herein as a “Parent AMNB Contract.” in effect as of the date hereof. Parent AMNB has previously made available to the Company Buyer true and complete copies of each Parent AMNB Contract in effect as of the date hereof.
(i) Each AMNB Contract is legal, valid and binding on AMNB or one of its Subsidiaries, as applicable, and in full force and effect and is enforceable in accordance with its terms, (ii) AMNB and each of its Subsidiaries have complied with and performed in all material respects all obligations required to be complied with or performed by any of them to date under each AMNB Contract, (iii) to the knowledge of AMNB, each third-party counterparty to each AMNB Contract has complied with and performed all obligations required to be complied with and performed by it to date under such AMNB Contract, (iv) neither AMNB nor any of its Subsidiaries has knowledge of, or has received written notice of, any violation of any AMNB Contract by any of the other parties thereto, (v) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a breach or default on the part of AMNB or any of its Subsidiaries, or to the knowledge of AMNB, any other party thereto, of or under any such AMNB Contract, (vi) there is not pending or, to the knowledge of AMNB, threatened cancellations of any AMNB Contract and (vii) neither AMNB nor any of its Subsidiaries have repudiated or waived any material provision of AMNB Contract. All of the indebtedness of AMNB and its Subsidiaries for money borrowed is pre-payable at any time by AMNB or its Subsidiaries without penalty or premium.
Appears in 2 contracts
Samples: Merger Agreement (American National Bankshares Inc.), Merger Agreement (Atlantic Union Bankshares Corp)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a) of the Parent Disclosure ScheduleSchedule and excluding any Parent Benefit Plan, (i) neither Parent nor any as of its Subsidiaries is in breach of any commitmentthe date hereof, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (Awhether written or oral):
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC),
(ii) that contains a non-compete or client or customer non-solicit requirement, in any collective bargaining case, that restricts in any material respect the conduct of any line of business by Parent or any of its Subsidiaries,
(iii) that provides for the incurrence of indebtedness for borrowed money of Parent or any of its Subsidiaries or the guaranty of indebtedness for borrowed money of third parties, in each case, in an aggregate principal amount in excess of $10,000,000 (other than securities sold under agreement or to repurchase, in each case, incurred in the ordinary course of business consistent with past practices),
(Biv) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of Parent or its Subsidiaries,
(v) that is material and obligates Parent or any of its Subsidiaries to conduct business with any third party on a preferential or exclusive basis or that contains “most favored nation” or similar covenants,
(vi) other than entered into in the ordinary course of business consistent with past practices, that relates to the acquisition or disposition of any assets or properties any business of Parent or any of its Subsidiaries with a purchase price in excess of $50,000,000 (whether by merger, sale of stock, sale of assets or otherwise) since January 1, 2016,
(vii) that is a settlement, consent or similar agreement and contains any material continuing obligations of Parent or any of its Subsidiaries,
(viii) that limits in any material respect the payment of dividends by Parent or any of its Subsidiaries,
(ix) that is a material interest rate swap, cap, floor or option agreement, a futures or forward contract or relates to any other material interest rate, currency, commodity or other hedging or derivative transaction or risk management arrangement, or
(IIx) requires referrals of business or requires that is a contract pursuant to which Parent or any of its Subsidiaries receives from any third party a license or similar right under any Intellectual Property Rights that are material to make available investment opportunities to any person on the business of Parent and its Subsidiaries, taken as a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or morewhole, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Businesslicenses with respect to software that is generally commercially available. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.13(a) in existence as of the date hereof (excluding any Parent Benefit Plan), whether or not set forth in Section 4.13 of the Company Parent Disclosure Schedule, is referred to herein as a “Parent Contract” (provided that, for purposes of Section 4.13(b), the term “Parent Contract” will include any of the above entered into after the date hereof that would have been a Parent Contract if it had been in effect existence as of the date hereof).
(b) In each case, except as would not reasonably be likely to have, either individually or in the aggregate, a Material Adverse Effect on Parent, (i) each Parent Contract is, assuming due authorization, execution and delivery by the third-party counterparties thereto, valid and binding on Parent or one of its Subsidiaries, as applicable (except as limited by the Enforceability Exceptions) and in full force and effect (unless such Parent Contract expires in accordance with its terms after the date of this Agreement or is terminated after the date of this Agreement in accordance with its terms and Section 5.3), (ii) each of Parent and its Subsidiaries has performed all obligations required to be performed by it prior to the date hereof under each Parent Contract, (iii) to the knowledge of Parent, each third-party counterparty to each Parent Contract has performed all obligations required to be performed by it to date under such Parent Contract, (iv) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a default on the part of Parent or any of its Subsidiaries under any such Parent Contract, and (v) neither Parent nor any of its Subsidiaries knows of, or has received written notice of, any violation of any Parent Contract by any of the other parties thereto. Parent has previously made available to the Company true prior to the date hereof true, correct and complete copies of each Parent Contract in effect existence as of the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (Fidelity National Information Services, Inc.), Merger Agreement (Worldpay, Inc.)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a4.14(a) of the Parent Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement Schedule or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or as filed with any personParent Reports, and (iii) as of the date of this Agreement, neither Parent nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (Awhether written or oral, but excluding any Parent Benefit Plan):
(i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) which contains a provision that materially restricts the conduct of any line of business by Parent or any of its Subsidiaries or upon consummation of the Mergers will materially restrict the ability of the Surviving Entity or any of its affiliates to engage in any line of business or in any geographic region;
(iii) which is a collective bargaining agreement or similar agreement with any labor union or guild;
(iv) any of the benefits of or obligations under which will arise or be increased or accelerated by the occurrence of the execution and delivery of this Agreement, receipt of the Requisite Parent Vote or the announcement or consummation of any of the transactions contemplated by this Agreement, or under which a right of cancellation or termination will arise as a result thereof, 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, where such increase or acceleration of benefits or obligations, right of cancellation or termination, or change in calculation of value of benefits would reasonably be expected to have a Material Adverse Effect on Parent;
(v) (A) that relates to the incurrence of indebtedness by Parent or any of its Subsidiaries, including any sale and leaseback transactions, capitalized leases (except for facility leases) and other similar financing arrangements (other than deposit liabilities, trade payables, federal funds purchased, federal funds borrowings, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business), or (B) that provides for the guarantee, support, assumption or endorsement by Parent or any of its Subsidiaries of, or any similar commitment by Parent or any of its Subsidiaries with respect to, the obligations, liabilities or indebtedness of any other agreement person, in the case of each of clauses (A) and (B), in the principal amount of $5,000,000 or instrument more;
(vi) that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of Parent or its Subsidiaries, taken as a whole;
(vii) that is a vendor agreement which creates future payment obligations in excess of $5,000,000 per annum or a servicing agreement pursuant to which obligations may exceed $5,000,000 per annum (in each case other than any such contracts which are terminable by Company or any of its Subsidiaries on ninety (90) days or less notice without penalty, other than the payment of any outstanding obligation at the time of termination);
(viii) that is a settlement, consent or similar agreement and contains any material continuing obligations of Parent or any of its Subsidiaries; or
(ix) that relates to the acquisition or disposition of any person, (II) requires referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings asset and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) have or arrangement to which Parent is may have a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company material obligation or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) liability. Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.14(a), whether or not set forth in Section 4.13 of the Company Parent Disclosure Schedule, is referred to herein in this Agreement as a “Parent Contract.” in effect as of the date hereof. Parent has previously made available to the Company true true, correct and complete copies of each Parent Contract in effect as of the date hereofof this Agreement.
(b) (i) Each Parent Contract is valid and binding on Parent or one of its Subsidiaries, as applicable, and in full force and effect, except as would not reasonably be expected to have a Material Adverse Effect on Parent, (ii) Parent and each of its Subsidiaries have in all material respects complied with and performed all obligations required to be complied with or performed by any of them to date under each Parent Contract, except where such noncompliance or nonperformance would not reasonably be expected to have a Material Adverse Effect on Parent, (iii) to the knowledge of Parent, each third-party counterparty to each Parent 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 Parent Contract, except where such noncompliance or nonperformance would not reasonably be expected to have a Material Adverse Effect on Parent, (iv) neither Parent nor any of its Subsidiaries has knowledge of any violation of any Parent Contract by any of the other parties thereto which would reasonably be expected to have a Material Adverse Effect on Parent and (v) 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 Parent or any of its Subsidiaries or, to the knowledge of Parent, any other party thereto, of or under any such Parent Contract, except where such breach or default would not reasonably be expected to have a Material Adverse Effect on Parent.
Appears in 2 contracts
Samples: Merger Agreement (HomeStreet, Inc.), Merger Agreement (Firstsun Capital Bancorp)
Certain Contracts. (a) Except as publicly disclosed in the Providian SEC Reports filed prior to the date hereof or as set forth in Section 4.13(a) of the Parent Providian Disclosure Schedule, (i) as of the date hereof neither Parent Providian nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party to or by which any of them is bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement, (ii) which limits the freedom of Parent Providian or any of its Subsidiaries to compete in any line of businessbusiness or, to the knowledge of Providian, upon consummation of the Merger will restrict the ability of the Surviving Company and its Subsidiaries to engage in any line of business in any geographic area or with any person, and (iii) neither Parent nor or which requires exclusive referrals of business or requires Providian or any of its Subsidiaries is to offer specified products or services to their customers, depositors or Cardholders (as hereinafter defined) on a party priority or exclusive basis, (iii) providing for the transfer or delivery of, or access to, any Cardholder list or other data with respect to the customers of Providian or its Subsidiaries (Aother than to service providers in the ordinary course of business and subject to customary confidentiality agreements meeting all applicable regulatory requirements, including those set forth in OCC Bulletin 2005-13 (12 CFR §30, Appendix B)), (iv) entered into in connection with the securitization of Providian Securitization Receivables (as hereinafter defined), (v) with or to a labor union or guild (including any collective bargaining agreement agreement) , (vi) which relates to the incurrence of indebtedness (other than deposit liabilities, advances and loans from a Federal Home Loan Bank, and sales of securities subject to repurchase, in each case in the ordinary course of business) in the principal amount of $5 million or more, (Bvii) any other agreement or instrument that (I) which grants any person a right of first refusal, right of first offer or similar right with respect to any material properties, assets or properties businesses of Parent Providian or any of its Subsidiaries, (IIviii) requires referrals which involves the purchase or sale of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on assets with a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount price of $250,000 5 million or moremore in any single case or $25 million in all such cases, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings purchases and reverse repurchase agreements sales of investment securities and loans in the Ordinary Course ordinary course of Business. For purposes of clause business, (iix) above, any which is a consulting agreement or service contract (xincluding data processing, software programming and licensing contracts and outsourcing contracts for the provision of collection and other services in connection with Providian and its Subsidiaries’ credit card operations) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to which involve the payment of $5 million or more than $75,000 in annual fees, or (other than contracts relating to banking credit or deposit transactions in x) which provide for the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent payment by Providian or its Subsidiaries will be the creditor) or arrangement to which Parent is of material payments upon a party.
(c) Except as set forth in Section 4.13(c) change of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) control thereof. Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.13(a), whether or not publicly disclosed in the Providian SEC Reports filed prior to the date hereof or set forth in Section 4.13 4.13(a) of the Company Providian Disclosure Schedule, is referred to herein as a “Parent Providian Contract” in effect as ”, and neither Providian nor any of its Subsidiaries knows of, or has received notice of any material violation of the date hereofabove by any of the other parties thereto. Parent Providian has previously made available all contracts which involved payments by Providian or any of its Subsidiaries in fiscal year 2004 of more than $5 million or which could reasonably be expected to involve payments during fiscal year 2005 of more than $5 million other than any such contract that is terminable at will on 60 days or less notice without payment of a penalty in excess of $500,000, other than any contract entered into on or after the date hereof that is permitted under the provisions of Section 6.2.
(b) Except as set forth in Section 4.13(b) of the Providian Disclosure Schedule, (i) each Providian Contract is valid and binding on Providian and in full force and effect (other than due to the Company true and complete copies of each Parent Contract in effect as ordinary expiration of the term thereof), and, to the knowledge of Providian, is valid and binding on the other parties thereto, (ii) Providian and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date hereofunder each Providian Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material default on the part of Providian or any of its Subsidiaries under any such Providian Contract.
Appears in 2 contracts
Samples: Merger Agreement (Providian Financial Corp), Merger Agreement (Washington Mutual Inc)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a4.14(a) of the Parent FTC Disclosure Schedule, (i) neither Parent FTC nor any of its Subsidiaries is in breach a party to, is bound or affected by, receives or is obligated to pay compensation or benefits under (i) any agreement, arrangement or commitment, including any agreement, indenture or other instrument relating to the borrowing of money by FTC or any of the Subsidiaries or the guarantee by FTC or any of the Subsidiaries of any commitmentobligation except for deposit liabilities, federal funds purchased, borrowings from the Federal Home Loan Bank and securities repurchase agreements entered into in the ordinary course of business; (ii) any contract, agreement or other instrument understanding with a labor union; (iii) any agreement, arrangement or understanding pursuant to which it is a party that is material any payment (whether of severance pay or otherwise) became or may become due to the results any director, officer or employee of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent FTC or any of its the Subsidiaries upon execution of this Agreement or upon or following consummation of the transactions contemplated by this Agreement (either alone or in connection with the occurrence of any additional acts or events); (iv) any agreement, arrangement or understanding to which FTC or any of the Subsidiaries is a party or by which any of them is bound which limits the freedom of Parent FTC or any of its the Subsidiaries to compete in any line of business, in any geographic area {JX489484.11} PD.35183901.7 business or with any person, or that involve any restriction of the geographic area in which, or method by which, they may carry on their business (other than as may be required by law or any Governmental Entity); (v) any joint venture, partnership or similar agreement, arrangement or understanding providing for the sharing of profits, losses, costs or liabilities by FTC or FBT with any other person; (vi) any purchase and assumption agreement with the FDIC; or (iiivii) neither Parent nor any other agreement, arrangement or understanding to which FTC or any of its the Subsidiaries is a party and which is material to the business, operations assets, liabilities, condition (Afinancial or otherwise) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right results of first refusal, right operations of first offer or similar right with respect to any material assets or properties of Parent or any of its FTC and the Subsidiaries, taken individually or as a whole (II) requires referrals of business excluding loan agreements or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions accounts); in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) each of the Parent Disclosure Schedule foregoing cases whether written or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) oral. Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.14(a), whether or not set forth in Section 4.13 of the Company FTC Disclosure Schedule, is referred to herein as a “Parent FTC Material Contract,” in effect as and neither FTC nor any of its Subsidiaries has received written notice of any default or any violation of the date hereofabove by any of the other parties thereto which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on FTC. Parent has previously made available Except as set forth in Section 4.14(a) of the FTC Disclosure Schedule, neither FTC nor any of its Subsidiaries is a party to any agreement, arrangement or commitment relating to the Company true employment of a consultant or the employment, retirement, election or retention in office of any present or former director, officer or employee of FTC or FBT (other than those which are terminable at will without any further amounts being payable thereunder as a result of termination by FTC or FBT).
(b) In each case, except as, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FTC, (i) each FTC Material Contract is valid and complete copies binding on FTC or one of its Subsidiaries, as applicable, in full force and effect, and enforceable against, to the FTC’s knowledge, the other party(ies) thereto in accordance with their respective terms (except as may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally and the availability of equitable remedies), (ii) FTC and each Parent of its Subsidiaries has in all respects performed all obligations required to be performed by it to date under each FTC Material Contract, and no material nonperformance or defaults have been asserted in writing by the third-party counterparty thereto, (iii) to FTC’s knowledge, each third-party counterparty to each FTC Material Contract has in effect as all respects performed all obligations required to be performed by it to date under such FTC Material Contract, and (iv) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a default on the date hereofpart of FTC or any of its Subsidiaries under any such FTC Material Contract.
Appears in 2 contracts
Samples: Share Exchange and Merger Agreement (Bancplus Corp), Share Exchange and Merger Agreement (Bancplus Corp)
Certain Contracts. (a) Except as publicly disclosed in the Interchange SEC Reports filed prior to the date hereof or as set forth in Section 4.13(a4.14(a) of the Parent Interchange Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Interchange nor any of its Subsidiaries is a party to or is bound by any contract, arrangement, commitment or understanding (Awhether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed in whole or in part after the date of this Agreement, (ii) which relates to the incurrence of indebtedness (other than deposit liabilities, advances and loans from the Federal Home Loan Bank and sales of securities subject to repurchase, in each case incurred in the ordinary course of business) by Interchange or any collective bargaining agreement of its Subsidiaries in the principal amount of $500,000 or more, including any sale and leaseback transactions, capitalized leases and other similar financing transactions, (Biii) any other agreement or instrument that (I) which grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent Interchange and its Subsidiaries, (iv) which provides for payments to be made by Interchange or any of its SubsidiariesSubsidiaries upon a change in control thereof, (IIv) which provides for the indemnification by Interchange or any of its Subsidiaries of any Person; (iv) which provides for the sharing of profits, losses, costs or liabilities by Interchange or any of its Subsidiaries with any other Person, whether in the form of a joint venture, partnership or similar agreement; (vii) which (A) limits the freedom of Interchange or any of its Subsidiaries to compete in any line of business, in any geographic area or with any Person, (B) requires referrals of business or requires Parent Interchange or any of its Subsidiaries to make available investment opportunities to any person Person on a priority or exclusive basis, basis or (IIIC) requires Parent Interchange or any of its Subsidiaries to use any product or service of another person Person on an exclusive basis or (IVviii) relates to material indebtedness for borrowed money whether directly which involved payments by, or indirectly by way of purchase money obligationto, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company Interchange or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness of its Subsidiaries in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment fiscal year 2005 of more than $100,000 500,000 or (y) with a remaining term of greater than six months and which could reasonably be expected to involve the payment payments during fiscal year 2006 of more than $75,000 500,000 (other than contracts relating pursuant to banking credit Loans originated or deposit transactions purchased by Interchange and its Subsidiaries in the Ordinary Course ordinary course of Business, which shall not be deemed material for purposes of clause (ibusiness consistent with past practice)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) . Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.14(a), whether or not publicly disclosed in the Interchange SEC Reports filed prior to the date hereof or set forth in Section 4.13 4.14(a) of the Company Interchange Disclosure Schedule, is referred to herein as a “Parent Interchange Contract” .”
(b) Except as set forth in effect as Section 4.14(b) of the date hereof. Parent has previously made available Interchange Disclosure Schedule, (i) each Interchange Contract is valid and binding on Interchange or its applicable Subsidiary and in full force and effect, and, to the Company true Knowledge of Interchange, is valid and complete copies binding on the other parties thereto, (ii) Interchange and each of its Subsidiaries and, to the Knowledge of Interchange, each Parent Contract in effect as of the other parties thereto, has in all material respects performed all obligations required to be performed by such party to date hereofunder each Interchange Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of Interchange or any of its Subsidiaries or, to the Knowledge of Interchange, any other party thereto, under any such Interchange Contract, except, in each case, where such invalidity, failure to be binding, failure to so perform or breach or default, individually or in the aggregate, would not have or reasonably be expected to have a Material Adverse Effect on Interchange.
Appears in 2 contracts
Samples: Merger Agreement (Interchange Financial Services Corp /Nj/), Merger Agreement (Td Banknorth Inc.)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a) 5.21 of the Parent Comet Disclosure ScheduleLetter, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Comet nor any of its Subsidiaries is a party to or bound by:
(i) any lease of real or personal property providing for annual rentals of $5 million or more;
(ii) any partnership, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture material to Comet and its Subsidiaries, taken as a whole;
(iii) any Contract (other than among direct or indirect wholly owned Subsidiaries of Comet) relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset) in excess of $10 million;
(iv) any executory Contract relating to the disposition or acquisition of material assets not in the ordinary course of business;
(v) any Contract that would be required to be filed as an exhibit to any Comet Report as of the date of this Agreement pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Securities Act and the Exchange Act;
(vi) any agreement or covenant restricting in any material respect the research, development, distribution, sale, supply, license or manufacturing of material products or services, or any agreement or covenant requiring Comet or any of its Subsidiaries to grant an exclusive right to a third party for the research, development, distribution, sale, supply, license or manufacturing of any material product or service;
(vii) any noncompetition Contract or other Contract that (A) purports to limit in any collective bargaining agreement material respect either the type of business in which Comet or its Subsidiaries may engage or the manner in which any of them may so engage in any business or (B) would reasonably be expected to so limit Moon and its Subsidiaries (other than Comet and its Subsidiaries pursuant to Contracts entered into in the ordinary course of business) after the Effective Time;
(viii) any Contract with an affiliate or other Person that would be required to be disclosed under Item 404(a) of Regulation S-K promulgated under the Exchange Act;
(ix) any Contract that prohibits the payment of dividends or distributions in respect of capital stock of Comet, prohibits the pledging of the capital stock of Comet or any of its Subsidiaries or prohibits the issuance of guarantees by Comet or any of its Subsidiaries;
(x) any agreement or instrument that (I) grants any covenant containing a right of first refusal, right of first negotiation or right of first offer or similar right with respect to any material assets or properties in favor of Parent a party other than Comet or any of its Subsidiaries;
(xi) any Contract with (including any related security clearance obtained from) the U.S. Government or any department or other subdivision thereof that depends upon funding under the U.S. Federal Acquisition Regulation (a “U.S. Government Contract”) or any subcontract under a U.S. Government Contract that remains executory in whole or in part (with appropriate identification of any such Contracts that are prime contracts with the U.S. government or any department or subdivision thereof, and any related security clearances, indicated in Section 5.21 of the Comet Disclosure Letter); and
(IIxii) requires referrals of business any Contract that contains a put, call or requires Parent similar right pursuant to which Comet or any of its Subsidiaries could be required to make available investment opportunities to any person on a priority purchase or exclusive basissell, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) aboveas applicable, any contract (x) involving the payment equity interests of any Person that have a fair market value or purchase price of more than $100,000 5 million or (y) with any other assets that have a remaining term of greater than six months and reasonably expected to involve the payment fair market value or purchase price of more than $75,000 25 million (other than contracts relating the Contracts described in clauses (i)–(xii), together with all exhibits and schedules to banking credit or deposit transactions in such Contracts, being the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i“Comet Material Contracts”)) shall be deemed material.
(b) As of the date hereof, Comet has delivered, or made available, to Moon a true and complete copy of each Comet Material Contract (subject to applicable confidentiality restrictions). Except as disclosed does not and would not reasonably be expected to have a Comet Material Adverse Effect, each such Comet Material Contract is a valid and binding agreement of Comet or one of its Subsidiaries, as the case may be, and is in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedulefull force and effect, and neither Parent Comet nor any of its SubsidiariesSubsidiaries nor, nor to the Knowledge knowledge of ParentComet, any other party thereto, thereto is in default in or breach under the terms of any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a partysuch Comet Material Contract.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereof.
Appears in 2 contracts
Samples: Business Combination Agreement (Chicago Bridge & Iron Co N V), Business Combination Agreement (McDermott International Inc)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) of the Parent Disclosure ScheduleNeither Keystone nor a Keystone Subsidiary is a party to, is bound or affected by, receives, or is obligated to pay, benefits under (i) neither Parent any agreement, arrangement or commitment, including without limitation any agreement, indenture or other instrument, relating to the borrowing of money by Keystone or a Keystone Subsidiary (other than in the case of Keystone deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business) or the guarantee by Keystone or a Keystone Subsidiary of any obligation, other than by Keystone in the ordinary course of its banking business, (ii) any agreement, arrangement or commitment relating to the employment of a consultant or the employment, election or retention in office of any present or former director, officer or employee of Keystone or a Keystone Subsidiary, (iii) any agreement, arrangement or understanding pursuant to which any payment (whether of severance pay or otherwise) became or may become due to any director, officer or employee of Keystone or a Keystone Subsidiary upon execution of this Agreement or upon or following consummation of the transactions contemplated by this Agreement (either alone or in connection with the occurrence of any additional acts or events); (iv) any agreement, arrangement or understanding pursuant to which Keystone or a Keystone Subsidiary is obligated to indemnify any director, officer, employee or agent of Keystone or a Keystone Subsidiary; (v) any agreement, arrangement or understanding to which Keystone or a Keystone Subsidiary is a party or by which any of the same is bound which limits the freedom of Keystone or a Keystone Subsidiary to compete in any line of business or with any person, (vi) any assistance agreement, supervisory agreement, memorandum of understanding, consent order, cease and desist order or condition of any regulatory order or decree with or by the Department, the FDIC or any other regulatory agency, or (vii) any other agreement, arrangement or understanding which would be required to be filed as an exhibit to the Annual Report on Form 10-K under the Exchange Act (assuming Keystone was required to file such reports under the Exchange Act).
(b) Neither Keystone nor any of its Subsidiaries is in breach of default or in non-compliance, which default or non-compliance could reasonably be expected to have a Material Adverse Effect on Keystone, under any contract, agreement, commitment, agreement arrangement, lease, insurance policy or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is its assets, business or operations may be bound limits or affected, whether entered into in the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent or any of its Subsidiaries, (II) requires referrals ordinary course of business or requires Parent otherwise and whether written or oral, and there has not occurred any event that with the lapse of its Subsidiaries to make available investment opportunities to any person on time or the giving of notice, or both, would constitute such a priority default or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed materialnon-compliance.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (KNBT Bancorp Inc), Merger Agreement (First Colonial Group Inc)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a3.13(a) of the Parent Company Disclosure Schedule, (i) as of the date hereof, neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Company nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (Awhether written or oral), other than any Company Benefit Plans, (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) which contains a non-compete or client or customer non-solicit requirement or any other provision that materially restricts the conduct of any line of business by Company or any of its affiliates or upon consummation of the Merger will materially restrict the ability of the Surviving Corporation or any of its affiliates to engage in any line of business, (iii) with or to a labor union or guild (including any collective bargaining agreement agreement), (iv) that relates to the incurrence of indebtedness by Company or any of its Subsidiaries (Bother than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice, or intercompany indebtedness) in the principal amount of $1,000,000 or more including any sale and leaseback transactions, capitalized leases and other agreement or instrument similar financing transactions, (v) that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of Parent or any of (x) that are material to Company and its Subsidiaries, taken as a whole, or (IIy) requires referrals of business or requires that would be applicable to Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent other than Company or any of its Subsidiaries to use any product or service of another person on an exclusive basis Subsidiaries) after the Closing; or (IVvi) relates to material indebtedness for borrowed money whether directly that is a vendor agreement or indirectly by way of purchase money obligationjoint marketing agreement, conditional saleincluding any consulting agreement, leasedata processing, purchasesoftware programming or licensing contract, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract involving (x) involving the payment of more than $100,000 1,000,000 over the remaining term of the agreement (other than any such contracts which are terminable by Company or any of its Subsidiaries on sixty (60) days’ or less notice without any required payment or other conditions, other than the condition of notice) or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except 1,000,000 payable as disclosed in Section 4.13(b) a result of the Parent Disclosure Schedule or Section 4.15(a) termination of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan agreement or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Merger. Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.13(a), whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Company Contract,” in effect as and neither Company nor any of its Subsidiaries has received notice of, and to the Company’s knowledge there does not exist, any violation of a Company Contract by any of the date hereofother parties thereto which would reasonably be expected to be, either individually or in the aggregate, material to Company and its Subsidiaries, taken as a whole. Parent has previously Section 3.13(a) of the Company Disclosure Schedule sets forth (a) a true, correct and complete list of all acquisitions and sales of businesses made available by Company or any of its Subsidiaries within the five (5) year period prior to the Company true date of this Agreement and (ii) a true, correct and complete copies list of each Parent Contract in effect as any continuing earn-out obligations arising out of the acquisitions referred to in clause (i).
(b) In each case, except as would not reasonably be likely to have, either individually or in the aggregate, a Material Adverse Effect on Company: (i) each Company Contract is valid and binding on Company or one of its Subsidiaries, as applicable, and in full force and effect, (ii) Company and each of its Subsidiaries has performed all obligations required to be performed by it prior to the date hereofhereof under each Company Contract, (iii) to Company’s knowledge, each third-party counterparty to each Company Contract has performed all obligations required to be performed by it to date under such Company Contract and (iv) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a default on the part of Company or any of its Subsidiaries under any such Company Contract.
Appears in 2 contracts
Samples: Merger Agreement (Canadian Imperial Bank of Commerce /Can/), Merger Agreement (Privatebancorp, Inc)
Certain Contracts. (a) Except as disclosed in set forth at Section 4.13(a3.9(b) and Section 3.12(a) of the Parent Target Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Target nor any of its Subsidiaries is a party to or bound by any contract, arrangement or commitment (Ai) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to the employment of any material assets directors, officers, employees or properties consultants, (ii) which, upon the consummation of Parent the transactions contemplated by this Agreement or the Bank Merger Agreement will (either alone or upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from WAL, Target, or any of their respective Subsidiaries to any director, officer or employee thereof, (iii) which materially restricts the conduct of any line of business by Target or any of its SubsidiariesSubsidiaries or limits Target’s freedom to compete in any geographic area or to use the name “Service1st Bank” or any variant thereof, (II) or which requires referrals of business or requires Parent Target or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (IIIiv) requires Parent which relates to the incurrence of indebtedness (other than deposit liabilities and advances and loans from the FHLB San Francisco incurred in the ordinary course of business consistent with past practice) by Target or any of its Subsidiaries Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing transactions, (v) which grants any right of first refusal, right of first offer or similar right with respect to use any product material assets, rights or service properties of another person on an exclusive basis Target or any of its Subsidiaries, (IVvi) which limits the payments of dividends by Target or any of its Subsidiaries, (vii) which relates to material indebtedness for borrowed money whether directly any joint venture, partnership, limited liability company agreement or indirectly by way other similar agreement or arrangement, or to the formation, creation or operation, management or control of purchase money obligationany partnership or joint venture with any third parties, conditional sale(viii) which is a consulting agreement or data processing, lease, purchase, guaranty software programming or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any licensing contract (x) involving the payment of more than $100,000 250,000 per annum (other than any such contracts which are terminable by Target or its applicable Subsidiary on 60 days or less notice without any required payment or other conditions (yother than the condition of notice)), (ix) with or to a remaining term labor union or guild (including any collective bargaining agreement), (x) which is not of greater than six months the type described in clauses (i) through (ix) above and which involved payments by, or to, Target or any of its Subsidiaries in the fiscal year ended December 31, 2011, or which could reasonably be expected to involve such payments during the payment fiscal year ending December 31, 2012, of more than $75,000 250,000 (other than contracts relating (A) pursuant to banking credit Loans originated or deposit transactions purchased by Target and its Subsidiaries and deposits taken in the Ordinary Course ordinary course of Business, business consistent with past practice or (B) any such contracts which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule are terminable by Target or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor its applicable Subsidiary on 60 days or less notice without any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan required payment or other commitment conditions (other than the condition of notice)), (xi) except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c3.24 of the Target Disclosure Schedule, which relates to any material Scheduled IP (as defined in Section 3.24) or (xii) except as set forth on Section 3.12(a)(v) of the Parent Target Disclosure Schedule, neither any of the entering into benefits of this Agreement nor which will be increased, or the consummation vesting of the benefits of which will be accelerated by the occurrence of any of the transactions contemplated hereunder by this Agreement, or the value of any of the benefits of which will cause be calculated on the Company or Parent to become obligated to make a payment in excess basis of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than of the payments transactions contemplated by this Agreement.
Agreement (dincluding as to this clause (xii), any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan). Section 3.12(a) of the Target Disclosure Schedule sets forth a list of all material contracts (as defined in Item 601(b)(10) of Regulation S-K) of Target and its Subsidiaries. Each contract, arrangement, arrangement or commitment or understanding of the type described in this Section 4.133.12(a), whether or not set forth in Section 4.13 3.12(a) of the Company Target Disclosure Schedule, is referred to herein as a “Parent Target Contract,” and neither Target nor any of its Subsidiaries has received notice of, nor do any executive officers of such entities know of, any violation of any Target Contract.
(b) Except as may be set forth in effect as Schedule 3.12(b) of the Target Disclosure Schedule, (i) each Target Contract is a valid and binding obligation of Target and in full force and effect, (ii) Target and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date hereof. Parent has previously made available to under each Target Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute, a material default on the Company true and complete copies part of each Parent Contract in effect as Target or any of the date hereofits Subsidiaries under any such Target Contract.
Appears in 2 contracts
Samples: Merger Agreement (Western Alliance Bancorporation), Merger Agreement (Western Liberty Bancorp)
Certain Contracts. (a) Except as publicly disclosed in the Banknorth Reports filed prior to the date hereof or as set forth in Section 4.13(a3.15(a) of the Parent Banknorth Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Banknorth nor any of its Subsidiaries is a party to or is bound by any contract, arrangement, commitment or understanding (Awhether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed in whole or in part after the date of this Agreement, (ii) which relates to the incurrence of indebtedness (other than deposit liabilities, advances and loans from the Federal Home Loan Bank of Boston and sales of securities subject to repurchase, in each case incurred in the ordinary course of business) by Banknorth or any collective bargaining agreement of its Subsidiaries in the principal amount of $10.0 million or more, including any sale and leaseback transactions, capitalized leases and other similar financing transactions, (Biii) any other agreement or instrument that (I) which grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent Banknorth and its Subsidiaries, (iv) which provides for material payments to be made by Banknorth or any of its SubsidiariesSubsidiaries upon a change in control thereof, (IIv) which is a consulting agreement (including data processing, software programming and licensing contracts) not terminable on 60 days or less notice and involving the payment of more than $5.0 million per annum, (vi) which (A) limits the freedom of Banknorth or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, (B) requires referrals of business or requires Parent Banknorth or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, or (IIIC) requires Parent Banknorth or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IVvii) relates to material indebtedness for borrowed money whether directly which involved payments by, or indirectly by way of purchase money obligationto, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company Banknorth or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness of its Subsidiaries in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment fiscal year 2003 of more than $100,000 10 million or (y) with a remaining term of greater than six months and which could reasonably be expected to involve the payment payments during fiscal year 2004 of more than $75,000 10 million (other than contracts relating pursuant to banking credit Loans originated or deposit transactions purchased by Banknorth and its Subsidiaries in the Ordinary Course ordinary course of Business, which shall not be deemed material for purposes of clause (ibusiness consistent with past practice)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) . Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.15(a), whether or not publicly disclosed in the Banknorth Reports filed prior to the date hereof or set forth in Section 4.13 3.15(a) of the Company Banknorth Disclosure Schedule, is referred to herein as a “Parent Banknorth Contract” .”
(b) Except as set forth in effect Section 3.15(b) of the Banknorth Disclosure Schedule, (i) each Banknorth Contract is valid and binding on Banknorth or its applicable Subsidiary and in full force and effect, and, to the knowledge of Banknorth, is valid and binding on the other parties thereto, (ii) Banknorth and each of its Subsidiaries and, to the knowledge of Banknorth, each of the other parties thereto, has in all material respects performed all obligations required to be performed by such party to date under each Banknorth Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of Banknorth or any of its Subsidiaries or, to the knowledge of Banknorth, any other party thereto, under any such Banknorth Contract, except, in each case, where such invalidity, failure to be binding, failure to so perform or breach or default, individually or in the aggregate, would not have or reasonably be expected to have a Material Adverse Effect on Banknorth.
(c) Section 3.15(c) of the Banknorth Disclosure Schedule contains a schedule showing the present value of the monetary amounts payable as of the date hereof. Parent has previously made available specified in such schedule, whether individually or in the aggregate (including good faith estimates of all amounts not subject to the Company true and complete copies of each Parent Contract in effect precise quantification as of the date hereofof this Agreement, such as tax indemnification payments in respect of income or excise taxes), under any employment, change-in-control, severance or similar contract with any present or former employee, director or consultant of Banknorth or any of its Subsidiaries and identifying the types and estimated amounts of the in-kind benefits due under any Banknorth Benefit Plans or Banknorth Contract (other than a tax-qualified plan) for each such person, specifying the assumptions in such schedule.
Appears in 2 contracts
Samples: Merger Agreement (Toronto Dominion Bank), Merger Agreement (Banknorth Group Inc/Me)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) of the Parent Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent or any of its Subsidiaries, (II) requires referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c4.16(a) of the Parent Sellers Disclosure ScheduleLetter, neither Sellers have made available true and complete copies of each of the entering into following contracts of this Agreement nor the Acquired Subsidiaries (collectively, the "Applicable Contracts"): (i) any material agreement for the incurrence of indebtedness by any Acquired Subsidiary, other than agreements with Affiliates which are to be terminated pursuant to Section 6.10(b); (ii) any non-competition agreement (other than any Permit granted by any Governmental Authority) which limits in any material respect the manner in which, or the localities in which, the Business, or following the consummation of the transactions contemplated hereunder will by this Agreement and the Related Agreements, Purchaser's businesses, is or would be conducted; (iii) any material joint venture, including the Joint Venture Agreements, or partnership agreement, other than in respect of joint ventures or similar investments held in an investment portfolio; (iv) any collective bargaining agreement; (v) any Contract providing for the indemnification by any of the Acquired Subsidiaries of any special purpose vehicle or other financing entity, including off balance sheet entities; (vi) any contract providing for future payments that are conditioned on, in whole or in part, or that cause an event of default as a result of, a change of control or similar event; (vii) any Contract containing any restrictions on acquisitions of the Company equity of the counterparties thereto; (viii) any agency, broker, selling, marketing or Parent to become obligated to make a payment similar Contract involving payments in 2004 in excess of five million dollars ($50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party5,000,000), other than distribution arrangements to which the payments contemplated by this Agreement.
International Insurance Companies or the Joint Ventures, on the one hand, and other Affiliates of Sellers, on the other hand, are parties; (dix) Each contractthe forms of any Insurance Contract used in the United States containing rate guarantees, arrangementrate caps or rate escalators; (x) any agreement to which any Acquired Subsidiary is a party granting or obtaining any right to use or practice any rights under any material Intellectual Property (other than licenses for off-the-shelf standard commercially available commercial software), commitment or understanding of the type described in this Section 4.13all material information technology service agreements, whether or not material service agreements that involve Intellectual Property and all material outsourcing agreements; (xi) any agreements set forth in Section 4.13 1.1(e) of the Company Sellers Disclosure ScheduleLetter and (xii) other Contracts not listed above granting material exclusive rights. Except as would not, individually or in the aggregate, reasonably be expected to result in a Business Material Adverse Effect, each Applicable Contract, is referred the legal, valid and binding obligation of an Acquired Subsidiary that is a party thereto and, to herein the Knowledge of Sellers, of each other party thereto, enforceable in accordance with its terms subject to bankruptcy, receivership, insolvency, reorganization, moratorium, fraudulent transfer and other Laws relating to or affecting the rights of creditors in general and by legal and equitable limitations on the enforceability of specific remedies. Except as set forth in Section 4.16(a)(i) of the Sellers Disclosure Letter or as would not, individually or in the aggregate, reasonably be expected to have a “Parent Business Material Adverse Effect, neither any Seller nor any Acquired Subsidiary that is a party thereto nor, to the Knowledge of Sellers, any other party, is in violation or default of any term of any such Applicable Contract and no condition or event exists which with the giving of notice or the passage of time, or both would constitute a violation or default by a Seller or any Acquired Subsidiary, as the case may be, or any other party thereto or permit the termination, modification, cancellation or acceleration of performance of the obligations of a Seller or any Acquired Subsidiary, as the case may be, or any other party to the Applicable Contract” .
(b) To the extent required by Law, (i) except as set forth in Section 4.16(b)(i) of the Sellers Disclosure Letter, all Insurance Contracts in force and effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract hereof are in effect as compliance with applicable Law in all material respects on forms approved by insurance regulatory authorities of the date hereofjurisdiction in which they were issued or on forms which have been filed with and not objected to by such authorities within the period provided for objection, and (ii) in all material respects, any premium rates and reinsurance agreements with respect to such Insurance Contracts required to be filed with or approved by such applicable insurance regulatory authorities have been so filed or approved.
Appears in 2 contracts
Samples: Acquisition Agreement (Metlife Inc), Acquisition Agreement (Metlife Inc)
Certain Contracts. (a) Except as disclosed in Section 4.13(a3.13(a) of the Parent Company Disclosure Schedule, (i) neither Parent nor any Schedule sets forth all of its Subsidiaries is the following Contracts in breach of any commitment, agreement or other instrument existence to which it is a party that is material to the results of operations, cash flows Company or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which it is bound as of the date hereof (collectively, the “Company Contracts”):
(i) Any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) Contracts for the sale of any material assets or rights of the Company or its Subsidiaries other than in the Ordinary Course of Business or for the grant to any Person of any preferential rights to purchase any of them is bound limits its assets, in each case, since January 1, 2009, or with obligations remaining to be performed or liabilities continuing after the freedom date of this Agreement;
(iii) Contracts for joint-ventures, strategic alliances or partnerships or other similar entities that are material to the Company and its Subsidiaries taken as a whole;
(iv) Any non-competition, non-solicitation or exclusive dealing agreement, or any other agreement or obligation that purports to limit or restrict in any material respect (A) the ability of the Company, its Subsidiaries or other Affiliates or, following the Closing, Parent or its Affiliates, to solicit customers or employees or (B) the manner in which, or the localities in which, all or any portion of the business of the Company or its Subsidiaries or, following the Closing, Parent or its Affiliates;
(v) Contracts relating to the acquisition by the Company or its Subsidiaries of any operating business, capital stock or assets of any other Person since January 1, 2009, other than for purchases of publicly traded shares of capital stock made in the day-to-day operations of the Company and its Subsidiaries;
(vi) Contracts or instruments relating to the incurrence, assumption or guarantee of any indebtedness or imposing a Lien on any of its material assets other than in the Ordinary Course of Business;
(vii) Contracts where the Company or any of its Subsidiaries is the lessee or sublessee of, or is granted a similar occupancy interest in, any real property or pursuant to compete in any line of business, in any geographic area which the Company or with any person, and (iii) neither Parent nor any of its Subsidiaries is grants to any Person a party to leasehold or subleasehold, or similar occupancy interest, in any real property;
(Aviii) any collective bargaining agreement Contracts for the provision of goods or services or License Agreements, in each case requiring fees, royalties, payments or other consideration in excess of $50,000 annually or $150,000 in the aggregate over the term of the Contract;
(Bix) any other agreement or instrument Contracts that (I) grants grant any right of first refusal, refusal or right of first offer or similar right with respect or that purport to any material assets or properties limit the ability of Parent or any of its Subsidiaries, (II) requires referrals of business or requires Parent the Company or any of its Subsidiaries to make available investment opportunities own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business;
(x) Contracts the subject matter of which pertains to any person on the solicitation or referral of customers of the Company or its Subsidiaries that are material to the Company and its Subsidiaries taken as a priority or exclusive basis, whole;
(IIIxi) requires Parent Contracts that obligate the Company or any of its Subsidiaries to use cap fees, share fees or other payments, share expenses, waive fees or to reimburse or assume any product or service all fees or expenses thereunder that would be material to the Company and its Subsidiaries taken as a whole;
(xii) Contracts requiring the Company or any of another person on an exclusive basis its Subsidiaries (A) to co-invest with any other Person, (B) to provide seed capital or similar investment, or (IVC) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwiseinvest in any investment product, in each case in an amount in excess of $100,000 individually or $250,000 in the aggregate;
(xiii) any written employment, severance, termination, employee-like consulting or retirement Contract for any employee providing for annual compensation in excess of $250,000 (excluding discretionary bonuses) or with respect to the employment of, severance, retention or payment to, any of its directors and executive officers;
(xiv) any material Contract involving Intellectual Property or relating to the provision of data processing, network communication or other technical services to or by it (other than licenses for commercial “off-the-shelf” or “shrink-wrap” software that has not been modified or customized for the Company or its Subsidiaries);
(xv) any Contract relating to the settlement of any action since December 31, 2007 with (A) the SEC, FINRA, any Governmental Entity or Regulatory Agency (regardless of amount) or (B) any Person (other than a Governmental Entity or SRO) for an amount in excess of $100,000;
(xvi) Contracts that bind or purport to bind, any controlling Affiliates of the Company;
(xvii) any distribution or sub-distribution Contract or Contract for the provision of brokerage services pursuant to which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness of its Subsidiaries paid in the principal amount excess of $250,000 100,000 during the 2010 calendar year;
(xviii) Contracts (or more, groups of related Contracts) other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in Company Benefit Plans that involve the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment expenditure of more than $100,000 annually or $250,000 in the aggregate which may not be freely terminated by the Company or its applicable Subsidiary upon notice of 90 days or less without penalty or other payment payable by the Company or its applicable Subsidiary;
(yxix) “soft dollar” arrangements with a remaining term of greater than six months and reasonably expected to any customer that involve the payment expenditure of more than $75,000 (other than contracts relating to banking credit 50,000 per customer annually or deposit transactions $150,000 per customer in the Ordinary Course aggregate;
(xx) Contracts providing for the payment to the Company or any of Businessits Subsidiaries of a retainer or similar fee of more than $50,000 annually or $150,000 in the aggregate;
(xxi) Contracts pursuant to which the Company or any of its Subsidiaries (or any of their predecessor companies) has any ongoing indemnification obligations, which shall not be deemed retained liabilities or earnouts that are material for purposes to the Company and its Subsidiaries taken as a whole, in each case with respect to the sale of clause any assets, rights or businesses; and
(i)xxii) shall be deemed materialall written amendments, supplements and modifications in respect of the foregoing.
(b) Except as disclosed in Section 4.13(b) of Each Company Contract is valid and binding on the Parent Disclosure Schedule Company or Section 4.15(a) of its applicable Subsidiary and the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, enforceable against it in accordance with its terms (subject to the Bankruptcy and Equity Exception), and is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan full force and effect and has not been modified or other commitment (amended except those under which Parent or its Subsidiaries will be the creditor) or arrangement pursuant to which Parent is a party.
(c) Except as an amendment set forth in on Section 4.13(c3.13(b) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule. The Company and each of its Subsidiaries, is referred as applicable, and, to herein as the Company’s knowledge, each other party thereto has duly performed all material obligations required to be performed by it to date under each Company Contract and no event or condition exists that constitutes or, after notice or lapse of time or both, would constitute, a “Parent Contract” in effect as material breach, violation or default on the part of the date hereof. Parent has previously made available Company or any of its Subsidiaries or, to the Company’s knowledge, any other party thereto under any such Company true Contract. There are no material disputes pending or, to the Company’s knowledge, threatened, and complete copies of each Parent Contract in effect as of the date hereofno material amounts due or owing remain unpaid, with respect to any Company Contract.
Appears in 2 contracts
Samples: Merger Agreement (Labranche & Co Inc), Merger Agreement (Cowen Group, Inc.)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) of State Bancorp’s Annual Report on Form 10-K for the Parent year ended December 31, 2010 or as forth in the State Bancorp Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent State Bancorp nor any of its Subsidiaries is a party to or is bound by any contract, arrangement, commitment or understanding (Awhether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed in whole or in part after the date of this Agreement, (ii) which relates to the incurrence of indebtedness (other than deposit liabilities, federal funds, advances and loans from the Federal Home Loan Bank and sales of securities subject to repurchase, in each case incurred in the ordinary course of business) by State Bancorp or any collective bargaining agreement of its Subsidiaries in the principal amount of $250,000 or more, including any sale and leaseback transactions in the ordinary course of its business consistent with past practice), capitalized leases and other similar financing transactions, (Biii) any other agreement or instrument that (I) which grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent State Bancorp and its Subsidiaries, (iv) which provides for material payments to be made by State Bancorp or any of its SubsidiariesSubsidiaries upon a change in control thereof, (IIv) which (A) limits the freedom of State Bancorp or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, (B) requires referrals of business or requires Parent State Bancorp or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, basis or (IIIC) requires Parent State Bancorp or any of its Subsidiaries to use any product or service of another person on an exclusive basis basis, or (IVvi) relates to material indebtedness for borrowed money whether directly which involved payments by, or indirectly by way of purchase money obligationto, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company State Bancorp or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness of its Subsidiaries in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment fiscal year 2010 of more than $100,000 250,000 and not terminable on ninety (90) days or (y) with a remaining term of greater than six months and less notice or which could reasonably be expected to involve the payment payments during fiscal year 2011 of more than $75,000 250,000 and not terminable on ninety (90) days or less notice (other than contracts relating pursuant to banking credit Loans originated or deposit transactions purchased by State Bancorp and its Subsidiaries in the Ordinary Course ordinary course of Business, which shall not be deemed material for purposes of clause (ibusiness consistent with past practice)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) . Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.13(a), whether or not publicly disclosed in the State Bancorp SEC Reports (as such term is hereinafter defined) filed prior to the date hereof or set forth in Section 4.13 of the Company State Bancorp Disclosure Schedule, is referred to herein as a “Parent State Bancorp Contract” .”
(b) Except as set forth in effect the State Bancorp Disclosure Schedule, (i) each State Bancorp Contract is valid and binding on State Bancorp or its applicable Subsidiary and in full force and effect, and, to the knowledge of State Bancorp, is valid and binding on the other parties thereto, (ii) State Bancorp and each of its Subsidiaries and, to the knowledge of State Bancorp, each of the other parties thereto, has in all material respects performed all obligations required to be performed by such party to date under each State Bancorp Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of State Bancorp or any of its Subsidiaries or, to the knowledge of State Bancorp, any other party thereto, under any such State Bancorp Contract, except, in each case, where such invalidity, failure to be binding, failure to so perform or breach or default, individually or in the aggregate, would not have or reasonably be expected to have a Material Adverse Effect on State Bancorp.
(c) The State Bancorp Disclosure Schedule contains a schedule showing the present value of the monetary amounts payable as of the date hereof. Parent has previously made available specified in such schedule, whether individually or in the aggregate (including good faith estimates of all amounts not subject to the Company true and complete copies of each Parent Contract in effect precise quantification as of the date hereofof this Agreement, such as tax indemnification payments in respect of income or excise taxes), under any employment, change-in-control, severance or similar contract or plan with or which covers any present or former employee, director or consultant of State Bancorp or any of its Subsidiaries and identifying the types and estimated amounts of the in-kind benefits due under any State Bancorp Pension Plans, State Bancorp Welfare Plans or State Bancorp Contract (other than a tax-qualified plan) for each such person, specifying the assumptions in such schedule. The failure of State Bancorp to include immaterial amounts (both individually or in the aggregate) under this Section 3.13(c) shall not constitute a breach thereof.
Appears in 2 contracts
Samples: Merger Agreement (Valley National Bancorp), Merger Agreement (State Bancorp Inc)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a3.13(a) of the Parent Company Disclosure ScheduleSchedule and excluding any Company Benefit Plan, as of the date hereof, neither the Company nor any of the Specified Company Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it that is a party that “material contract” (as such term is material to defined in Item 601(b)(10) of Regulation S-K of the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basisSEC), (ii) no commitmentthat contains a non- compete or client or customer non-solicit requirement, agreement or other instrument to which Parent in any case, that materially restricts the conduct of any line of business by the Company or any of its the Specified Company Subsidiaries is a party or upon consummation of the Merger and other transactions contemplated by which any of them is bound limits this Agreement will so materially restrict the freedom ability of Parent or any of its Subsidiaries to compete engage in any line of businesssuch activities, in any geographic area or with any person, and (iii) neither Parent nor that provides for the incurrence of indebtedness for borrowed money of the Company or any of its the Specified Company Subsidiaries is a party or the guaranty of indebtedness for borrowed money of third parties, in each case, in an aggregate principal amount in excess of $500,000,000 (other than securities sold under agreement to repurchase, in each case, incurred in the ordinary course of business), (Aiv) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of the Company or the Specified Company Subsidiaries, (v) that is material and obligates the Company or any of the Specified Company Subsidiaries, or following the Closing will obligate Parent or any of its Subsidiaries, to conduct business with any third party on a preferential or exclusive basis or that contains “most favored nation” or similar covenants, (IIvi) requires referrals other than entered into in the ordinary course of business, that relates to the acquisition or disposition of any assets or any business (whether by merger, sale of stock, sale of assets or requires Parent otherwise) since January 1, 2016 for a purchase price in excess of $1,000,000,000 and with any outstanding obligations as of the date of this Agreement (including any unpaid earnout or continuing indemnity provisions), (vii) that limits in any material respect the payment of dividends by the Company or any of its Subsidiaries to make available investment opportunities the Specified Company Subsidiaries, (viii) that is a material interest rate swap, cap, floor or option agreement, a futures or forward contract or relates to any person on a priority other material interest rate, currency, commodity or exclusive basis, (III) requires Parent other hedging or any of its Subsidiaries to use any product derivative transaction or service of another person on an exclusive basis risk management arrangement or (IVix) relates any material contract pursuant to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to of the Specified Company Subsidiaries (A) receives from any Person, which Contract evidences third party a license or relates to indebtedness similar right under any Intellectual Property Rights that are used in connection with the principal amount provision of $250,000 any material product or moreservice of the Company, other than depositslicenses with respect to software that is generally commercially available on standardized terms, Federal Home Loan Bank (B) grants to any third party an exclusive license or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect similar exclusive right under any material lease, contract, mortgage, promissory note, deed of trust, loan Intellectual Property Rights owned or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause used by the Company or Parent any of the Specified Company Subsidiaries or (C) to become obligated the knowledge of the Company, grants or purports to make grant any rights with respect to material Intellectual Property Rights owned by a payment future affiliate of the Company, which future affiliate is not a Subsidiary of the Company immediately prior to the Closing (any such contract as described in excess of $50,000 to any partythis clause (ix), including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) a “Company IP Contract”). Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.13(a) in existence as of the date hereof (excluding any Company Benefit Plan), whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Company Contract”) (provided that, for purposes of the first sentence of Section 3.13(b), the term “Company Contract” will include any of the above entered into after the date hereof that would have been a Company Contract if it had been in effect existence as of the date hereof). Parent To the knowledge of the Company, none of the Company JVs is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral) (other than the governing and other organizational agreements of the Company JVs) that would constitute a Company Contract under clauses (ii), (iv) and (v) of the definition thereof.
(b) In each case, except as would not reasonably be likely to have, either individually or in the aggregate, a Material Adverse Effect on the Company: (i) each Company Contract is valid and binding on the Company or one of its Subsidiaries, as applicable, and in full force and effect (unless terminated after the date of this Agreement in accordance with its terms and Section 5.2), (ii) the Company and each of its Subsidiaries has previously performed all obligations required to be performed by it prior to the date hereof under each Company Contract, (iii) to the knowledge of the Company, each third-party counterparty to each Company Contract has performed all obligations required to be performed by it to date under such Company Contract, (iv) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any such Company Contract, and (v) neither the Company nor any of its Subsidiaries knows of, or has received written notice of, any violation of any Company Contract by any of the other parties thereto. The Company has made available to Parent prior to the Company true date hereof true, correct and complete copies of each Parent Company Contract in effect existence as of the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (Fiserv Inc), Merger Agreement (First Data Corp)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a3.13(a) of the Parent Company Disclosure Schedule, (i) as of the date hereof, neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Company nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (Awhether written or oral) (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (ii) which contains a provision that limits (or purports to limit) in any material respect the ability of the Company or its affiliates (or, following the Closing, the Surviving Corporation or its affiliates) to engage or compete in any business (including geographic restrictions and preferential arrangements), (iii) with or to a labor union or guild (including any collective bargaining agreement agreement), (iv) other than extensions of credit, other banking products offered by the Company and its Subsidiaries or derivatives, which creates future payment obligations to or from the Company or its Subsidiaries in excess of $500,000 and that by its terms does not terminate or is not terminable without penalty upon notice of 60 days or less, (Bv) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of Parent the Company or its Subsidiaries, taken as a whole, (vi) for any of joint venture, partnership or similar agreement material to the Company or its Subsidiaries, (IIvii) that requires the Company or its Subsidiaries to sell or purchase goods or services on an exclusive basis or make referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IVviii) that relates to material indebtedness for borrowed money the acquisition or disposition of any business, capital stock or assets of any Person (whether directly or indirectly by way merger, sale of purchase money obligationstock, conditional sale, lease, purchase, guaranty sale of assets or otherwise) that has any remaining obligations (other than customary obligations relating to the indemnification of directors and officers), in respect of which or (ix) that relates to any real property leased, subleased, licensed or occupied by the Company or any Subsidiary is an obligor to any Personits Subsidiaries as lessee, which Contract evidences sublessee, licensee or relates to indebtedness in occupant and provides for annual payments by the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent Company or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) 250,000. Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.13(a) (excluding any Company Benefit Plan), whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Company Contract,” in effect as and neither the Company nor any of its Subsidiaries knows of, or has received notice of, any violation of the above by any of the other parties thereto which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on the Company.
(b) In each case, except as, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on the Company, (i) each Company Contract is valid and binding on the Company or one of its Subsidiaries, as applicable, and in full force and effect, (ii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it to date hereof. Parent has previously made available under each Company Contract, (iii) to the Company’s knowledge each third-party counterparty to each Company true Contract has performed all obligations required to be performed by it to date under such Company Contract, and complete copies (iv) no event or condition exists which constitutes or, after notice or lapse of each Parent Contract in effect as time or both, will constitute, a default on the part of the date hereofCompany or any of its Subsidiaries under any such Company Contract.
Appears in 2 contracts
Samples: Merger Agreement (Franklin Financial Network Inc.), Merger Agreement (FB Financial Corp)
Certain Contracts. (a) Except for this Agreement and the Transaction Documents and any agreements contemplated hereby or thereby, as disclosed in Section 4.13(a) of the Parent Disclosure Scheduledate hereof, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Mercury nor any of its Subsidiaries is a party to or bound by:
(Ai) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right Contract relating to material Indebtedness of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent or any of its Subsidiaries, (II) requires referrals of business or requires Parent Mercury or any of its Subsidiaries to make available investment opportunities to (other than such Contracts between Mercury and its wholly owned Subsidiaries);
(ii) any person on a priority or exclusive basis, (III) requires Parent Contract under which Mercury or any of its Subsidiaries has directly, or indirectly, made any loan, capital contribution or other investment in, any Person (other than (w) any such Contract pursuant to use which there are no outstanding obligations, (x) extensions of credit in the ordinary course of business, (y) investments in marketable securities in the ordinary course of business, and (z) investments by Mercury or its wholly owned Subsidiaries in wholly owned Subsidiaries of Mercury);
(iii) any product Contract that limits or service purports to limit or restrict in any material respect the ability of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company Mercury or any Subsidiary of its Subsidiaries or Affiliates (including Xxxxx and its Subsidiaries after the Second Merger) to compete in any business or geographic area;
(iv) any material partnership, joint venture, limited liability company or similar Contract;
(v) any Contract that is an obligor a local marketing agreement, joint sales agreement, shared services agreement or similar agreement;
(vi) any Contract relating to any Person, Program Rights under which Contract evidences or relates to indebtedness in the principal amount it would reasonably be expected that Mercury and its Subsidiaries would make annual payments of $250,000 or moremore during any twelve (12) month period or the remaining term of such Contract;
(vii) any network affiliation Contract or similar Contract;
(viii) any Contract relating to cable or satellite transmission or retransmission with MVPDs with more than 10,000 paid subscribers with respect to each Mercury Station;
(ix) any material Barter Agreement;
(x) any material Contract with a Governmental Entity;
(xi) any Contract for the acquisition, sale, lease or license of any material business or properties or assets of or by Mercury or any of its Subsidiaries outside of the ordinary course of business (by merger, purchase or sale of assets or stock) entered into since July 1, 2010 or any Contract for any acquisition of any material business or properties or assets by Mercury or any of its Subsidiaries pursuant to which Mercury or any of its Subsidiaries has any outstanding “earn-out” or other than deposits, Federal Home Loan Bank obligation to pay consideration;
(xii) any Contract governing a Mercury Related Party Transaction;
(xiii) any Contract that would be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) of Mercury;
(xiv) any registration rights agreements with respect to securities of Mercury; or
(xv) any other Contract or Federal Reserve borrowings series of related Contracts under which it would reasonably be expected that Mercury and reverse repurchase agreements its Subsidiaries would receive or make annual payments of $1,000,000 or more during any twelve (12) month period or the remaining term of such Contract; (the Contracts of the type described in the Ordinary Course of Business. For purposes of clause clauses (i) above, any contract through (xxiv) involving above being referred to herein as the payment “Mercury Material Contracts”). Each Mercury Material Contract (including all amendments and supplements thereto) as in effect as of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected the date hereof has heretofore been made available to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed materialXxxxx.
(b) Except as disclosed would not, individually or in Section 4.13(b) the aggregate, reasonably be likely to have a Material Adverse Effect on Mercury, with respect to each of the Parent Disclosure Schedule Mercury Material Contracts, (i) except to the extent it has expired in accordance with its terms, such Mercury Material Contract is valid and binding on Mercury or Section 4.15(athe Mercury Subsidiaries, as applicable (except as may be limited by bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the rights of creditors generally and the availability of equitable remedies), (ii) none of Mercury or any of the Parent Disclosure ScheduleMercury Subsidiaries or, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parentthe Mercury, any other party theretoto such Mercury Material Contract, is in material breach or material violation of, or in material default in any material respect under any material leaseunder, contractsuch Mercury Material Contract, mortgage, promissory note, deed of trust, loan or other commitment and (except those under which Parent or its Subsidiaries will be iii) to the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) Knowledge of the Parent Disclosure ScheduleMercury, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company no event has occurred which would result in such a material breach or Parent to become obligated to make material violation of, or a payment in excess of $50,000 to any partymaterial default under, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this AgreementMercury Material Contract.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (Lin Television Corp), Merger Agreement (LIN Media LLC)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) of Neither the Parent Disclosure Schedule, (i) neither Parent Company nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party to or by which any of them is bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC or required to be disclosed by the Company on a Current Report on Form 8-K) to be performed in whole or in part after the date of this Agreement, (ii) which (A) limits the freedom of Parent the Company or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor or which requires referrals of business or requires the Company or any of its Subsidiaries is to make available business opportunities or products or services to any person on a party priority, equal or exclusive basis (including any “preferred provider” type contracts or other agreements for products and services offered by the Company or its Subsidiaries to (Atheir customers) any collective bargaining agreement or (B) is an agreement of the types referred to in clause (A) that could apply to Acquiror or any of its affiliates after the Closing by reason of the Merger and the other agreement transactions contemplated by this Agreement and the Voting Agreement, (iii) which relates to the incurrence of indebtedness by the Company or instrument that any of its Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing transactions, (Iiv) which provides for any guaranty of third party obligations, other than any guaranty by the Company of its Subsidiaries’ obligations, (v) which grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of Parent the Company or any of its Subsidiaries, (IIvi) requires referrals which limits the payment of business dividends by the Company or requires Parent any of its Subsidiaries, (vii) 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, (viii) which relates to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (ix) which provides for material payments to be made by the Company or any of its Subsidiaries to make available investment opportunities to any person on upon a priority or exclusive basischange in control thereof, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) which is a consulting agreement or data processing, software programming or licensing contract involving the payment of more than $100,000 500,000 per annum (other than any such contracts which are terminable by the Company or its applicable Subsidiary on 60 days or less notice without any required payment or other conditions (yother than the condition of notice)), (xi) with a remaining term which relates to the performance of greater than six months material third-party clearing or execution services, (xii) which is not of the type described in clauses (i) through (xi) above and which involved payments by, or to, the Company or any of its Subsidiaries in fiscal year ended December 31, 2010, or which could reasonably be expected to involve the payment such payments during fiscal year ending December 31, 2011, of more than $75,000 500,000, (other than contracts relating xiii) which relates to banking credit or deposit transactions material Proprietary Rights (as defined in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (iSection 4.20(a)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule owned or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause licensed by the Company or Parent licensed to become obligated third parties (including permitting third parties to make a payment use the name “optionsXpress” or any variant thereof), or (xiv) which relates to material contracts related to IT Assets (as defined in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Section 4.20(b)). Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.14(a), whether or not set forth publicly disclosed in Section 4.13 of the Company Disclosure ScheduleReports filed since January 1, 2010 and prior to the date hereof, is referred to herein as a “Parent Company Contract” in effect as of the date hereof”. Parent The Company has previously made available to the Company true Acquiror true, correct and complete copies of each Parent Company Contract.
(b) Except as would not be material to the Company and its Subsidiaries taken as a whole, (i) each Company Contract is valid and binding on the Company or its applicable Subsidiary and in effect as full force and effect, and, to the knowledge of the Company, is valid and binding on the other parties thereto, (ii) the Company and each of its Subsidiaries and, to the knowledge of the Company, each of the other parties thereto, has performed all obligations required to be performed by it to date hereofunder each Company Contract and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a breach or default (including the non-payment of fees) on the part of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto, under any such Company Contract. No party to any Company Contract has given the Company or any of its Subsidiaries written notice of its intention to cancel, terminate, materially change the scope of rights under or fail to renew any Company Contract and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to any Company Contract, has repudiated in writing any material provision thereof.
Appears in 2 contracts
Samples: Merger Agreement (optionsXpress Holdings, Inc.), Merger Agreement (Schwab Charles Corp)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) of the Parent Disclosure ScheduleNeither Seller nor any Seller Subsidiary is a party to, or is bound by, (i) neither Parent nor any material contract as defined in Item 601(b)(10) of Regulation S-K of the SEC or any other contract or similar arrangement reasonably deemed material by Seller's management, whether or not made in the ordinary course of business (other than loans or loan commitments and funding transactions in the ordinary course of business of any Seller Subsidiary) or any agreement restricting the nature or geographic scope of its Subsidiaries is business activities in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basisrespect, (ii) no commitmentany agreement, agreement indenture or other instrument relating to which Parent the borrowing of money by Seller or any of its Subsidiaries is a party Seller Subsidiary or the guarantee by which any of them is bound limits the freedom of Parent Seller or any Seller Subsidiary of its Subsidiaries any such obligation, in each case amounting singly or in the aggregate to compete more than $100,000, other than agreements, indentures, instruments or guarantees relating to transactions entered into in any line the ordinary course of business, in any geographic area or with any person, and (iii) neither Parent nor any agreement, arrangement or commitment relating to the employment of its Subsidiaries is a party to (A) any collective bargaining agreement consultant who was formerly a director or (B) any other agreement or instrument that (I) grants any right executive officer of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent Seller or any Seller Subsidiary or the employment, election, retention in office or severance of its Subsidiaries, (II) requires referrals of business any present or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.former director or
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent Neither Seller nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, Seller Subsidiary is in default in any material respect under any material leaseagreement, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contractcommitment, arrangement, commitment lease, insurance policy or understanding other instrument whether entered into in the ordinary course of business or otherwise and whether written or oral, and there has not occurred any event that, with the type described lapse of time or giving of notice or both, would constitute such a default, except for such defaults which would not, individually or in this Section 4.13the aggregate, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as have a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereofMaterial Adverse Effect on Seller.
Appears in 2 contracts
Samples: Reorganization Agreement (Premier National Bancorp Inc), Reorganization Agreement (M&t Bank Corp)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) of the Parent Finisar SEC Reports filed prior to the date hereof or as set forth in the Finisar Disclosure Schedule, (i) neither Parent Finisar nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party to or by which any of them is bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement, (ii) which limits the freedom of Parent Finisar or any of its Subsidiaries to compete in any line of business, business or to engage in any line of business in any geographic area or with any person, and (iii) neither Parent nor or which requires exclusive referrals of business or requires Finisar or any of its Subsidiaries is to offer specified products or services to their customers on a party priority or exclusive basis, (iii) with or to a labor union or guild (A) including any collective bargaining agreement agreement), (iv) which relates to the incurrence of indebtedness in the principal amount of $1,000,000 or more, (Bv) any other agreement or instrument that (I) which grants any person a right of first refusal, right of first offer or similar right with respect to any material properties, assets or properties businesses of Parent Finisar or any of its Subsidiaries, (IIvi) requires referrals which provides any customer of business Finisar or requires Parent any of its Subsidiaries with product exclusivity rights, (vii) pursuant to which Finisar or any of its Subsidiaries is the beneficiary of any material foreign Tax holiday, (viii) which limits in any material respect, the ability of Finisar or any of its Subsidiaries to make available investment opportunities to close any person on a priority facility or exclusive basisterminate any employees, (IIIix) requires Parent which is a consulting agreement or service contract which involves the payment of $100,000 or more in annual fees, or (x) which provides for the payment by Finisar or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way payments upon a change of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Businesscontrol thereof. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule4.10(a), is referred to herein as a “Parent "Finisar Material Contract” ".
(b) Neither Finisar nor any of its Subsidiaries has breached, or received in effect as writing any claim or threat that it has breached or is otherwise in default under, any of the date hereof. Parent has previously made available to the Company true and complete copies terms or conditions of each Parent any Finisar Material Contract in such a manner as would permit any other party to cancel or terminate the same or permit any other party to collect material damages from Finisar or any of its Subsidiaries thereunder or limit the freedom of Finisar or any of its Subsidiaries (or, following the Merger, Optium or any of its Subsidiaries) to engage in any line of business or to compete with any person or entity in any geographic area. To Finisar's knowledge, no other party is in default under or in breach or violation of, nor is there any valid basis for any claim of default by any such party under, or breach or violation by any such party of, any Finisar Material Contract. All Finisar Material Contracts are in full force and effect and valid, binding and enforceable in accordance with their respective terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, moratorium or other similar Law affecting or relating to creditors' rights generally, and (ii) general principles of the date hereofequity.
Appears in 2 contracts
Samples: Merger Agreement (Optium Corp), Merger Agreement (Finisar Corp)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) of 1st United’s Annual Report on Form 10-K for the Parent year ended December 31, 2013 or as forth in the 1st United Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent 1st United nor any of its Subsidiaries is a party to or is bound by any contract, arrangement, commitment or understanding (Awhether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed in whole or in part after the date of this Agreement, (ii) which relates to the incurrence of indebtedness (other than deposit liabilities, federal funds, advances and loans from the Federal Home Loan Bank and sales of securities subject to repurchase, in each case incurred in the ordinary course of business) by 1st United or any collective bargaining agreement of its Subsidiaries in the principal amount of $250,000 or more, including any sale and leaseback transactions in the ordinary course of its business consistent with past practice), capitalized leases and other similar financing transactions, (Biii) any other agreement or instrument that (I) which grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent 1st United and its Subsidiaries, (iv) which provides for material payments to be made by 1st United or any of its SubsidiariesSubsidiaries upon a change in control thereof, (IIv) which (A) limits the freedom of 1st United or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, (B) requires referrals of business or requires Parent 1st United or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, basis or (IIIC) requires Parent 1st United or any of its Subsidiaries to use any product or service of another person on an exclusive basis basis, or (IVvi) relates to material indebtedness for borrowed money whether directly which involved payments by, or indirectly by way of purchase money obligationto, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company 1st United or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness of its Subsidiaries in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment fiscal year 2013 of more than $100,000 250,000 and not terminable on ninety (90) days or (y) with a remaining term of greater than six months and less notice or which could reasonably be expected to involve the payment payments during fiscal year 2014 of more than $75,000 250,000 and not terminable on ninety (90) days or less notice (other than contracts relating pursuant to banking credit Loans originated or deposit transactions purchased by 1st United and its Subsidiaries in the Ordinary Course ordinary course of Business, which shall not be deemed material for purposes of clause (ibusiness consistent with past practice)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) . Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.12(a), whether or not publicly disclosed in the 1st United SEC Reports (as such term is hereinafter defined) filed prior to the date hereof or set forth in Section 4.13 of the Company 1st United Disclosure Schedule, is referred to herein as a “Parent 1st United Contract” .”
(b) Except as set forth in effect the 1st United Disclosure Schedule, (i) each 1st United Contract is valid and binding on 1st United or its applicable Subsidiary and in full force and effect, and, to the knowledge of 1st United, is valid and binding on the other parties thereto, (ii) 1st United and each of its Subsidiaries and, to the knowledge of 1st United, each of the other parties thereto, has in all material respects performed all obligations required to be performed by such party to date under each 1st United Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of 1st United or any of its Subsidiaries or, to the knowledge of 1st United, any other party thereto, under any such 1st United Contract, except, in each case, where such invalidity, failure to be binding, failure to so perform or breach or default, individually or in the aggregate, would not have or reasonably be expected to have a Material Adverse Effect on 1st United.
(c) The 1st United Disclosure Schedule contains a schedule showing the present value of the monetary amounts payable as of the date hereof. Parent has previously made available specified in such schedule, whether individually or in the aggregate (including good faith estimates of all amounts not subject to the Company true and complete copies of each Parent Contract in effect precise quantification as of the date hereofof this Agreement, such as Tax indemnification payments in respect of income or excise Taxes), under any employment, change-in-control, severance or similar contract or plan with or which covers any present or former employee, director or consultant of 1st United or any of its Subsidiaries and identifying the types and estimated amounts of the in-kind benefits due under any 1st United Pension Plans, 1st United Welfare Plans or 1st United Contract (other than a Tax-qualified plan) for each such person, specifying the assumptions in such schedule. The failure of 1st United to include immaterial amounts (both individually or in the aggregate) under Section 3.12(c) shall not constitute a breach thereof.
Appears in 2 contracts
Samples: Merger Agreement (1st United Bancorp, Inc.), Merger Agreement (Valley National Bancorp)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a3.13(a) of the Parent MidSouth Disclosure ScheduleSchedule or otherwise filed as exhibits to, (i) or incorporated by reference in, MidSouth’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018 filed on March 18, 2019, other than any MidSouth Benefit Plan, neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent MidSouth nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (Awhether written or oral):
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) that contains a non-compete or client or customer non-solicit requirement or any other provision that restricts the conduct of any line of business by MidSouth or any of its Subsidiaries or upon consummation of the Merger will restrict the ability of the Surviving Company or any of its Subsidiaries to engage in any line of business that is material to MidSouth and its Subsidiaries, taken as a whole;
(iii) with or to a labor union or guild (including any collective bargaining agreement or agreement);
(Biv) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of Parent MidSouth or its Subsidiaries, taken as a whole;
(v) that obligates MidSouth or any of its Subsidiaries, affiliates to conduct business with any third party on an exclusive or preferential basis;
(IIvi) that requires referrals of business or requires Parent MidSouth or any of its Subsidiaries affiliates to make available investment opportunities to any person on a priority or exclusive basis;
(vii) that relates to the incurrence of indebtedness (other than deposit liabilities and advances and loans from any FHLB incurred in the ordinary course of business consistent with past practice) by MidSouth or any of its Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing transactions;
(IIIviii) requires Parent that limits the payment of dividends by MidSouth or any of its Subsidiaries;
(ix) that 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;
(x) that relates to a material acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn out” or other contingent obligations) that are still in effect;
(xi) that provides for material payments to be made by MidSouth or any of its Subsidiaries to use any product upon a change in control thereof;
(xii) that is a consulting agreement or service of another person on an exclusive basis data processing, software programming or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any licensing contract (x) involving the payment of more than $100,000 per annum (other than any such contracts which are terminable by MidSouth or its applicable Subsidiary on sixty (y60) with a remaining term days or less notice without any required payment or other conditions (other than the condition of greater than six months notice)); or
(xiii) that is not of the type described in clauses (i) through (xii) above and which involved payments by, or to, MidSouth or any of its Subsidiaries in the fiscal year ended December 31, 2018, or which could reasonably be expected to involve such payments during the payment fiscal year ending December 31, 2019, of more than $75,000 100,000 (other than contracts relating pursuant to banking credit Loans originated or deposit transactions purchased by MidSouth and its Subsidiaries in the Ordinary Course ordinary course of Business, which shall not be deemed material for purposes of clause (ibusiness consistent with past practice)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.13(a), whether or not set forth in Section 4.13 of the Company MidSouth Disclosure Schedule, is referred to herein as a “Parent MidSouth Contract,” in effect as and neither MidSouth nor any of its Subsidiaries knows of, or has received written, or to the knowledge of MidSouth, oral notice of, any violation of a MidSouth Contract by any of the date hereof. Parent other parties thereto which would reasonably be likely to be, either individually or in the aggregate, material to MidSouth and its Subsidiaries, taken as a whole.
(c) In each case, except as would not reasonably be likely to have, either individually or in the aggregate, a Material Adverse Effect on MidSouth: (i) each MidSouth Contract is valid and binding on MidSouth or one of its Subsidiaries, as applicable, and in full force and effect, (ii) MidSouth and each of its Subsidiaries has previously made available performed all obligations required to be performed by it prior to the Company true date hereof under each MidSouth Contract, (iii) to the knowledge of MidSouth, each third-party counterparty to each MidSouth Contract has performed all obligations required to be performed by it to date under such MidSouth Contract, and complete copies (iv) no event or condition exists which constitutes or, after notice or lapse of each Parent Contract in effect as time or both, will constitute, a default on the part of the date hereofMidSouth or any of its Subsidiaries under any such MidSouth Contract.
Appears in 2 contracts
Samples: Merger Agreement (Hancock Whitney Corp), Merger Agreement (Midsouth Bancorp Inc)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a3.13(a) of the Parent Company Disclosure ScheduleSchedule and excluding any Company Benefit Plan, (i) as of the date hereof, neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Company nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (Awhether written or oral):
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC),
(ii) that contains a non-compete or client or customer non-solicit requirement, in any collective bargaining case, that restricts in any material respect the conduct of any line of business by the Company or any of its Subsidiaries or upon consummation of the Merger and other transactions contemplated by this Agreement will so restrict in any material respect the ability of Parent or any of its Subsidiaries to engage in such activities,
(iii) that provides for the incurrence of indebtedness for borrowed money of the Company or any of its Subsidiaries or the guaranty of indebtedness for borrowed money of third parties, in each case, in an aggregate principal amount in excess of $10,000,000 (other than securities sold under agreement or to repurchase, in each case, incurred in the ordinary course of business consistent with past practices),
(Biv) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of the Company or its Subsidiaries,
(v) that is material and obligates the Company or any of its Subsidiaries, or following the Closing will obligate Parent or any of its Subsidiaries, to conduct business with any third party on a preferential or exclusive basis or that contains “most favored nation” or similar covenants,
(IIvi) requires referrals other than entered into in the ordinary course of business consistent with past practices, that relates to the acquisition or requires Parent disposition of any assets or any business of the Company or any of its Subsidiaries to make available investment opportunities with a purchase price in excess of $50,000,000 (whether by merger, sale of stock, sale of assets or otherwise) since January 1, 2016,
(vii) that is a settlement, consent or similar agreement and contains any material continuing obligations of the Company or any of its Subsidiaries,
(viii) that limits in any material respect the payment of dividends by the Company or any of its Subsidiaries,
(ix) that is a material interest rate swap, cap, floor or option agreement, a futures or forward contract or relates to any person on other material interest rate, currency, commodity or other hedging or derivative transaction or risk management arrangement, or
(x) that is a priority or exclusive basis, (III) requires Parent contract pursuant to which the Company or any of its Subsidiaries receives from any third party a license or similar right under any Intellectual Property Rights that are material to use any product or service the business of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Personand its Subsidiaries, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or moretaken as a whole, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Businesslicenses with respect to software that is generally commercially available. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.13(a) in existence as of the date hereof (excluding any Company Benefit Plan), whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Company Contract” (provided that, for purposes of Section 3.13(b), the term “Company Contract” will include any of the above entered into after the date hereof that would have been a Company Contract if it had been in effect existence as of the date hereof).
(b) In each case, except as would not reasonably be likely to have, either individually or in the aggregate, a Material Adverse Effect on the Company: (i) each Company Contract is, assuming due authorization, execution and delivery by the third-party counterparties thereto, valid and binding on the Company or one of its Subsidiaries, as applicable (except as limited by the Enforceability Exceptions) and in full force and effect (unless such Company Contract expires in accordance with its terms after the date of this Agreement or is terminated after the date of this Agreement in accordance with its terms and Section 5.2), (ii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it prior to the date hereof under each Company Contract, (iii) to the knowledge of the Company, each third-party counterparty to each Company Contract has performed all obligations required to be performed by it to date under such Company Contract, (iv) no event or condition exists which constitutes or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any such Company Contract, and (v) neither the Company nor any of its Subsidiaries knows of, or has received written notice of, any violation of any Company Contract by any of the other parties thereto. Parent The Company has previously made available to Parent prior to the Company true date hereof true, correct and complete copies of each Parent Company Contract in effect existence as of the date hereof.
Appears in 2 contracts
Samples: Merger Agreement (Worldpay, Inc.), Merger Agreement (Fidelity National Information Services, Inc.)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a) of the Parent Liberty Disclosure ScheduleSchedule 3.08(a), Liberty is not party to or subject to: (i) neither Parent nor any employment, consulting or severance contract or material arrangement with any past or present officer, director or employee of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, Liberty except for "at will" arrangements; (ii) no commitmentany plan, agreement material arrangement or other instrument to which Parent contract providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area similar material arrangements for or with any personpast or present officers, and directors or employees of Liberty; (iii) neither Parent nor any of its Subsidiaries is a party to (A) any collective bargaining agreement or with any labor union relating to employees of Liberty; (Biv) any other agreement which by its terms limits the payment of dividends by Liberty Bank or Liberty Bancorp; (v) any instrument that (I) grants any right of first refusal, right of first offer evidencing or similar right with respect to any material assets or properties of Parent or any of its Subsidiaries, (II) requires referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates related to material indebtedness for borrowed money whether directly or indirectly indirectly, by way of purchase money obligation, conditional sale, lease, lease purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary Liberty is an obligor to any Personperson, which Contract instrument evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings repurchase agreements, bankers' acceptances, advances from the FHLB of New York, and reverse repurchase agreements "treasury tax and loan" accounts, in each case established in the Ordinary Course ordinary course of Business. For purposes business and transactions in "Federal funds" or which contains financial covenants or other restrictions (other than those relating to the payment of clause principal and interest when due) which would be applicable on or after the Closing Date to Northfield; (ivi) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in this Agreement) limiting the Ordinary Course of Businessfreedom, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect respect, of Liberty to engage in any type of banking or bank-related business in which Liberty is permitted to engage under applicable law as of the date of this Agreement; (vii) any material lease, contract, mortgage, promissory note, deed contract or group of trust, loan related contracts with the same Person for the purchase or other commitment (except those sale of products or services under which Parent the undelivered balance of such products or its Subsidiaries will be the creditor) or arrangement to which Parent is services has a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment purchase price in excess of $50,000 for any individual contract or $50,000 for any group of related contracts in the aggregate (including any lease that involves a remaining aggregate balance of lease payments payable of more than $50,000 or any group of related leases which involves a remaining aggregate balance of lease payments payable of more than $50,000); (viii) any contract that is material to any partyit and its subsidiaries, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein taken as a “Parent Contract” whole; or (ix) any contract relating to commitments for capital expenditures in effect as excess of $50,000, individually or in the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereofaggregate.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a4.14(a) of the Parent FIBK Disclosure ScheduleSchedule as of the date hereof, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent FIBK nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (Awhether written or oral), but excluding any FIBK Benefit Plan: (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (ii) which contains a provision that limits (or purports to limit) in any collective bargaining agreement material respect the ability of FIBK (or after the Merger, the ability of the Surviving Entity and its Subsidiaries) to engage or compete in any business (Bincluding geographic restrictions and exclusive or preferential arrangements) and provides for, or would reasonably be expected to result in, payments by FIBK or its Subsidiaries after the date hereof in excess of $15,000,000 per year; (iii) with or to a labor union or guild (including any other agreement or instrument Collective Bargaining Agreement); (iv) that (I) grants any material right of first refusal, refusal or right of first offer or similar right with respect to any material assets assets, rights or properties of Parent FIBK or its Subsidiaries taken as a whole and provides for, or would reasonably be expected to result in, payments by FIBK or its Subsidiaries after the date hereof in excess of $15,000,000 per year; (v) which is a merger agreement, asset purchase agreement, stock purchase agreement, deposit assumption agreement, loss sharing agreement or other commitment to a Regulatory Agency in connection with the acquisition of a depository institution that continue in effect after the date of this Agreement that are material to FIBK and its Subsidiaries, taken as a whole; (vi) (A) that relates to the incurrence of indebtedness by FIBK or any of its Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing arrangements (II) requires referrals other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice), or requires Parent (B) that provides for the guarantee, credit support, indemnification, assumption or endorsement by FIBK or any of its Subsidiaries to make available investment opportunities to of, or any person on a priority or exclusive basis, (III) requires Parent similar commitment by FIBK or any of its Subsidiaries to use with respect to, the obligations, liabilities or indebtedness of any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwiseother person, in respect the case of which the Company or any Subsidiary is an obligor to any Personeach of clauses (A) and (B), which Contract evidences or relates to indebtedness in the principal amount of $250,000 15,000,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause ; (i) above, any contract (x) involving the payment of more than $100,000 or (yvii) with any record or beneficial owner of FIBK Class B Common Stock or five percent (5%) or more of the outstanding FIBK Common Stock or voting power thereof in any such owner’s capacity as a remaining term shareholder of greater than six months and reasonably expected to involve the payment of more than $75,000 FIBK (other than contracts relating or arrangements for financial products or services, including loan agreements, account agreements and other indebtedness agreements) or (viii) which is a settlement, consent or similar agreement with respect to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent litigation against FIBK or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment for an amount in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) 15,000,000. Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.14(a) (excluding any FIBK Benefit Plan), whether or not set forth in Section 4.13 of the Company FIBK Disclosure Schedule, is referred to herein as a “Parent FIBK Contract.” in effect as of the date hereof. Parent FIBK has previously made available to the Company true GWB true, correct and complete copies of each Parent FIBK Contract in effect as of the date hereof.
(i) Each FIBK Contract is valid and binding on FIBK or one of its Subsidiaries, as applicable, and in full force and effect, except as, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FIBK, (ii) FIBK and each of its Subsidiaries have in all material respects complied with and performed all obligations required to be complied with or performed by any of them to date under each FIBK Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FIBK, (iii) to the knowledge of FIBK, each third-party counterparty to each FIBK 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 FIBK Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FIBK, (iv) neither FIBK nor any of its Subsidiaries has knowledge of, or has received notice of, any violation of any FIBK Contract by any of the other parties thereto which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on FIBK and (v) 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 FIBK or any of its Subsidiaries or, to the knowledge of FIBK, any other party thereto, of or under any such FIBK Contract, except where such breach or default, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FIBK.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed in Section 4.13(a) 3.1.12 of the Parent Disclosure Schedule----------------- Schedules lists each contract, (i) neither Parent nor any of its Subsidiaries is in breach of any lease, undertaking, commitment, mortgage, indenture, note, security agreement, license and other agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete existing Parent Subsidiary in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent or any of its Subsidiaries, (II) requires referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person effect on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause date hereof (i) above, any contract (x) involving the payment expenditure or receipt of more than $100,000 over the term thereof, (ii) containing provisions calling for the sale or purchase of raw materials, products or services at prices that vary from the market prices of such raw materials, products or services generally prevailing in customary third party markets, (iii) which include "take or pay," "meet or release," "most favored nations" or similar pricing or delivery arrangements, (iv) between Parent and any Parent Subsidiary or among any Parent Subsidiaries, (v) requiring Parent or any Parent Subsidiary to indemnify or hold harmless any other person or entity, (vi) evidencing any warranty obligation of Parent or any Parent Subsidiary with respect to goods, services or products sold or leased by any of them, other than in the ordinary course of business, or (yvii) with a remaining term imposing on Parent or any Parent Subsidiary any confidentiality, non-disclosure or non-compete obligation (except those to which such access is prohibited pursuant to the terms thereof). The contracts, leases, undertakings, commitments, mortgages, indentures, notes, security agreements, leases, licenses and other agreements of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions nature described in the Ordinary Course of Business, which shall not be deemed material for purposes of clause clauses (i)) shall be deemed materialthrough (vii) are sometimes collectively referred to herein as the "Parent Contracts.
(b) " Except as disclosed set forth in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) 3.1.12 of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, existing Parent Subsidiary nor to the Knowledge of Parent, any other party thereto, thereto is in default in any material respect under any material leaseParent Contract, contractnor does any event, mortgagecircumstance or situation exist which, promissory notewith the passage of time or notice or both will constitute a default by Parent or any existing Parent Subsidiary or any other party under any such Parent Contract or any judgment, deed order or decree of trustany court or any government agency or instrumentality under which any person, loan firm, corporation or other commitment (except those under which entity is or may be entitled to assert any rights against Parent or its Subsidiaries will be the creditor) any existing Parent Subsidiary or arrangement to which Parent is a partytheir respective assets, properties, businesses, operations or products.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereof.
Appears in 1 contract
Samples: Agreement and Plan of Exchange (Group Maintenance America Corp)
Certain Contracts. (a) Except Section 6.18 of the Parent Disclosure Letter sets forth a list, as disclosed of the date of this Agreement, of each of the following Contracts by which Parent is a party or bound:
(i) any lease of real or personal property providing for annual rentals of $100,000 or more;
(ii) any partnership, joint venture or other similar agreement or arrangement;
(iii) any Contract relating to (A) any outstanding Debt or (B) any guarantee furnished by or on behalf of Parent;
(iv) any Contract made since January 1, 2008 relating to the disposition or acquisition of material assets not in the ordinary course of business having a value in excess of $100,000;
(v) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act);
(vi) any Contract or covenant that (A) purports to limit the type of business in which Parent may engage or the manner or locations in which any of them may so engage in any business or (B) could require the disposition of any material assets or line of business of Parent;
(vii) any Contract under which Parent has agreed to indemnify or reimburse any surety in respect of amounts paid or claimed against any surety bonds, which such surety bonds (bid, performance or other) were obtained in connection with services being performed by Parent are set forth in Section 4.13(a6.18(a)(vii) of the Parent Disclosure Schedule, Letter; and
(i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party to (A) any collective bargaining agreement or (Bviii) any other agreement Contract or instrument that (I) grants group of Contracts with a single counterparty that, if terminated or subject to a default by any right of first refusalparty thereto, right of first offer would reasonably be expected to result, individually or similar right with respect to any material assets or properties of Parent or any of its Subsidiaries, (II) requires referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwisein the aggregate, in respect of which a Parent Material Adverse Effect (the Company Contracts described in clauses (i)—(viii), whether or any Subsidiary is not included as an obligor exhibit to any Personthe Parent Reports, which Contract evidences or relates and together with all exhibits and schedules to indebtedness in the principal amount of $250,000 or moresuch Contracts, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with being referred to herein each as a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i“Parent Material Contract”)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true true, complete and complete correct copies of each Parent Material Contract that is not included as an exhibit to the Parent Reports.
(c) Each Parent Material Contract is in effect as full force and effect, and Parent has performed all obligations required to be performed by it, in all material respects, to date under each Parent Material Contract to which it is party. Parent (i)is not in material breach of or violation or default under any Parent Material Contract or (ii) has not received written notice of any such material breach, violation or default or the desire of the date hereofother party or parties to any such Parent Material Contract to exercise any rights such party has to cancel, terminate or repudiate such contract or exercise remedies thereunder. Each Parent Material Contract is enforceable by Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights and general principles of equity.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed in set forth at Section 4.13(a3.11(a) of the Parent Edify Disclosure Schedule, to the knowledge of the Edify Group, none of Edify, Edify Holding or the Subsidiaries is a party to or bound by any written or oral:
(i) neither Parent nor agreement, contract or commitment for the future purchase of, or payment for, supplies or products, or for the performance of services by a third party, involving in any one case $100,000 annually or more;
(ii) conditional sale agreement under which Edify, Edify Holding or any of its the Subsidiaries is in breach either the seller or the purchaser;
(iii) other than with S1 (and which will be terminated at or prior to the Closing), any note, debenture, bond, trust agreement, letter of any commitmentcredit agreement, loan agreement or other instrument contract or commitment for the borrowing or lending of money or agreement or arrangement for a line of credit or guarantee, pledge or undertaking of the indebtedness of any other person;
(iv) agreement, contract or commitment materially limiting or restraining Edify, Edify Holding or any of the Subsidiaries from engaging or competing in any aspect of the business or granting any exclusive distribution rights;
(v) agreement, contract, or commitment relating to the disposition or acquisition by Edify, Edify Holding of any of the Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which it is a party Edify, Edify Holding or any of the Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise that is material to the results business of operationsEdify, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent Edify Holding or any of its the Subsidiaries is a party as currently conducted;
(vi) contracts that could reasonably be construed to constitute an assignment of ownership or the grant of an exclusive license to any Intellectual Property by which any of them is bound limits the freedom of Parent or S1 and/or any of its Subsidiaries to compete in any line of businessAffiliates, in any geographic area or with any personon the one hand, and (iii) neither Parent nor Edify, Edify Holding and/or any of its Subsidiaries is a party to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent or any of its the Subsidiaries, on the other hand; or
(IIvii) requires referrals of business contracts or requires Parent or any of its Subsidiaries agreements that include obligations to make available investment opportunities provide professional services entered into subsequent to any person on a priority or exclusive basisApril 1, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly 2005 by way of purchase money obligationEdify, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company Edify Holding or any Subsidiary is an obligor to or under which, as of September 30, 2005, Edify, Edify Holding or any Person, Subsidiary had ongoing professional services projects and which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with include a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material provision for purposes of clause (i)) shall be deemed materialliquidated damages.
(b) Except as disclosed in Section 4.13(b3.11(b) of the Parent Edify Disclosure Schedule sets forth under the captions “Suppliers,” “Business IP Suppliers,” “Customers” and “Distributors”:
(i) all persons (exclusive of any employees of Edify, Edify Holding and the Subsidiaries) that supply, sell, license, assign or Section 4.15(adevelop Third Party Intellectual Property Rights (as herein defined) subsisting in Edify’s, Edify Holding’s or any of the Parent Disclosure ScheduleSubsidiaries’ current Products (“Suppliers”);
(ii) all persons (exclusive of any employees of Edify, neither Parent nor Edify Holding and the Subsidiaries) that supply, sell or license or develop applications of, Intellectual Property other than Third Party Intellectual Property Rights (“Business IP Suppliers”) used in and material to Edify’s, Edify Holding’s or any of its the Subsidiaries’ businesses as currently conducted;
(iii) the 30 customers from which Edify, nor Edify Holding and the Subsidiaries derived their greatest revenues during the 30-month period ended June 30, 2005 (the “Principal Customers”); and
(iv) all value-added resellers or other distributors of Edify, Edify Holding or any of the Subsidiaries that are material to the Knowledge current business of ParentEdify, Edify Holding or any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither Subsidiaries (the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement“Distributors”).
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereof.
Appears in 1 contract
Samples: Merger Agreement (Intervoice Inc)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a4.14(a) of the Parent Company Disclosure Schedule, (i) as of the date hereof, neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Company nor any of its Subsidiaries is a party to or is bound by any contract, agreement, mortgage, pledge, arrangement, commitment or understanding (Awhether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement, (ii) which limits, curtails or restricts the rights of the Company or any of its Subsidiaries (either individually or together with the Company’s Affiliates) to compete in any line of business in any geographic area or with any Person, or which requires exclusive referrals of business or requires the Company or any of its Subsidiaries to offer specified products or services to their customers on a priority or exclusive basis, (iii) with any director, executive officer (as defined in Item 402 of Regulation S-K of the SEC) or Affiliate of the Company, (iv) with or to a labor union or guild (including any collective bargaining agreement agreement), (v) which relates to the incurrence of indebtedness for borrowed money (other than sales of securities subject to repurchase, in each case in the ordinary course of business) by the Company or (B) any other agreement of its Subsidiaries or any contract or instrument that pursuant to which indebtedness for borrowed money may be incurred or is guaranteed by the Company or any of its Subsidiaries, (Ivi) which grants any Person a Lien, right of first refusal, right of first offer or similar right with respect to any material properties, assets or properties businesses of Parent the Company or its Subsidiaries, (vii) evidencing financial hedging or similar trading activities, (viii) which concerns the voting of capital stock or other equity, other than the Voting Agreement and the Amended and Restated Stockholders Agreement dated June 18, 2001 between the Company and Hearst, (ix) which involves the purchase or sale of assets with a purchase price of $500,000 or more in any single case or $2,000,000 in all such cases, other than purchases and sales in the ordinary course of business, (x) which are standstill or similar agreements restricting the Company from acquiring the securities of, soliciting proxies respecting, or affecting the control, of any Person (other than confidentiality agreements entered into in connection with the “Project Galaxy” solicitation process), (xi) with any Governmental Entity involving $75,000 or more in any single case or $500,000 in all such cases, (xii) which involved payments by the Company or any of its SubsidiariesSubsidiaries in fiscal year 2005 of more than $2,500,000 or which could reasonably be expected to involve payments during fiscal year 2006 of more than $2,500,000 other than any such contract that is terminable at will on sixty (60) days or less notice without payment of a penalty in excess of $2,500,000, other than any contract entered into on or after the date hereof that is permitted under the provisions of Section 6.2, or (IIxiii) requires referrals of business or requires Parent which commit the Company or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or enter into any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligationthe foregoing. Each contract, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contractagreement, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contractpledge, arrangement, commitment or understanding of the type described in this Section 4.134.14(a), whether or not filed in or disclosed as an exhibit to a Filed Company SEC Document or set forth in Section 4.13 4.14(a) of the Company Disclosure Schedule, is referred to herein as a “Company Contract.” The Company has heretofore provided or made available to Parent Contract” complete and correct copies of each Company Contract in effect existence as of the date hereof. Parent hereof together with any and all amendments thereto.
(b) Except as set forth in Section 4.14(b) of the Company Disclosure Schedule, (i) each Company Contract is valid and binding on the Company and in full force and effect (other than due to the ordinary expiration of the term thereof), and, to the Knowledge of the Company, is valid and binding on the other parties thereto, in each case, as enforceability may be limited by the Bankruptcy and Equity Exceptions, (ii) the Company and each of its Subsidiaries has previously made available in all material respects performed all obligations required to be performed by it to date under each Company Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material default on the part of the Company or any of its Subsidiaries under any such Company Contract, except, in each case, with respect to the foregoing clauses (i) through (iii) as would not reasonably be expected to result in a loss of a material benefit to the Company true and complete copies of each Parent Contract its Subsidiaries taken as whole. Except as set forth in effect as Section 4.14(b) of the date hereofCompany Disclosure Schedule, to the Knowledge of the Company, no other party to any Company Contract is in material default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a material default by any such other party thereunder. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received any written notice of termination or cancellation under any Company Contract, received any notice of material breach or default under any Company Contract which material breach or default has not been cured, or granted to any third party any rights, adverse or otherwise, that would constitute a material breach of any Company Contract.
Appears in 1 contract
Samples: Merger Agreement (Ivillage Inc)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) As of the Parent Disclosure Scheduledate hereof, (i) neither Parent the Company nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party to or by which any of them is bound limits by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the freedom SEC) to be performed after the date of Parent this Agreement, (ii) which restricts the rights of the Company or any of its Subsidiaries to compete in any material respect in any line of business, business in any geographic area or with any personPerson, and (iii) neither Parent nor or which requires exclusive referrals of business or requires the Company or any of its Subsidiaries is to offer specified products or services to their customers on an exclusive basis, (iii) with or to a party to labor union or guild (A) including any collective bargaining agreement agreement), (iv) which relates to the incurrence of indebtedness (other than capital leases) in the principal amount of $500,000 or more, (Bv) any other agreement or instrument that (I) which grants any Person a right of first refusal, right of first offer or similar right with respect to any material properties, assets or properties businesses of Parent the Company or any of its Subsidiaries, (IIvi) requires referrals which involves the purchase of business assets or requires Parent interests, other than in the ordinary course of business, with a purchase price of $500,000 or more in any single case or $500,000 in all such cases, (vii) which involves the sale of assets, other than in the ordinary course of business, with a purchase price of $500,000 or more in any single case or $500,000 in all such cases, or (viii) which involved payments by or to the Company or any of its Subsidiaries in fiscal year 2018 of more than $500,000 or which would reasonably be expected to make available investment opportunities involve payments by or to any person on a priority or exclusive basis, (III) requires Parent the Company or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment during fiscal year 2019 of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) 500,000. Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.12(a), whether or not set forth in Section 4.13 4.12(a) of the Company Disclosure ScheduleLetter, is referred to herein as a “Parent Company Contract” in effect as ”, and neither the Company nor any of its Subsidiaries has received written notice of any material violation of a Company Contract by any of the date hereofother parties thereto. Parent The Company has previously made available to the Parent (which requirement may be satisfied by posting such information in the online data room established by the Company true and complete copies of each Parent Contract in effect as of prior to the date hereof) all contracts which involved payments by or to the Company or any of its Subsidiaries in fiscal year 2018 of more than $500,000 or which would reasonably be expected to involve payments by or to the Company or any of its Subsidiaries during fiscal year 2019 of more than $500,000 other than any such contract that is terminable at will on one-hundred twenty (120) days or less notice without payment of a penalty in excess of $10,000, and other than any contract entered into on or after the date hereof that is permitted under the provisions of Section 6.2.
(b) Except as would not reasonably be expected to result in, either individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is valid and binding on the Company and in full force and effect (other than due to the ordinary expiration of the term thereof), and, to the Knowledge of the Company, is valid and binding on the other parties thereto, in each case, as enforceability may be limited by the Bankruptcy and Equity Exceptions, (ii) the Company and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each Company Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material default on the part of the Company or any of its Subsidiaries under any such Company Contract.
Appears in 1 contract
Samples: Merger Agreement (Glowpoint, Inc.)
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a3.16(a) of the Parent Acquiror Disclosure ScheduleSchedule and except for Contracts with customers other than the Contracts with the largest 25 customers for the fiscal year ended December 31, 2009 (idetermined on the basis of the expected total dollar amount of net sales) if applicable, neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Acquiror nor any of its Subsidiaries is a party to or bound by any Contract that: (Ai) any collective bargaining agreement involves or would reasonably be expected to involve aggregate future payments by Acquiror and/or its Subsidiaries in excess of $5,000,000 or its foreign currency equivalent as of the date of this Agreement or aggregate future payments to Acquiror and/or its Subsidiaries in excess of $5,000,000 or its foreign currency equivalent as of the date of this Agreement (Bexcluding purchase orders received and accepted by Acquiror and/or its Subsidiaries in the ordinary course of business consistent with past practice), (ii) any other agreement would be required to be filed with the SEC under Item 601 of Regulation S-K of the Exchange Act if Acquiror was subject thereto, (iii) provides for or instrument that (I) grants any right of first refusalotherwise relates to joint venture, right of first offer partnership, strategic alliance or similar right with respect arrangements, (iv) contains any non-competition, exclusivity, confidentiality or other obligation that purports to limit in any material assets respect the manner in which, or properties the geographic areas in which, the business of Parent Acquiror or any of its Subsidiaries may be conducted or, after the Effective Time, would have the effect of limiting in any material respect the manner in which, or the geographic areas in which, the business of Company or any of its Subsidiaries may be conducted; (v) constitutes or provides for indentures, mortgages, promissory notes, loan agreements, guarantees, letter of credit or other agreements or instruments of Acquiror or any of its Subsidiaries or commitments for the borrowing or the lending by Acquiror or any of its Subsidiaries of amounts in excess of $1,000,000; (vi) is a license of Intellectual Property Rights to or from Acquiror or any of its Subsidiaries that is material to the business of Acquiror or any of its Subsidiaries; (vii) with any labor union, (II) requires referrals of business labor organization or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis works council; or (IVviii) relates to material indebtedness for borrowed money whether directly or indirectly by way contains any type of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor provision that becomes applicable due to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into execution and delivery of this Agreement nor or the consummation of the transactions contemplated hereunder will cause hereby, but, in the Company case of this subclause (viii), excluding those Contracts that contain provisions that relate solely to the payment of a monetary amount of less than $5,000,000; or Parent (ix) is material to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or Acquiror and its Subsidiaries and such partytaken as a whole, other than the payments contemplated by this Agreementirrespective of amount or duration.
(db) Each contractAcquiror Contract is valid and binding on Acquiror and/or its Subsidiaries, arrangementas applicable, commitment and in full force and effect. Each of Acquiror and its Subsidiaries and, to the knowledge of Acquiror, the other Person or understanding Persons thereto has in all material respects performed all of its obligations required to be performed by it under each Acquiror Contract, except for instances of noncompliance where neither the type described costs to comply nor the failure to comply, individually or in this Section 4.13the aggregate, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred would reasonably be expected to herein as have a “Parent Contract” in effect as Material Adverse Effect on Acquiror.
(c) As of the date hereofof this Agreement, no customer of Acquiror or any of its Subsidiaries that, individually or in the aggregate with its Affiliates, accounted for 1.0% or more of the consolidated revenues of Acquiror and its Subsidiaries during the 12-month period preceding the date of this Agreement has cancelled or otherwise terminated its relationship with Acquiror or any Subsidiary of Acquiror. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as As of the date hereofof this Agreement, no group of customers of Acquiror or any of its Subsidiaries that, in the aggregate, accounted for 3.0% or more of the consolidated revenues of Acquiror and its Subsidiaries during the 12-month period preceding the date of this Agreement has cancelled or otherwise terminated its relationship with Acquiror or any Subsidiary of Acquiror.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed in Section 4.13(a) 6.18 of the Parent Disclosure ScheduleLetter sets forth a list, (i) neither Parent nor any as of its Subsidiaries is in breach the date of any commitmentthis Agreement, agreement or other instrument to which it is a party that is material to of each of the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to following Contracts by which Parent or any of its Subsidiaries is a party or by which bound:
(i) any lease of them is bound limits the freedom real or personal property providing for annual rentals of Parent $100,000 or more;
(ii) any of its Subsidiaries to compete in any line of businesspartnership, in any geographic area joint venture or with any person, and other similar agreement or arrangement;
(iii) neither Parent nor any Contract (other than solely among direct or indirect wholly-owned Subsidiaries of its Subsidiaries is a party Parent) relating to (A) any collective bargaining agreement outstanding Debt or (B) any other agreement guarantee furnished by or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties on behalf of Parent or any of its Subsidiaries;
(iv) any Contract made since January 1, (II) requires referrals 2011 relating to the disposition or acquisition of material assets not in the ordinary course of business having a value in excess of $100,000;
(v) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act);
(vi) any Contract or requires covenant that (A) purports to limit the type of business in which Parent or its Subsidiaries may engage or the manner or locations in which any of them may so engage in any business or (B) could require the disposition of any material assets or line of business of Parent or its Subsidiaries;
(vii) any Contract under which Parent or any of its Subsidiaries has agreed to make available investment opportunities to indemnify or reimburse any person on a priority surety in respect of amounts paid or exclusive basisclaimed against any surety bonds, which such surety bonds (IIIbid, performance or other) requires were obtained in connection with services being performed by Parent or any of its Subsidiaries are set forth in Section 6.18(a)(vii) of the Parent Disclosure Letter; and
(viii) any other Contract or group of Contracts with a single counterparty that, if terminated or subject to use a default by any product party thereto, would reasonably be expected to result, individually or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwisein the aggregate, in respect of which a Parent Material Adverse Effect (the Company Contracts described in clauses (i)—(viii), whether or any Subsidiary is not included as an obligor exhibit to any Personthe Parent Reports, which Contract evidences or relates and together with all exhibits and schedules to indebtedness in the principal amount of $250,000 or moresuch Contracts, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with being referred to herein each as a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i“Parent Material Contract”)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true true, complete and complete correct copies of each Parent Material Contract that is not included as an exhibit to the Parent Reports.
(c) Each Parent Material Contract is in effect as full force and effect, and Parent and each of its Subsidiaries have performed all obligations required to be performed by them, in all material respects, to date under each Parent Material Contract to which they are party. Neither Parent nor any of its Subsidiaries (i) is in material breach of or violation or default under any Parent Material Contract or (ii) has received written notice of any such material breach, violation or default or the desire of the date hereofother party or parties to any such Parent Material Contract to exercise any rights such party has to cancel, terminate or repudiate such contract or exercise remedies thereunder. Each Parent Material Contract is enforceable by Parent or a Subsidiary of Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights and general principles of equity.
Appears in 1 contract
Certain Contracts. (a) Except As of the date hereof, other than as disclosed in set forth on Section 4.13(a5.13(a) of the Parent Disclosure ScheduleLetter, (i) neither Parent nor any of its Subsidiaries is in breach of a party to, bound by any commitmentcontract, agreement arrangement, commitment or other instrument to understanding (whether written or oral) (i) which it is a party that is material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the results date of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basisthis Agreement, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits restricts the freedom rights of Parent or any of its Subsidiaries to compete in any material respect in any line of business, business in any geographic area or with any personPerson, and (iii) neither or which requires exclusive referrals of business or requires Parent nor or any of its Subsidiaries is to offer specified products or services to their customers on an exclusive basis, (iii) with or to a party to labor union, guild, trade union, labor organization, works council or other employee representative body covering any employee (A) including any collective bargaining agreement agreement), (iv) which relates to the incurrence of indebtedness (other than capital leases) in the principal amount of $100,000 or more, (Bv) any other agreement or instrument that (I) which grants any Person a right of first refusal, right of first offer or similar right with respect to any material properties, assets or properties businesses of Parent or any of its Subsidiaries, (IIvi) requires referrals which involves the purchase of business assets or requires interests, other than in the ordinary course of business, with a purchase price of $100,000 or more in any single case or $100,000 in all such cases, (vii) which involves the sale of assets, other than in the ordinary course of business, with a purchase price of $100,000 or more in any single case or $100,000 in all such cases, or (viii) which involved payments by Parent or any of its Subsidiaries in fiscal year 2022 of more than $100,000 or which would reasonably be expected to make available investment opportunities to any person on a priority or exclusive basis, (III) requires involve payments by Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment during fiscal year 2023 of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) 100,000. Each contract, arrangement, commitment or understanding of the type described in this Section 4.135.13(a), whether or not set forth in Section 4.13 5.13(a) of the Company Parent Disclosure ScheduleLetter, is referred to herein as a “Parent Contract” in effect as ”, and neither Parent nor any of its Subsidiaries has received written notice of any material violation of a Parent Contract by any of the date hereofother parties thereto. Parent has previously made available to the Company true (which requirement may be satisfied by posting such information in the online data room established by Parent prior to the date hereof) the Agreement and complete copies Plan of Merger, dated as of September 25, 2022, by and among Parent, KINS Technology Group Inc., CXApp Holding Corp. and KINS Merger Sub Inc. (the “KINS Merger Agreement”), the Separation and Distribution Agreement dated as of September 25, 2022, among KINS Technology Group Inc., Parent, CXApp Holding Corp. and Design Reactor, Inc. (the “Separation and Distribution Agreement”), and all contracts which involved payments by Parent or any of its Subsidiaries in fiscal year 2022 of more than $100,000 or which would reasonably be expected to involve payments by Parent or any of its Subsidiaries during fiscal year 2023 of more than $100,000 other than any such contract that is terminable at will on one-hundred twenty days or less notice without payment of a penalty in excess of $10,000, and other than any contract entered into on or after the date hereof that is permitted under the provisions of Section 6.2.
(b) Except as would not reasonably be expected to result in, either individually or in the aggregate, a Parent Material Adverse Effect, (i) each Parent Contract is valid and binding on Parent and in full force and effect as (other than due to the ordinary expiration of the term thereof), and, to the Knowledge of Parent, is valid and binding on the other parties thereto, in each case, as enforceability may be limited by the Bankruptcy and Equity Exceptions, (ii) Parent and each of its Subsidiaries have in all material respects performed the respective obligations required to be performed by them to date hereofunder each Parent Contract, and (iii) to the Knowledge of Parent, no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material default on the part of Parent or any of its Subsidiaries under any such Parent Contract.
Appears in 1 contract
Samples: Merger Agreement (Inpixon)
Certain Contracts. (a) Except as disclosed in set forth at Section 4.13(a3.9(b) and Section 3.12(a) of the Parent Bridge Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Bridge nor any of its Subsidiaries is a party to or bound by any contract, arrangement or commitment (Ai) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to the employment of any material assets directors, officers, employees or properties consultants, (ii) which, upon the consummation of Parent the transactions contemplated by this Agreement or the Bank Merger Agreement will (either alone or upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from WAL, Bridge, or any of their respective Subsidiaries to any director, officer or employee thereof, (iii) which materially restricts the conduct of any line of business by Bridge or any of its SubsidiariesSubsidiaries or limits Bridge’s freedom to compete in any geographic area or to use the name “Bridge Bank” or any variant thereof, (II) or which requires referrals of business or requires Parent Bridge or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (IIIiv) requires Parent which relates to the incurrence of indebtedness (other than deposit liabilities and advances and loans from the FHLB-SF incurred in the ordinary course of business consistent with past practice) by Bridge or any of its Subsidiaries Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing transactions, (v) which grants any registration right, right of first refusal, right of first offer or similar right with respect to use any product material assets, rights or service properties of another person on an exclusive basis Bridge or any of its Subsidiaries, (IVvi) which limits the payments of dividends by Bridge or any of its Subsidiaries, (vii) which relates to material indebtedness for borrowed money whether directly any joint venture, partnership, limited liability company agreement or indirectly by way other similar agreement or arrangement, or to the formation, creation or operation, management or control of purchase money obligationany partnership or joint venture with any third parties, conditional sale(viii) which is a consulting agreement or data processing, lease, purchase, guaranty software programming or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any licensing contract (x) involving the payment of more than $100,000 250,000 per annum (other than any such contracts which are terminable by Bridge or its applicable Subsidiary on 60 days or less notice without any required payment or other conditions (yother than the condition of notice)), (ix) with or to a remaining term labor union or guild (including any collective bargaining agreement), (x) which is not of greater than six months the type described in clauses (i) through (ix) above and which involved payments by, or to, Bridge or any of its Subsidiaries in the fiscal year ended December 31, 2014, or which could reasonably be expected to involve such payments during the payment fiscal year ending December 31, 2015, of more than $75,000 250,000 (other than contracts relating (A) pursuant to banking credit loans originated or deposit transactions purchased by Bridge and its Subsidiaries and deposits taken in the Ordinary Course ordinary course of Business, business consistent with past practice or (B) any such contracts which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule are terminable by Bridge or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor its applicable Subsidiary on 60 days or less notice without any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan required payment or other commitment conditions (other than the condition of notice)), (xi) except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c3.23 of the Bridge Disclosure Schedule, which relates to any material Scheduled IP (as defined in Section 3.23) or (xii) except as set forth on Section 3.12(a)(v) of the Parent Bridge Disclosure Schedule, neither any of the entering into benefits of this Agreement nor which will be increased, or the consummation vesting of the benefits of which will be accelerated by the occurrence of any of the transactions contemplated hereunder by this Agreement, or the value of any of the benefits of which will cause be calculated on the Company or Parent basis of any of the transactions contemplated by this Agreement (including as to become obligated to make a payment in excess of $50,000 to any party, including but not limited tothis clause (xii), any termination feestock option plan, breakup fee stock appreciation rights plan, restricted stock plan or reimbursement feestock purchase plan). Section 3.12(a) of the Bridge Disclosure Schedule sets forth a list of all material contracts (as defined in Item 601(b)(10) of Regulation S-K) of Bridge and its Subsidiaries, pursuant to any agreement and a list of the twenty (20) largest contracts by dollar value per annum (other than those evidencing loans originated or understanding between Parent purchased by Bridge or its Subsidiaries and such party, other than or deposits taken in the payments contemplated by this Agreement.
(d) ordinary course of business consistent with past practice). Each contract, arrangement, arrangement or commitment or understanding of the type described in this Section 4.133.12(a), whether or not set forth in Section 4.13 3.12(a) of the Company Bridge Disclosure Schedule, is referred to herein as a “Parent Bridge Contract,” and neither Bridge nor any of its Subsidiaries has received notice of, nor do any executive officers of such entities know of, any violation of any Bridge Contract.
(b) Except as may be set forth in effect as Schedule 3.12(b) of the Bridge Disclosure Schedule, (i) each Bridge Contract is a valid and binding obligation of Bridge and in full force and effect, except as enforcement may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency, receivership, conservatorship or other similar laws affecting creditors’ rights and remedies generally; (ii) Bridge and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date hereof. Parent has previously made available to under each Bridge Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute, a material default on the Company true and complete copies part of each Parent Contract in effect as Bridge or any of the date hereofits Subsidiaries under any such Bridge Contract.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a4.18(a) of the Parent Company Disclosure Schedule, (i) neither Parent the Company nor any of its Subsidiaries is, as of the date of this Agreement, a party to or is in breach of bound by any commitment, agreement Contract (whether written or other instrument to oral) (i) which it is a party Management Contract which contains any “most favored nation” or similar provisions providing that is material the fees charged may be subject to reduction due to any other fee arrangement of the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent Company or any of its Subsidiaries (or any present or future affiliate thereof) with any other person, (ii) which is a party material Contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) or required to be disclosed by the Company on a Current Report on Form 8-K, (iii) which any of them is bound limits (or purports to limit) the freedom of Parent the Company or any of its Subsidiaries (or any of their present or future affiliates) to compete in any line of business, in any geographic area area, in any investment strategy or with any person, and (iii) neither Parent nor to solicit any client or to use the name “Epoch” or any variant thereof, or which requires the Company or any of its Subsidiaries is (or any of their present or future affiliates) to make referrals of business or requires the Company or any of its Subsidiaries (or any of their present or future affiliates) to make available investment opportunities or provide products or services to any person on a party priority or exclusive basis, (iv) which relates to the incurrence of indebtedness by the Company or any of its Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing transactions, (Av) any collective bargaining agreement or (B) any other agreement or instrument that (I) which grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of Parent the Company or any of its Subsidiaries, (IIvi) requires referrals which limits the payment of business dividends by the Company or requires Parent any of its Subsidiaries, (vii) which relates to a joint venture, strategic relationship or other similar agreement or arrangement entered into by the Company or one of its Subsidiaries (for its own account), (viii) which relates to an acquisition, divestiture, merger or similar transaction by the Company or one of its Subsidiaries (for its own account) and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (ix) which involves annual payments by the Company or its Subsidiaries in excess of $300,000 and which provides for a right of termination upon a change in control thereof, (x) which provides for material payments to be made by the Company or any of its Subsidiaries to make available investment opportunities to any person on upon a priority or exclusive basischange in control thereof, (IIIxi) requires Parent which is a consulting agreement or data processing, software programming or licensing Contract involving the payment by the Company or its Subsidiaries of more than $300,000 per annum (other than any such Contracts which are terminable by the Company or its applicable Subsidiary on 90 days or less notice without any required payment or other conditions (other than the condition of notice)), (xii) which involved payments by, or to, the Company or any of its Subsidiaries in fiscal year 2012, or which could reasonably be expected to use any product or service involve such payments during fiscal year 2013, of another person on an exclusive basis or more than $500,000, (IVxiii) which relates to Intellectual Property that is material indebtedness for borrowed money whether directly or indirectly by way to the business of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor of its Subsidiaries and that (a) involves the right to use the name “Epoch” or any Person, which Contract evidences variant thereof or relates to indebtedness in (b) requires payment by the principal amount of $250,000 Company or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment its Subsidiaries of more than $100,000 or 300,000 per annum, (yxiv) with a remaining term any investment or research consultant, solicitor or sales agent or otherwise with respect to the referral of greater than six months and reasonably expected business to involve the payment of more than $75,000 (other than contracts relating to banking credit Company or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to Subsidiaries involving annual payments by the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent Company or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 100,000 or (xv) which relates to any party, including but not limited to, any termination fee, breakup fee a material securities lending or reimbursement fee, pursuant to any repurchase agreement or understanding between Parent master agreement in respect thereof. Each Contract, arrangement or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, 4.18(a) (whether or not set forth in Section 4.13 of effect on the Company Disclosure Scheduledate hereof), is referred to herein as a “Parent Company Contract” in effect as of the date hereof”. Parent The Company has previously made available to the Company true Parent true, correct and complete copies of each Parent Contract Company Contract.
(b) Except as set forth in effect as Section 4.18(b) of the Company Disclosure Schedule, (i) each Company Contract is valid and binding on the Company or its applicable Subsidiary and in full force and effect, and, to the knowledge of the Company, is valid and binding on the other parties thereto, except as may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and except as the availability of specific performance, injunctive relief and other equitable remedies and those providing for equitable defenses may be limited by equitable principles of general applicability, (ii) the Company and each of its Subsidiaries and, to the knowledge of the Company, each of the other parties thereto, has performed all obligations required to be performed by it to date hereofunder each Company Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a breach or default on the part of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto, under any such Company Contract, except where such breach or default would not have, individually or in the aggregate, a Material Adverse Effect.
Appears in 1 contract
Certain Contracts. (a) Except As of the date hereof, except as disclosed in Section 4.13(a) 3.9 of the Parent MCCUE Disclosure Schedule, MXXXX has not, is not a partx xx, and is not bound by:
(a) any collective bargaining agreements;
(b) any agreements or arrangements that contain any severance pay or post-employment liabilities or obligations;
(c) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(d) any employment or consulting agreement with an employee or individual consultant or salesperson;
(e) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of 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;
(f) any fidelity or surety bond or completion bond;
(g) any lease of real or personal property that does not terminate within six months;
(h) any agreement of indemnification or guaranty;
(i) neither Parent nor any of agreement containing any covenant limiting its Subsidiaries is in breach of any commitment, agreement or other instrument freedom to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete engage in any line of business, business or to compete with any Person or in any geographic area or with during any person, and period of time;
(iii) neither Parent nor any of its Subsidiaries is a party to (Aj) any collective bargaining agreement relating to capital expenditures and involving future payments;
(k) any agreement relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of McCue's business;
(Bl) any mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (h) hereof;
(m) any letter of credit;
(n) any distribution, joint marketing or development agreement;
(o) any agreement pursuant to which it has granted or may grant in the future, to any Person a source-code license or option or other right to use or acquire a source-code;
(p) any agreement relating to trademarks, copyrights, licenses, software development or any other Intellectual Property; or
(q) any other agreement that is not cancelable without penalty within 30 days. Except for such alleged breaches, violations and defaults, and events that would constitute a breach, violation or instrument that (I) grants any right default with the lapse of first refusaltime, right giving of first offer notice, or similar right with respect to any material assets or properties of Parent or any of its Subsidiariesboth, (II) requires referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed are all noted in Section 4.13(b) 3.9 of the Parent Disclosure Schedule or Section 4.15(a) of the Parent MCCUE Disclosure Schedule, neither Parent nor MXXXX has not Materially brexxxxx, violated or defaulted under, or received notice that it has Materially breached, violated or defaulted under, any of its Subsidiariesthe terms or conditions of any agreement, nor contract or commitment required to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) 3.9 of the Parent MCCUE Disclosure Schedule (axx xxch agreement, contract or commitment, a "MCCUE Contract"). Each MCCUE Xxxxract is in full foxxx xnd effect and, except as otherwise disclosed in Section 3.9 of the MCCUE Disclosure Schedule, neither ix xxx subject to any default thereunder, of which MCCUE has knowledge, by any xxxxx obligated to MCCUE or any of the entering Subsidiaxxxx pursuant thereto. Section 3.9 of the MCCUE Disclosure Schedule idxxxxxies each MCCUE Contract that requires x xxnsent, waiver or approval to preserve all rights of, and benefits to, MCCUE under such MCCUE Contrxxx xs a result ox xxxering into of this Agreement nor the consummation of or effecting the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereof.
Appears in 1 contract
Certain Contracts. (a) Except Section 6.18 of the Parent Disclosure Letter sets forth a list, as disclosed of the date of this Agreement, of each of the following Contracts by which Parent is a party or bound:
(i) any lease of real or personal property providing for annual rentals of $100,000 or more;
(ii) any partnership, joint venture or other similar agreement or arrangement;
(iii) any Contract relating to (A) any outstanding Debt or (B) any guarantee furnished by or on behalf of Parent;
(iv) any Contract made since January 1, 2008 relating to the disposition or acquisition of material assets not in the ordinary course of business having a value in excess of $100,000;
(v) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Exchange Act);
(vi) any Contract or covenant that (A) purports to limit the type of business in which Parent may engage or the manner or locations in which any of them may so engage in any business or (B) could require the disposition of any material assets or line of business of Parent;
(vii) any Contract under which Parent has agreed to indemnify or reimburse any surety in respect of amounts paid or claimed against any surety bonds, which such surety bonds (bid, performance or other) were obtained in connection with services being performed by Parent are set forth in Section 4.13(a6.18(a)(vii) of the Parent Disclosure Schedule, Letter; and
(i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party to (A) any collective bargaining agreement or (Bviii) any other agreement Contract or instrument that (I) grants group of Contracts with a single counterparty that, if terminated or subject to a default by any right of first refusalparty thereto, right of first offer would reasonably be expected to result, individually or similar right with respect to any material assets or properties of Parent or any of its Subsidiaries, (II) requires referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwisein the aggregate, in respect of which a Parent Material Adverse Effect (the Company Contracts described in clauses (i)–(viii), whether or any Subsidiary is not included as an obligor exhibit to any Personthe Parent Reports, which Contract evidences or relates and together with all exhibits and schedules to indebtedness in the principal amount of $250,000 or moresuch Contracts, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with being referred to herein each as a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i“Parent Material Contract”)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true true, complete and complete correct copies of each Parent Material Contract that is not included as an exhibit to the Parent Reports.
(c) Each Parent Material Contract is in effect as full force and effect, and Parent has performed all obligations required to be performed by it, in all material respects, to date under each Parent Material Contract to which it is party. Parent (i)is not in material breach of or violation or default under any Parent Material Contract or (ii) has not received written notice of any such material breach, violation or default or the desire of the date hereofother party or parties to any such Parent Material Contract to exercise any rights such party has to cancel, terminate or repudiate such contract or exercise remedies thereunder. Each Parent Material Contract is enforceable by Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights and general principles of equity.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed in Section 4.13(alisted on Schedule 3.13(a) of the Parent ---------------- Equality Disclosure ScheduleSchedules or as an exhibit to the Equality SEC Documents, (i) as of the date of this Agreement, neither Parent Equality nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Equality Subsidiaries is a party to or is bound by any:
(i) contract, arrangement, commitment or understanding (whether written or oral) with respect to the employment or compensation of any directors, officers, employees, agents or consultants or with any labor union;
(ii) material franchise or license agreement, excluding those such agreements entered into in the ordinary course of business;
(iii) material agreement, arrangement or commitment (A) not made in the ordinary course of business and (B) pursuant to which Equality or any Equality Subsidiary is or will become obligated to invest in or contribute to any Equality Subsidiary other than pursuant to the Equality Plans (as that term is defined in Section ------- 3.11 hereof) or agreements relating to joint ventures or partnerships ---- set forth in Schedule 3.1(b) of the Equality Disclosure Schedules, --------------- true and complete copies of which, if any, have been furnished to Allegiant;
(iv) any material contract, arrangement, commitment or understanding (whether written or oral), including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan, (A) not made in the ordinary course of business, and (B) pursuant to which any of them is bound limits the freedom benefits of Parent which will be increased or be required to be paid, 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;
(v) contract containing covenants which limit the ability of Equality or any of its the Equality Subsidiaries to compete in any line of business, in any geographic area business or with any personperson or which involves any restrictions on the geographical area in which, and (iii) neither Parent nor or method by which, Equality or any of its the Equality Subsidiaries may carry on their respective businesses (other than as may be required by law or any applicable Governmental Entity);
(vi) contract or agreement which is a party "material contract" within the meaning of item 601(b)(10) of Regulations S-B as promulgated by the SEC to be performed after the date of this Agreement that has not been filed or incorporated by reference in the Equality SEC Documents;
(vii) lease with annual rental payments aggregating $50,000 or more;
(viii) loans or other obligations payable or owing to any officer, director or employee except (A) any collective bargaining agreement salaries, wages and directors' fees or other compensation incurred and accrued in the ordinary course of business and (B) obligations due in respect of any other agreement or instrument that (I) grants depository accounts maintained by any right of first refusal, right of first offer or similar right the foregoing with respect to any material assets or properties of Parent Equality or any of its Subsidiariesthe Equality Subsidiaries in the ordinary course of business; or
(ix) other agreement, (II) requires referrals of business contract, arrangement, understanding or requires Parent commitment involving an obligation by Equality or any of its the Equality Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than 50,000 and extending beyond six months and reasonably expected to involve from the payment date hereof that cannot be canceled without cost or penalty upon notice of more than $75,000 (30 days or less, other than contracts entered into in respect of deposits, loan agreements and commitments, notes security agreements, repurchase and reverse repurchase agreements, bankers' acceptances, outstanding letters of credit, participation agreements and other documents relating to banking credit transactions entered into by Equality or deposit transactions any of Equality Subsidiaries in the Ordinary Course ordinary course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed materialbusiness.
(b) Except as disclosed To the knowledge of Equality, each of the agreements, contracts, leases, insurance policies and other documents referred to in Section 4.13(bSchedules 3.13(a) of the Parent Equality Disclosure Schedule or Section 4.15(a) Schedules is a valid, ----------------- binding and enforceable obligation of the Parent Disclosure Scheduleparties sought to be bound thereby, neither Parent nor except as the enforceability thereof against the parties thereto (other than Equality or any of its the Equality Subsidiaries) may be limited by bankruptcy, nor insolvency, reorganization, moratorium, and other laws now or hereafter in effect relating to the Knowledge enforcement of Parentcreditors' rights generally, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan and except that equitable principles may limit the right to obtain specific performance or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a partyequitable remedies.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereof.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a) 2.16 of the Parent Company Disclosure Schedule, and except for Contracts with customers other than the Contracts with the largest 25 customers for the fiscal year ended December 31, 2009 (idetermined on the basis of the expected total dollar amount of net sales) if applicable, neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Company nor any of its Subsidiaries is a party to or bound by any Contract that: (Ai) any collective bargaining agreement involves or would reasonably be expected to involve aggregate future payments by Company and/or its Subsidiaries in excess of $5,000,000 or its foreign currency equivalent as of the date of this Agreement or aggregate future payments to Company and/or its Subsidiaries in excess of $5,000,000 or its foreign currency equivalent as of the date of this Agreement (Bexcluding purchase orders received and accepted by Company and/or its Subsidiaries in Company’s Ordinary Course of Business), (ii) any other agreement would be required to be filed with the SEC under Item 601 of Regulation S-K of the Exchange Act, if Company was subject thereto, (iii) provides for or instrument that (I) grants any right of first refusalotherwise relates to joint venture, right of first offer partnership, strategic alliance or similar right with respect arrangements, (iv) contains any non-competition, exclusivity, confidentiality or other obligation that purports to limit in any material assets respect the manner in which, or properties the geographic areas in which, the business of Parent Company or any of its Subsidiaries may be conducted or, after the Effective Time, would have the effect of limiting in any material respect the manner in which, or the geographic areas in which, the business of Acquiror or any of its Subsidiaries may be conducted, (v) constitutes or provides for indentures, mortgages, promissory notes, loan agreements, guarantees, letter of credit or other agreements or instruments of Company or any of its Subsidiaries or commitments for the borrowing or the lending by Company or any of its Subsidiaries of amounts in excess of $1,000,000, (vi) is a license of Intellectual Property Rights to or from Company or any of its Subsidiaries that is material to the business of Company or any of its Subsidiaries, (IIvii) requires referrals of business with any labor union, labor organization or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basisworks council, (IIIviii) requires Parent or contains any type of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor provision that becomes applicable due to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into execution and delivery of this Agreement nor or the consummation of the transactions contemplated hereunder will cause hereby, but, in the case of this subclause (viii), excluding those Contracts that contain provisions that relate solely to the payment of a monetary amount of less than $5,000,000, or (ix) is material to Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or and its Subsidiaries and such partytaken as a whole, other than the payments contemplated by this Agreementirrespective of amount or duration.
(db) Each contractCompany Contract is valid and binding on Company and/or its Subsidiaries, arrangementas applicable, commitment and in full force and effect. Each of Company and its Subsidiaries and, to the knowledge of Company, the other Person or understanding Persons thereto has in all material respects performed all of its obligations required to be performed by it under each Company Contract, except for instances of noncompliance where neither the type described costs to comply nor the failure to comply, individually or in this Section 4.13the aggregate, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred would reasonably be expected to herein as have a “Parent Contract” in effect as Material Adverse Effect on Company.
(c) As of the date hereofof this Agreement, no customer of Company or any of its Subsidiaries that, individually or in the aggregate with its Affiliates, accounted for 1.0% or more of the consolidated revenues of Company and its Subsidiaries during the 12-month period preceding the date of this Agreement has cancelled or otherwise terminated its relationship with Company or any Subsidiary of Company. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as As of the date hereofof this Agreement, no group of customers of Company or any of its Subsidiaries that, in the aggregate, accounted for 3.0% or more of the consolidated revenues of Company and its Subsidiaries during the 12-month period preceding the date of this Agreement has cancelled or otherwise terminated its relationship with Company or any Subsidiary of Company.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed in Section 4.13(a4.1(v) of the Parent Company Disclosure Schedule, (i) neither Parent nor any Schedule sets forth all of its Subsidiaries is in breach of any commitment, agreement or other instrument the Contracts to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent Company or any of its Subsidiaries (including the Transferred Subsidiaries) is a party or by which it is bound, in each case, relating to or in connection with the Business, (i) with respect to the employment or termination of, or severance or retirement arrangements relating to, any Business Employees involving the payment of them $100,000 or more per annum, or with any consultants involving the payment of $100,000 or more per annum, (ii) which is bound limits a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the freedom of Parent SEC), (iii) which provides for any payment by or to the Company or any of its Subsidiaries in excess of $100,000 in any year or which is not terminable within one year without penalty, (iv) which limits (or purports to limit) in any way the ability of the Company, any of the Transferred Subsidiaries or any of its Affiliates or of the Business to compete or engage in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent or any of its Subsidiaries, (II) which requires referrals of any business or requires Parent or any of its the Transferred Subsidiaries or Affiliates or the Business to make available investment opportunities to any person Person on a priority priority, equal or exclusive basis, (IIIv) which provides for or requires Parent any aggregate future payments in excess of $100,000 with respect to, or in connection with, any capital expenditures or the acquisition or construction of fixed assets, (vi) pursuant to which the Company or any of its Subsidiaries has entered into a partnership or joint venture with any other Person, (vii) which contains any ongoing indemnification obligation by the Company or any of its Subsidiaries which could reasonably require the payment by such entity in excess of $100,000 in the aggregate (excluding product warranties and indemnities to use any product the extent consistent with the Company’s Standard Terms and Conditions), (viii) relating to, or service of another person on an exclusive basis or (IV) relates to material evidencing, indebtedness for borrowed money or any guarantee of indebtedness for borrowed money, in each case involving an amount in excess of $100,000, (ix) since January 1, 2002, relating to the acquisition or disposition of any business (whether directly or indirectly by way merger, sale of purchase money obligationstock, conditional sale, lease, purchase, guaranty sale of assets or otherwise) which involves an asset value or purchase price in excess of $100,000, in respect of which (x) between the Company or any wholly-owned Subsidiary is an obligor to of the Company (other than the Transferred Subsidiaries) and any of the Transferred Subsidiaries, (xi) relating to, or evidencing, any indemnity or any guarantee of obligations of any Person, (xii) which Contract evidences imposes any confidentiality, non-disclosure or relates to indebtedness standstill obligation on the Company or its Affiliates (except confidentiality provisions entered into in the principal amount ordinary course of $250,000 business consistent with past practice) or morethe Business, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (yxiii) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) any of the Parent Disclosure Schedule benefits or Section 4.15(a) liabilities of which will be increased, or the vesting of the Parent Disclosure Schedule, neither Parent nor any benefits of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be accelerated, by the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation occurrence of the transactions contemplated hereunder by this Agreement, or the value of any of the benefits of which will cause be calculated on the Company or Parent to become obligated to make a payment in excess basis of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than of the payments transactions contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding . The Company has previously made available to the Buyer complete and accurate copies of each Contract of the type described in this Section 4.13, whether or not set forth in Section 4.13 4.1(v). All of the Contracts are valid and in full force and effect, except where the failure to be in full force and effect, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect. Neither the Company Disclosure Schedulenor any of its Subsidiaries nor the Business, is referred and to herein as a “Parent Contract” in effect as the Knowledge of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as Company, none of the date hereofother parties thereto, has violated any provision of, or committed or failed to perform any act which (with or without notice, lapse of time or both) would constitute a default under the provisions of any Contract, except in each case for those violations and defaults which, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Material Adverse Effect. Each Contract will be a valid and binding obligation of the Business and upon consummation of the transactions contemplated hereby will be in full force and effect.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Argonaut Technologies Inc)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) As of the Parent Disclosure Scheduledate hereof, (i) neither the Parent nor any of its Subsidiaries is in breach of a party to or is bound by any commitmentcontract, agreement arrangement, commitment or other instrument to understanding (whether written or oral) (i) which it is a party that is material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the results date of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basisthis Agreement, (ii) no commitment, agreement or other instrument to which Parent or any restricts the rights of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any material respect in any line of business, business in any geographic area or with any personPerson, and (iii) neither or which requires exclusive referrals of business or requires the Parent nor or any of its Subsidiaries is to offer specified products or services to their customers on an exclusive basis, (iii) with or to a party to labor union or guild (A) including any collective bargaining agreement agreement), (iv) which relates to the incurrence of indebtedness (other than capital leases) in the principal amount of $500,000 or more, (Bv) any other agreement or instrument that (I) which grants any Person a right of first refusal, right of first offer or similar right with respect to any material properties, assets or properties businesses of the Parent or any of its Subsidiaries, (IIvi) requires referrals which involves the purchase of business assets or requires interests, other than in the ordinary course of business, with a purchase price of $500,000 or more in any single case or $500,000 in all such cases, (vii) which involves the sale of assets, other than in the ordinary course of business, with a purchase price of $500,000 or more in any single case or $500,000 in all such cases, or (viii) which involved payments by or to the Parent or any of its Subsidiaries in fiscal year 2018 of more than $500,000 or which would reasonably be expected to make available investment opportunities involve payments by or to any person on a priority or exclusive basis, (III) requires the Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment during fiscal year 2019 of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) 500,000. Each contract, arrangement, commitment or understanding of the type described in this Section 4.135.13(a), whether or not set forth in Section 4.13 5.13(a) of the Company Parent Disclosure ScheduleLetter, is referred to herein as a “Parent Contract” in effect as ”, and neither the Parent nor any of its Subsidiaries has received written notice of any material violation of a Parent Contract by any of the date hereofother parties thereto. The Parent has previously made available to the Company true (which requirement may be satisfied by posting such information in the online data room established by the Parent prior to the date hereof) all contracts which involved payments by or to the Parent or any of its Subsidiaries in fiscal year 2018 of more than $500,000 or which would reasonably be expected to involve payments by or to the Parent or any of its Subsidiaries during fiscal year 2019 of more than $500,000 other than any such contract that is terminable at will on one-hundred twenty (120) days or less notice without payment of a penalty in excess of $10,000, and complete copies other than any contract entered into on or after the date hereof that is permitted under the provisions of Section 6.3.
(b) Except as would not reasonably be expected to result in, either individually or in the aggregate, a Parent Material Adverse Effect, (i) each Parent Contract is valid and binding on Parent and in full force and effect as (other than due to the ordinary expiration of the term thereof), and, to the Knowledge of Parent, is valid and binding on the other parties thereto, in each case, as enforceability may be limited by the Bankruptcy and Equity Exceptions, (ii) the Parent and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date hereofunder each Parent Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material default on the part of Parent or any of its Subsidiaries under any such Parent Contract.
Appears in 1 contract
Samples: Merger Agreement (Glowpoint, Inc.)
Certain Contracts. (a) Except as disclosed in Section 4.13(a) of Neither the Parent Disclosure Schedule, (i) neither Parent Company nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party to or by which any of them is bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC or required to be disclosed by the Company on a Current Report on Form 8-K) to be performed in whole or in part after the date of this Agreement, (ii) which limits the freedom of Parent the Company or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor which limits the Company’s or any of its Subsidiaries is a party Subsidiaries’ rights in and to the name “Commerce” or any derivation thereof, (Aiv) which relates to the incurrence of material indebtedness for borrowed money (other than deposit liabilities, advances and loans from the FHLB of Pittsburgh or of New York and sales of securities subject to repurchase, in each case incurred in the ordinary course of business consistent with past practice) by the Company or any collective bargaining agreement or of its Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing transactions, (Bv) any other agreement or instrument that (I) which grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of Parent the Company or any of its Subsidiaries, (IIvi) requires referrals which limits the payment of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly dividends by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor (vii) which relates to a joint venture, partnership, limited liability company agreement or other similar agreement or arrangement, or to the Knowledge formation, creation or operation, management or control of Parentany partnership or joint venture with any third parties, any other party thereto(viii) which relates to an acquisition, is in default in any material respect under any material leasedivestiture, contractmerger or similar transaction and which contains representations, mortgagecovenants, promissory note, deed of trust, loan indemnities or other commitment obligations (except those under including indemnification, “earn-out” or other contingent obligations) that are still in effect, or (ix) which Parent grants any person the right to use the name “Commerce” or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) derivation thereof. Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.14(a), whether or not publicly disclosed in the Company Reports or set forth in Section 4.13 4.14(a) of the Company Disclosure Schedule, is referred to herein as a “Parent Company Contract” in effect as of the date hereof”. Parent The Company has previously made available to the Company true Parent true, correct and complete copies of each Company Contract.
(b) (i) Each Company Contract is valid and binding on the Company or its applicable Subsidiary and in full force and effect, and, to the knowledge of the Company, is valid and binding on the other parties thereto, (ii) the Company and each of its Subsidiaries and, to the knowledge of the Company, each of the other parties thereto, has performed all obligations required to be performed by it to date under each Company Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a breach or default on the part of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto, under any such Company Contract, except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) The Company has provided to Parent Contract in effect true, correct and complete copies of the Network Agreement dated January 1, 1997 (as amended by Amendment No. 1 thereto, dated as of April 2002, and Amendment No. 2 thereto, dated as of September 29, 2004), by and between the date hereofCompany and Pennsylvania Commerce, and the Master Services Agreement, dated as of July 21, 2006, by and among the Company, Pennsylvania Commerce and Commerce Bank. Other than the agreements specified in the preceding sentence, neither the Company nor any of its Subsidiaries is a party to or is bound by any contract, arrangement, commitment or understanding (whether written or oral) with Pennsylvania Commerce or any of its affiliates. There are no restrictions of any manner on the sale, other transfer or encumbrance of the securities of Pennsylvania Commerce or any of its Subsidiaries owned by the Company.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a4.14(a) of the Parent Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operationsCompany Disclosure Letter, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or neither the Company nor any of its Subsidiaries is a party to or by which any of them is bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC or required to be disclosed by the Company on a Current Report on Form 8-K) to be performed in whole or in part after the date of this Agreement, (ii) which limits the freedom of Parent the Company or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party or to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent use the name Danversbank or any of its Subsidiariesvariant thereof, (II) or which requires referrals of business or requires Parent the Company or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (IIIiii) requires Parent which relates to the incurrence of indebtedness (other than deposit liabilities and advances and loans from the FHLB of Boston incurred in the ordinary course of business consistent with past practice) by the Company or any of its Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing transactions, (iv) which grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any of its Subsidiaries, (v) which limits the payment of dividends by the Company or any of its Subsidiaries, (vi) 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, (vii) which relates to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (viii) which provides for material payments to be made by the Company or any of its Subsidiaries to use any product upon a change in control thereof, (ix) which is a consulting agreement or service of another person on an exclusive basis data processing, software programming or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any licensing contract (x) involving the payment of more than $100,000 250,000 per annum (other than any such contracts which are terminable by the Company or its applicable Subsidiary on 60 days or less notice without any required payment or other conditions (yother than the condition of notice)), (x) with a remaining term which is not of greater than six months the type described in clauses (i) through (ix) above and which involved payments by, or to, the Company or any of its Subsidiaries in fiscal year ended December 31, 2010, or which could reasonably be expected to involve the payment such payments during fiscal year ending December 31, 2011, of more than $75,000 250,000 (other than contracts relating pursuant to banking credit Loans (as defined in Section 4.22(a)) originated or deposit transactions purchased by the Company and its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness consistent with past practice), or (xi) which shall not be deemed relates to material for purposes of clause Proprietary Rights (i)) shall be deemed material.
(b) Except as disclosed defined in Section 4.13(b4.21) (including permitting the use of the Parent Disclosure Schedule name Danversbank or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) variant thereof). Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.14(a), whether or not set forth publicly disclosed in Section 4.13 of the Company Disclosure ScheduleReports filed since January 1, 2010 and prior to the date hereof, is referred to herein as a “Parent Company Contract” in effect as of the date hereof”. Parent The Company has previously made available to the Company true Acquiror true, correct and complete copies of each Parent Company Contract.
(b) (i) Each Company Contract is valid and binding on the Company or its applicable Subsidiary and in effect full force and effect, and, to the knowledge of the Company, is valid and binding on the other parties thereto, (ii) the Company and each of its Subsidiaries and, to the knowledge of the Company, each of the other parties thereto, have in all material respects performed all obligations required to be performed by it to date under each Company Contract and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto, under any such Company Contract. No party to any Company Contract has given the Company or any of its Subsidiaries written notice of its intention to cancel, terminate, materially change the scope of rights under or fail to renew any Company Contract and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to any Company Contract, has repudiated in writing any material provision thereof.
(c) Section 4.14(c) of the Company Disclosure Letter contains a schedule showing the present value of the monetary amounts payable as of the date hereofspecified in such schedule, whether individually or in the aggregate (including good faith estimates of all amounts not subject to precise quantification as of the date of this Agreement, such as excise taxes or tax indemnification payments in respect of income or excise taxes), under any employment, change-in-control, severance or similar contract with any present or former employee, director or consultant of the Company or any of its Subsidiaries and identifying the types and estimated amounts of the in-kind benefits due under any Plans or Company Contract (other than a tax-qualified plan) for each such person, specifying the assumptions in such schedule.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed in Section 4.13(a) 5.16 of ----------------- the VTE Disclosure Memorandum or otherwise reflected in the VTE Financial Statements, none of the Parent Disclosure ScheduleVTE Entities, nor any of their respective Assets, businesses, or operations, is a party to, or is bound or affected by, or receives benefits under, (i) neither Parent nor any employment, severance, termination, consulting, or retirement Contract providing for aggregate payments to any Person in any calendar year in excess of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis$50,000, (ii) no commitmentany Contract relating to the borrowing of money by any VTE Entity or the guarantee by any VTE Entity of any such obligation (other than Contracts evidencing trade payables), agreement (iii) any Contract which prohibits or restricts any VTE Entity from engaging in any business activities in any geographic area, line of business or otherwise in competition with any other Person, (iv) any Contract between or among VTE Entities, Stockholders, any director, officer or employee of any VTE Entity and/or Related Persons, (v) any Contract involving Intellectual Property Rights (other than Contracts entered into in the ordinary course with customers and "shrink-wrap" software licenses), (vi) any Contract relating to the provision of data processing, network communication, or other instrument technical services to or by any VTE Entity, (vii) any Contract relating to the purchase or sale of any goods or services (other than Contracts entered into in the ordinary course of business and involving payments under any individual Contract not in excess of $100,000), (ix) any Contract providing VTE with the right to purchase or redeem any VTE Common Stock or other Equity Rights in VTE, (x) any other Contract or amendment thereto that would be required to be filed as an exhibit to a Form 10-K, if such form were required to be filed by VTE with the SEC as of the date of this Agreement, (xi) any Contract relating to indebtedness for borrowed money, (xii) any Contract relating to the lease of personal property, (xiii) any Contract relating to the lease of real property, and (xiv) any Contract relating to the development of strategic alternatives for, raising capital for, or selling VTE (together with all Contracts referred to in Sections 5.10, 5.15(a) and 5.19, the "VTE Contracts"). With respect to each VTE Contract disclosed pursuant to item (xi) of the preceding sentence, Section 5.16 of the VTE Disclosure Memorandum sets forth, with respect to each item of indebtedness, (A) the obligee, (B) the obligor, (C) principal amount outstanding as of the date hereof, (D) the interest rate, (E) payment schedule, (F) the maturity date, (G) collateral securing such indebtedness, (H) the name(s) of any third party guarantor(s), (I) a brief description of any Defaults which have not been cured, (J) the amount of any prepayment penalty or premium, and (K) any third party Consents to the transactions contemplated herein which are required pursuant to the terms of such VTE Contract. With respect to each VTE Contract disclosed pursuant to items (xii) and (xiii) of this Section 5.16, Section 5.16 of the VTE Disclosure Memorandum sets forth, with respect to each such lease, (R) the lessor (S) the lessee, (T) Assets subject to such lease, (V) expiration date of current term, (V) payment schedule, (W) the terms of any purchase option, (X) a brief description of any Defaults which have not been cured, (Y) the amount of any prepayment penalty or premium and (Z) any third party Consents to the transactions contemplated herein which are required pursuant to the terms of such VTE Contract. With respect to each Contract to which Parent or any of its Subsidiaries VTE Entity is a party or by which any of them it is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent or any of its Subsidiaries, (II) requires referrals of business or requires Parent or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except except as disclosed in Section 4.13(b) 5.16 of the Parent VTE Disclosure Schedule Memorandum: (i) the Contract is in full force and effect; (ii) no VTE Entity is in Default thereunder, other than Defaults which are not reasonably likely to have, individually or Section 4.15(ain the aggregate, a VTE Material Adverse Effect; (iii) no VTE Entity has repudiated or waived any material provision of the Parent Disclosure Scheduleany such Contract; and (iv) no other party to any such Contract is, neither Parent nor any of its Subsidiaries, nor to the Knowledge of ParentVTE, any other party thereto, is in default Default in any material respect under or has repudiated or waived any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) provision thereunder. All of the Parent Disclosure Schedule, neither the entering into indebtedness of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company any VTE Entity for money borrowed is prepayable at any time by such VTE Entity without penalty or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreementpremium.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereof.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a4.14(a) of the Parent FIBK Disclosure ScheduleSchedule as of the date hereof, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent FIBK nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (Awhether written or oral), but excluding any FIBK Benefit Plan: (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (ii) which contains a provision that limits (or purports to limit) in any collective bargaining agreement material respect the ability of FIBK (or after the Merger, the ability of the Surviving Entity and its Subsidiaries) to engage or compete in any business (Bincluding geographic restrictions and exclusive or preferential arrangements) and provides for, or would reasonably be expected to result in, payments by FIBK or its Subsidiaries after the date hereof in excess of $15,000,000 per year; (iii) with or to a labor union or guild (including any other agreement or instrument Collective Bargaining Agreement); (iv) that (I) grants any material right of first refusal, refusal or right of first offer or similar right with respect to any material assets assets, rights or properties of Parent FIBK or its Subsidiaries taken as a whole and provides for, or would reasonably be expected to result in, payments by FIBK or its Subsidiaries after the date hereof in excess of $15,000,000 per year; (v) which is a merger agreement, asset purchase agreement, stock purchase agreement, deposit assumption agreement, loss sharing agreement or other commitment to a Regulatory Agency in connection with the acquisition of a depository institution that continue in effect after the date of this Agreement that are material to FIBK and its Subsidiaries, taken as a whole; (vi) (A) that relates to the incurrence of indebtedness by FIBK or any of its Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing arrangements (II) requires referrals other than deposit liabilities, trade payables, federal funds purchased, advances and loans from the Federal Home Loan Bank and securities sold under agreements to repurchase, in each case incurred in the ordinary course of business consistent with past practice), or requires Parent (B) that provides for the guarantee, credit support, indemnification, assumption or endorsement by FIBK or any of its Subsidiaries to make available investment opportunities to of, or any person on a priority or exclusive basis, (III) requires Parent similar commitment by FIBK or any of its Subsidiaries to use with respect to, the obligations, liabilities or indebtedness of any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwiseother person, in respect the case of which the Company or any Subsidiary is an obligor to any Personeach of clauses (A) and (B), which Contract evidences or relates to indebtedness in the principal amount of $250,000 15,000,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause ; (i) above, any contract (x) involving the payment of more than $100,000 or (yvii) with any record or beneficial owner of FIBK Class B Common Stock or five percent (5%) or more of the outstanding FIBK Common Stock or voting power thereof in any such owner’s capacity as a remaining term shareholder of greater than six months and reasonably expected to involve the payment of more than $75,000 FIBK (other than contracts relating or arrangements for financial products or services, including loan agreements, account agreements and other indebtedness agreements) or (viii) which is a settlement, consent or similar agreement with respect to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent litigation against FIBK or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment for an amount in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) 15,000,000. Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.14(a) (excluding any FIBK Benefit Plan), whether or not set forth in Section 4.13 of the Company FIBK Disclosure Schedule, is referred to herein as a “Parent FIBK Contract.” in effect as of the date hereof. Parent FIBK has previously made available to the Company true GWB true, correct and complete copies of each Parent FIBK Contract in effect as of the date hereof.
(b) (i) Each FIBK Contract is valid and binding on FIBK or one of its Subsidiaries, as applicable, and in full force and effect, except as, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FIBK, (ii) FIBK and each of its Subsidiaries have in all material respects complied with and performed all obligations required to be complied with or performed by any of them to date under each FIBK Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FIBK, (iii) to the knowledge of FIBK, each third-party counterparty to each FIBK 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 FIBK Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FIBK, (iv) neither FIBK nor any of its Subsidiaries has knowledge of, or has received notice of, any violation of any FIBK Contract by any of the other parties thereto which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on FIBK and (v) 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 FIBK or any of its Subsidiaries or, to the knowledge of FIBK, any other party thereto, of or under any such FIBK Contract, except where such breach or default, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on FIBK.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a3.14(a) of the Parent TSYS Disclosure Schedule, (i) as of the date hereof, neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent TSYS nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (whether written or oral), but excluding any TSYS Benefit Plan:
(i) that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC);
(ii) that contains a non-compete or client, or customer non-solicit requirement or any other provision, in each case that materially restricts the conduct of any line of business by TSYS or any of its Subsidiaries or upon consummation of the Merger will materially restrict the ability of the Surviving Entity or any of its Subsidiaries to engage in any line of business or in any geographic region;
(iii) that is material and obligates TSYS or any of its Subsidiaries, or will obligate the Surviving Entity, to conduct business with any third party on a preferential or exclusive basis or contains “most favored nation” or similar provisions (other than any such contracts which are terminable by TSYS or any of its Subsidiaries on ninety (90) days or less notice without any required material payment or other material conditions, other than the condition of notice);
(iv) (A) that is an indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other agreement or commitment that provides for or relates to any collective bargaining agreement indebtedness of TSYS or any of its Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing arrangements, or (B) that provides for the guarantee, support, indemnification, assumption or endorsement by TSYS or any of its Subsidiaries of, or any similar commitment by TSYS or any of its Subsidiaries with respect to, the obligations, liabilities or indebtedness of any other agreement person, in the case of each of clauses (A) and (B), in the principal amount of $25,000,000 or instrument more;
(v) that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets assets, rights or properties of Parent TSYS or its Subsidiaries (other than any of its Subsidiaries, (II) requires referrals of business or requires Parent such contracts which are terminable by TSYS or any of its Subsidiaries to make available investment opportunities to on ninety (90) days or less notice without any person on a priority required material payment or exclusive basis, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to other material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or moreconditions, other than depositsthe condition of notice);
(vi) that is a consulting agreement or data processing, Federal Home Loan Bank software programming or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any licensing contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 20,000,000 per annum (other than any such contracts relating to banking credit which are terminable by TSYS or deposit transactions in any of its Subsidiaries on ninety (90) days or less notice without any required material payment or other material conditions, other than the Ordinary Course condition of Business, which shall not be deemed material for purposes of clause (inotice)) shall be deemed material.;
(bvii) Except as disclosed in Section 4.13(bpursuant to which TSYS or any of its Subsidiaries receives from any third party a license or similar right to any Intellectual Property that is material to TSYS, other than licenses with respect to software that is generally commercially available;
(viii) that is a settlement, consent or similar agreement and contains any material continuing obligations of the Parent Disclosure Schedule TSYS or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor ; or
(ix) that relates to the Knowledge acquisition or disposition of Parentany person, business or asset (other than any other party thereto, is contract or arrangement that provides solely for the acquisition of equipment or products in default in any material respect under any material lease, contract, mortgage, promissory note, deed the ordinary course of trust, loan or other commitment (except those business) and under which Parent TSYS or its Subsidiaries will be the creditorhave (A) a material continuing indemnification obligation or arrangement to which Parent is (B) a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company material “earn-out” or Parent to become obligated to make a similar contingent payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) obligations. Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.14(a), whether or not set forth in Section 4.13 of the Company TSYS Disclosure Schedule, is referred to herein as a “Parent TSYS Contract.” in effect as of the date hereof. Parent TSYS has previously made available to the Company true Global Payments true, correct and complete copies of each Parent TSYS Contract in effect as of the date hereof.
(i) Each TSYS Contract is valid and binding on TSYS or one of its Subsidiaries, as applicable, and in full force and effect, except as, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on TSYS, (ii) TSYS and each of its Subsidiaries have in all material respects complied with and performed all obligations required to be complied with or performed by any of them to date under each TSYS Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on TSYS, (iii) to the knowledge of TSYS, each third-party counterparty to each TSYS 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 TSYS Contract, except where such noncompliance or nonperformance, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on TSYS, (iv) neither TSYS nor any of its Subsidiaries has knowledge of, or has received notice of, any violation of any TSYS Contract by any of the other parties thereto which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect on TSYS and (v) 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 TSYS or any of its Subsidiaries or, to the knowledge of TSYS, any other party thereto, of or under any such TSYS Contract, except where such breach or default, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect on TSYS.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed set forth in Section 4.13(a4.14(a) of the Parent Disclosure Schedule, (i) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operationsCompany Disclosure Letter, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or neither the Company nor any of its Subsidiaries is a party to or by which any of them is bound by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC or required to be disclosed by the Company on a Current Report on Form 8-K) to be performed in whole or in part after the date of this Agreement, (ii) which limits the freedom of Parent the Company or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party or to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent use the name Danversbank or any of its Subsidiariesvariant thereof, (II) or which requires referrals of business or requires Parent the Company or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, (IIIiii) requires Parent which relates to the incurrence of indebtedness (other than deposit liabilities and advances and loans from the FHLB of Boston incurred in the ordinary course of business consistent with past practice) by the Company or any of its Subsidiaries, including any sale and leaseback transactions, capitalized leases and other similar financing transactions, (iv) which grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of the Company or any of its Subsidiaries, (v) which limits the payment of dividends by the Company or any of its Subsidiaries, (vi) 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, (vii) which relates to an acquisition, divestiture, merger or similar transaction and which contains representations, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations) that are still in effect, (viii) which provides for material payments to be made by the Company or any of its Subsidiaries to use any product upon a change in control thereof, (ix) which is a consulting agreement or service of another person on an exclusive basis data processing, software programming or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any licensing contract (x) involving the payment of more than $100,000 250,000 per annum (other than any such contracts which are terminable by the Company or its applicable Subsidiary on 60 days or less notice without any required payment or other conditions (yother than the condition of notice)), (x) with a remaining term which is not of greater than six months the type described in clauses (i) through (ix) above and which involved payments by, or to, the Company or any of its Subsidiaries in fiscal year ended December 31, 2010, or which could reasonably be expected to involve the payment such payments during fiscal year ending December 31, 2011, of more than $75,000 250,000 (other than contracts relating pursuant to banking credit Loans (as defined in Section 4.22(a)) originated or deposit transactions purchased by the Company and its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness consistent with past practice), or (xi) which shall not be deemed relates to material for purposes of clause Proprietary Rights (i)) shall be deemed material.
(b) Except as disclosed defined in Section 4.13(b4.21) (including permitting the use of the Parent Disclosure Schedule name Danversbank or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) variant thereof). Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.14(a), whether or not set forth publicly disclosed in Section 4.13 of the Company Disclosure ScheduleReports filed since January 1, 2010 and prior to the date hereof, is referred to herein as a “Parent Company Contract” in effect as of the date hereof”. Parent The Company has previously made available to the Company true Acquiror true, correct and complete copies of each Parent Company Contract.
(i) Each Company Contract is valid and binding on the Company or its applicable Subsidiary and in effect full force and effect, and, to the knowledge of the Company, is valid and binding on the other parties thereto, (ii) the Company and each of its Subsidiaries and, to the knowledge of the Company, each of the other parties thereto, have in all material respects performed all obligations required to be performed by it to date under each Company Contract and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material breach or default on the part of the Company or any of its Subsidiaries or, to the knowledge of the Company, any other party thereto, under any such Company Contract. No party to any Company Contract has given the Company or any of its Subsidiaries written notice of its intention to cancel, terminate, materially change the scope of rights under or fail to renew any Company Contract and neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any other party to any Company Contract, has repudiated in writing any material provision thereof.
(c) Section 4.14(c) of the Company Disclosure Letter contains a schedule showing the present value of the monetary amounts payable as of the date hereofspecified in such schedule, whether individually or in the aggregate (including good faith estimates of all amounts not subject to precise quantification as of the date of this Agreement, such as excise taxes or tax indemnification payments in respect of income or excise taxes), under any employment, change-in-control, severance or similar contract with any present or former employee, director or consultant of the Company or any of its Subsidiaries and identifying the types and estimated amounts of the in-kind benefits due under any Plans or Company Contract (other than a tax-qualified plan) for each such person, specifying the assumptions in such schedule.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed in set forth at Section 4.13(a3.11(a) of the Parent Edify Disclosure Schedule, to the knowledge of the Edify Group, none of Edify, Edify Holding or the Subsidiaries is a party to or bound by any written or oral:
(i) neither Parent nor agreement, contract or commitment for the future purchase of, or payment for, supplies or products, or for the performance of services by a third party, involving in any one case $100,000 annually or more;
(ii) conditional sale agreement under which Edify, Edify Holding or any of its the Subsidiaries is in breach either the seller or the purchaser;
(iii) other than with S1 (and which will be terminated at or prior to the Closing), any note, debenture, bond, trust agreement, letter of any commitmentcredit agreement, loan agreement or other instrument contract or commitment for the borrowing or lending of money or agreement or arrangement for a line of credit or guarantee, pledge or undertaking of the indebtedness of any other person;
(iv) agreement, contract or commitment materially limiting or restraining Edify, Edify Holding or any of the Subsidiaries from engaging or competing in any aspect of the business or granting any exclusive distribution rights;
(v) agreement, contract, or commitment relating to the disposition or acquisition by Edify, Edify Holding of any of the Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which it is a party Edify, Edify Holding or any of the Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise that is material to the results business of operationsEdify, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent Edify Holding or any of its the Subsidiaries is a party as currently conducted;
(vi) contracts that could reasonably be construed to constitute an assignment of ownership or the grant of an exclusive license to any Intellectual Property by which any of them is bound limits the freedom of Parent or S1 and/or any of its Subsidiaries to compete in any line of businessAffiliates, in any geographic area or with any personon the one hand, and (iii) neither Parent nor Edify, Edify Holding and/or any of its Subsidiaries is a party to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent or any of its the Subsidiaries, on the other hand; or
(IIvii) requires referrals of business contracts or requires Parent or any of its Subsidiaries agreements that include obligations to make available investment opportunities provide professional services entered into subsequent to any person on a priority or exclusive basisApril 1, (III) requires Parent or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly 2005 by way of purchase money obligationEdify, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company Edify Holding or any Subsidiary is an obligor to or under which, as of September 30, 2005, Edify, Edify Holding or any Person, Subsidiary had ongoing professional services projects and which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with include a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material provision for purposes of clause (i)) shall be deemed materialliquidated damages.
(b) Except as disclosed in Section 4.13(b3.11(b) of the Parent Edify Disclosure Schedule or Section 4.15(a) of sets forth under the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries captions "Suppliers," "Business IP Suppliers," "Customers" and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true and complete copies of each Parent Contract in effect as of the date hereof."Distributors":
Appears in 1 contract
Samples: Merger Agreement (S1 Corp /De/)
Certain Contracts. (a) Except as disclosed in Section 4.13(a3.14(a) of the Parent Greater Xxxxxx Disclosure Schedule, neither Greater Xxxxxx nor any of its Subsidiaries is a party to or bound by any contract or understanding (whether written or oral) with respect to the employment or termination of any present or former officers, employees, directors or consultants. Greater Xxxxxx has made available to ConnectOne true and complete copies of all written employment agreements, severance, change of control and other termination agreements with officers, employees, directors, or consultants to which Greater Xxxxxx or any of its Subsidiaries is a party.
(b) Except as disclosed in Section 3.14(b) of the Greater Xxxxxx Disclosure Schedule, (i) neither Parent Greater Xxxxxx nor any of its Subsidiaries is in breach of a party to or bound by any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent Greater Xxxxxx and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent Greater Xxxxxx or any of its Subsidiaries is a party or by which any of them is bound limits the freedom of Parent Greater Xxxxxx or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, and (iii) neither Parent Greater Xxxxxx nor any of its Subsidiaries is a party to (A) any collective bargaining agreement or (B) any other agreement or instrument that (I) grants any right of first refusal, right of first offer or similar right with respect to any material assets or properties of Parent Greater Xxxxxx or any of its Subsidiaries, (II) provides for material payments to be made by Greater Xxxxxx or any of its Subsidiaries upon a change in control thereof, (III) requires referrals of business or requires Parent Greater Xxxxxx or any of its Subsidiaries to make available investment opportunities to any person on a priority or exclusive basis, basis or (IIIIV) requires Parent Greater Xxxxxx or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Businessbasis. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 50,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 25,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(bc) Except as disclosed in Section 4.13(b3.14(c) of the Parent Greater Xxxxxx Disclosure Schedule or Section 4.15(a3.16(a) of the Parent Greater Xxxxxx Disclosure Schedule, neither Parent Greater Xxxxxx nor any of its Subsidiaries, nor to the Knowledge of ParentGreater Xxxxxx, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent Greater Xxxxxx or its Subsidiaries will be the creditor) or arrangement to which Parent Greater Xxxxxx is a party.
(cd) Except as set forth in Section 4.13(c3.14(d) of the Parent Greater Xxxxxx Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company Greater Xxxxxx or Parent ConnectOne to become obligated to make a any payment in excess of $50,000 any kind to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent Greater Xxxxxx or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(de) Except as set forth in Section 3.14(e) of the Greater Xxxxxx Disclosure Schedule, neither Greater Xxxxxx nor any of its Subsidiaries is a party to or bound by any contract (whether written or oral) with respect to the services of any directors, consultants or other independent contractors that, upon the consummation of the transactions contemplated by this Agreement, will (either alone or upon the occurrence of any additional acts or events) result in any payment or benefits (whether of severance pay or otherwise) becoming due, or the acceleration or vesting of any rights to any payment or benefits, from ConnectOne, Greater Xxxxxx, or any of their respective Subsidiaries to any director, officer, consultant or independent contractor thereof.
(f) Except as set forth in Section 3.14(f) of the Greater Xxxxxx Disclosure Schedule, neither Greater Xxxxxx nor any of its Subsidiaries is a party to or bound by any contract (whether written or oral) which (i) is a licensing, service or other agreement relating to any IT Assets, or is any other consulting agreement or licensing agreement not terminable on ninety (90) days or less notice involving the payment of more than $25,000 per annum, or (ii) that materially restricts the conduct of any line of business by Greater Xxxxxx or any of its Subsidiaries.
(g) Section 3.14(g) of the Greater Xxxxxx Disclosure Schedule contains a schedule showing the good faith estimated present value as of December 31, 2017 of the monetary amounts payable (including any Tax indemnification payments in respect of income and/or excise Taxes) and identifying the in-kind benefits due under any plan other than a Tax-qualified plan for each director of Greater Xxxxxx and each officer of Greater Xxxxxx with the position of vice president or higher, specifying the assumptions in such schedule. Each contract, arrangement, commitment or understanding of the type described in this Section 4.133.14, whether or not set forth in Section 4.13 3.14 of the Company Greater Xxxxxx Disclosure Schedule, is referred to herein as a “Parent Greater Xxxxxx Contract.” in effect as of the date hereof. Parent Greater Xxxxxx has previously made available to the Company ConnectOne true and complete copies of each Parent Contract in effect as of the date hereofGreater Xxxxxx Contract.
Appears in 1 contract
Certain Contracts. (a) Except as disclosed in Section 4.13(a) As of the Parent Disclosure Scheduledate hereof, (i) neither Parent the Company nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent or any of its Subsidiaries is a party to or by which any of them is bound limits by any contract, arrangement, commitment or understanding (whether written or oral) (i) which is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the freedom SEC) to be performed after the date of Parent this Agreement, (ii) which restricts the rights of the Company or any of its Subsidiaries to compete in any material respect in any line of business, business in any geographic area or with any personPerson, and (iii) neither Parent nor or which requires exclusive referrals of business or requires the Company or any of its Subsidiaries is to offer specified products or services to their customers on an exclusive basis, (iii) with or to a party to labor union or guild (A) including any collective bargaining agreement agreement), (iv) which relates to the incurrence of indebtedness (other than capital leases) in the principal amount of $500,000 or more, (Bv) any other agreement or instrument that (I) which grants any Person a right of first refusal, right of first offer or similar right with respect to any material properties, assets or properties businesses of Parent the Company or any of its Subsidiaries, (IIvi) requires referrals which involves the purchase of business assets or requires Parent interests, other than in the ordinary course of business, with a purchase price of $500,000 or more in any single case or $500,000 in all such cases, (vii) which involves the sale of assets, other than in the ordinary course of business, with a purchase -25- price of $500,000 or more in any single case or $500,000 in all such cases, or (viii) which involved payments by or to the Company or any of its Subsidiaries in fiscal year 2018 of more than $500,000 or which would reasonably be expected to make available investment opportunities involve payments by or to any person on a priority or exclusive basis, (III) requires Parent the Company or any of its Subsidiaries to use any product or service of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary is an obligor to any Person, which Contract evidences or relates to indebtedness in the principal amount of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment during fiscal year 2019 of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed material.
(b) Except as disclosed in Section 4.13(b) of the Parent Disclosure Schedule or Section 4.15(a) of the Parent Disclosure Schedule, neither Parent nor any of its Subsidiaries, nor to the Knowledge of Parent, any other party thereto, is in default in any material respect under any material lease, contract, mortgage, promissory note, deed of trust, loan or other commitment (except those under which Parent or its Subsidiaries will be the creditor) or arrangement to which Parent is a party.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) 500,000. Each contract, arrangement, commitment or understanding of the type described in this Section 4.134.12(a), whether or not set forth in Section 4.13 4.12(a) of the Company Disclosure ScheduleLetter, is referred to herein as a “Parent Company Contract” in effect as ”, and neither the Company nor any of its Subsidiaries has received written notice of any material violation of a Company Contract by any of the date hereofother parties thereto. Parent The Company has previously made available to the Parent (which requirement may be satisfied by posting such information in the online data room established by the Company true and complete copies of each Parent Contract in effect as of prior to the date hereof) all contracts which involved payments by or to the Company or any of its Subsidiaries in fiscal year 2018 of more than $500,000 or which would reasonably be expected to involve payments by or to the Company or any of its Subsidiaries during fiscal year 2019 of more than $500,000 other than any such contract that is terminable at will on one-hundred twenty (120) days or less notice without payment of a penalty in excess of $10,000, and other than any contract entered into on or after the date hereof that is permitted under the provisions of Section 6.2.
(b) Except as would not reasonably be expected to result in, either individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Contract is valid and binding on the Company and in full force and effect (other than due to the ordinary expiration of the term thereof), and, to the Knowledge of the Company, is valid and binding on the other parties thereto, in each case, as enforceability may be limited by the Bankruptcy and Equity Exceptions, (ii) the Company and each of its Subsidiaries has in all material respects performed all obligations required to be performed by it to date under each Company Contract, and (iii) no event or condition exists which constitutes or, after notice or lapse of time or both, would constitute a material default on the part of the Company or any of its Subsidiaries under any such Company Contract.
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Samples: Merger Agreement (Glowpoint, Inc.)
Certain Contracts. (a) Except as disclosed in for this Agreement, Section 4.13(a3.18(a) of the Parent Company Disclosure ScheduleLetter sets forth, as of the date of this Agreement, each Contract (ieach Contract described below in this Section 3.18(a), a “Company Contract”) neither Parent nor any of its Subsidiaries is in breach of any commitment, agreement or other instrument to which it is a party that is material to the results of operations, cash flows or financial condition of Parent and its Subsidiaries on a consolidated basis, (ii) no commitment, agreement or other instrument to which Parent Company or any of its Subsidiaries is a party or by which Company or any of them its Subsidiaries is bound limits that:
(i) involves or would reasonably be expected to involve, over a period of one year or less, either aggregate payments by Company or its Subsidiaries in excess of $1,000,000 or aggregate payments to Company or its Subsidiaries in excess of $1,000,000 as of the freedom date of this Agreement (excluding purchase orders in the ordinary course of business);
(ii) involves (A) any indebtedness for borrowed money owing to, or any guaranty of obligations of, any Person (other than Company or any of its Subsidiaries), including any credit agreement, note, bond, mortgage, debenture or other similar instrument, any letter of credit or similar facility or any agreement evidencing financial hedging or similar trading activities, or (B) the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business);
(iii) is required to be filed by Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K promulgated under the Securities Act;
(iv) (A) by its terms, restricts the conduct by Company or any of its Subsidiaries in any line of business or geographic area (including pursuant to any standstill, non-competition, non-solicitation or exclusivity provisions) and (B) is material to Company and its Subsidiaries, taken as a whole, or that, after the Closing, would restrict Parent or any of its Subsidiaries to compete Affiliates, other than Company or its Subsidiaries;
(v) provides for “most favored nation” or similar rights in favor of any line of business, in any geographic area Person (other than Company or with any person, and (iii) neither Parent nor any of its Subsidiaries is a party Subsidiaries);
(vi) provides for the purchase or sale, option to (A) any collective bargaining agreement purchase or (B) any other agreement or instrument that (I) grants any sell, right of first refusal, right of first offer or similar any other contractual right with respect to purchase, sell, dispose of or lease any material assets asset or properties any Owned Real Property of Company or any other Person;
(vii) is an acquisition Contract pursuant to which Company or any of its Subsidiaries has continuing indemnification, “earn-out” or other contingent payment obligations, in each case that would reasonably be expected to exceed $250,000;
(viii) is a material settlement, conciliation or similar agreement (A) pursuant to which Company has an outstanding obligation to pay consideration in excess of $250,000 as of the date of this Agreement or (B) that materially limits the operations of Company and its Subsidiaries (or Parent or any of its Affiliates, other than Company or its Subsidiaries, after the Closing);
(IIix) requires referrals is a material Contract providing for the license by or to Company or any of business its Subsidiaries of Intellectual Property Rights (other than readily commercially available software);
(x) is a Management Agreement, joint venture agreement or requires Parent Real Estate Lease Document;
(xi) obligates Company or any of its Subsidiaries to make available investment opportunities any capital commitment or expenditure (including pursuant to any person on a priority joint venture) in excess of $50,000 individually (or exclusive basis$1,000,000 in the aggregate with other such Contracts) and that is not terminable by Company or its Subsidiaries upon ninety (90) days’ notice or less without penalty or liability to Company or its Subsidiaries;
(xii) except for Company Permits, (IIIA) requires Parent is with any Governmental Entity (including the secretary, administrator or other official thereof) or relates to any program operated by a Governmental Entity and (B) is material to Company and its Subsidiaries, taken as a whole;
(xiii) except for any Employee Benefit Plan, is with any Affiliate (other than Company or any of its Subsidiaries), director, manager or officer of Company or any of its Subsidiaries or with any “associate” or any member of the “immediate family” (as such terms are defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any such director, manager or officer; or
(xiv) is a Contract pursuant to use which Company, any product or service Subsidiary of another person on an exclusive basis or (IV) relates to material indebtedness for borrowed money whether directly or indirectly by way of purchase money obligation, conditional sale, lease, purchase, guaranty or otherwise, in respect of which the Company or any Subsidiary Affiliate of Company provides any element of care or services to residents of a Facility where such provider is an obligor to any Person, which Contract evidences or relates to indebtedness in not the principal amount licensed operator of $250,000 or more, other than deposits, Federal Home Loan Bank or Federal Reserve borrowings and reverse repurchase agreements in the Ordinary Course of Business. For purposes of clause (i) above, any contract (x) involving the payment of more than $100,000 or (y) with a remaining term of greater than six months and reasonably expected to involve the payment of more than $75,000 (other than contracts relating to banking credit or deposit transactions in the Ordinary Course of Business, which shall not be deemed material for purposes of clause (i)) shall be deemed materialsuch Facility.
(b) Except as disclosed for matters that, individually or in Section 4.13(bthe aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect: (i) each of the Parent Disclosure Schedule Company Contracts is in full force and effect and is a valid and legally binding obligation of Company and its Subsidiaries to the extent party thereto and, to the knowledge of Company, each other party thereto, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or Section 4.15(aaffecting creditors’ rights or by general equity principles; (ii) each of Company and its Subsidiaries and, to the Parent Disclosure Scheduleknowledge of Company, each other Person party thereto has performed all of its obligations required to be performed by it under each Company Contract; (iii) neither Parent Company nor any of its SubsidiariesSubsidiaries has received written notice of termination, nor to cancellation or the Knowledge existence of Parentany event or condition which constitutes, or after notice or lapse of time, or both, will constitute, a breach or a default on the part of Company or any other party thereto, is in default in any material respect of its Subsidiaries under any material lease, contract, mortgage, promissory note, deed Company Contract; and (iv) no party to any of trust, loan the Company Contracts has provided written notice (A) exercising or other commitment threatening exercise of any termination rights with respect thereto or (except those under which Parent or its Subsidiaries will be the creditorB) or arrangement of any dispute with respect to which Parent is a partyany Company Contract.
(c) Except as set forth in Section 4.13(c) of the Parent Disclosure Schedule, neither the entering into of this Agreement nor the consummation of the transactions contemplated hereunder will cause the Company or Parent to become obligated to make a payment in excess of $50,000 to any party, including but not limited to, any termination fee, breakup fee or reimbursement fee, pursuant to any agreement or understanding between Parent or its Subsidiaries and such party, other than the payments contemplated by this Agreement.
(d) Each contract, arrangement, commitment or understanding of the type described in this Section 4.13, whether or not set forth in Section 4.13 of the Company Disclosure Schedule, is referred to herein as a “Parent Contract” in effect as of the date hereof. Parent has previously made available to the Company true Parent a correct and complete copies copy of each Parent Contract in effect as of the date hereofCompany Contract.
Appears in 1 contract
