Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type: (a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries; (b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount; (c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries; (d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries; (e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000); (f) any agreement for the lease of real property by the Company or any of its Subsidiaries; (g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties; (h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party; (i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction); (j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c)); (k) any contract or agreement with any Governmental Authority; (l) any material sales, marketing or advertising agreement; (m) any employment contract; (n) any student loan guaranty or surety agency agreement; or (o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 2 contracts
Samples: Merger Agreement (Cit Group Inc), Agreement and Plan of Merger (Education Lending Group Inc)
Contracts and Commitments. (a) Except as set forth in on Schedule 2.11(a), as of the date of this Agreement, neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries nor Seller (solely with respect to the Business) is a party to or bound by any agreement, contract, commitment or other written instrument of the following typefollowing, whether written or oral:
(ai) any loan agreementpension, origination agreementprofit sharing, indenturestock option, credit facilityemployee stock purchase or other plan, securitization agreementprogram, mortgagepolicy, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating arrangement providing for deferred or other compensation (including any bonuses or other renumeration and whether in cash or otherwise) to any current or former managers, officers, employees or other individual service providers or severance, change in control, or transaction related bonus agreements, programs, policies or arrangements;
(iii) any contract for the borrowing employment or service of money any current manager, officer, employee or obtaining extensions other individual service provider on a full-time, part-time, consulting or other basis providing for annual compensation opportunities in excess of credit by $150,000;
(iii) any collective bargaining agreement or other contract with any union, works council, or other labor organization or employee representative (each, a “Labor Agreement”);
(iv) any contract under which the Company or any of its Subsidiaries has advanced or loaned money to, guaranteed an amount for the benefit of or made an Investment in any other Person;
(iiv) any agreement, promissory note or indenture relating to any Indebtedness or the loaning guarantees thereof or the mortgaging, pledging, creating, granting or otherwise placing a Lien on any material asset or group of money assets of the Company or granting extensions its Subsidiaries;
(vi) any lease or agreement pursuant to which the Company or its Subsidiaries is lessee of credit or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $100,000;
(other than student loansvii) any lease or agreement pursuant to which the Company or its Subsidiaries is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company or any of its Subsidiaries;
(bviii) any contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales contracts, orders incurred in the ordinary course of business, and contracts responsive to clause (ii) above or clause (xiv) below;
(ix) any contract or agreement pursuant (A) relating to which the licensing or granting of any rights or covenants with respect to, any Intellectual Property (whether granted to or by the Company or any of its Subsidiaries, or to or by Seller or any of its other Affiliates with respect to the Business), other than (1) non-exclusive licenses granted to the Company or any of its Subsidiaries has purchasedin the ordinary course of business for generally available commercial, generated unmodified, “off the shelf” software used solely for the Company’s or sold student loans its applicable Subsidiary’s own internal use for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $100,000 (“Software Licenses”), (2) licenses for Open Source Software, (3) incidental non-exclusive licenses of Intellectual Property granted in the ordinary course of business that are ancillary to the overall subject matter of the contract or agreement, the primary purpose of which is something other than the grant of rights under Intellectual Property (“Ancillary Licenses”), (B) related to the acquisition, divestiture, or development of Intellectual Property (other than employee invention assignment agreements, consulting agreements, or contractor agreements, in each case, executed on the Company’s or its applicable Subsidiary’s standard form of agreement, which agreements, together with the Software Licenses and Ancillary Licenses, shall be deemed to be Material Contracts) or (C) affecting the Company’s or any of its Subsidiaries’ ability to use, enforce, or disclose any Company Intellectual Property or otherwise arising out of any Intellectual Property-related dispute (which shall include concurrent use agreements, settlement agreements and consent to use agreements);
(x) any contract or agreement with a term of more than six months which is not terminable upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of Five Million Dollars ($5,000,000) in principal amount250,000 annually;
(cxi) any contract or agreement relating regarding any material indemnification provided to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(gxii) any contract or agreement that subjects the Company or containing any of its Subsidiaries the following provisions enforceable against the Company: (A) most favored customer pricing covenants; (B) non-competition with any Person in any business; (C) prohibitions on engagement in any business in any market or geographic area or during any time period; (D) non-solicitation of clients or customers; (E) non-solicitation and/or non-hire of any individual that does not include exceptions for general solicitations or advertisements (other than those entered into in the ordinary course of business); (F) grants of exclusive rights, rights of first refusal, rights of first negotiation, or similar rights to restrictions on any Person; (G) scheduled price reductions, customer credits or similar concessions; (H) commitments to future development or modifications of any of the competitive conduct Company’s Software (other than pursuant to commitments performed in the ordinary course of their businesses business under service level agreements, maintenance and support agreements); (I) revenue-sharing or prohibits commission obligations; or (J) obligation to purchase all or substantially all of the Company’s requirements of a particular product or service from a supplier or vendor, or otherwise restricts the Company containing “take or pay” or minimum purchase provisions;
(xiii) any of its Subsidiaries from soliciting customerssettlement, vendors conciliation or employees of third similar agreement with any Governmental Authority or other Person containing obligations yet to be performed or completed by either or both parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(kxiv) any contract or agreement with any Governmental AuthorityMaterial Customer or Material Supplier (except statements of work or purchase orders entered into in the ordinary course of business);
(lxv) any material salescontract or agreement, marketing or advertising agreement;
expected to generate receipts in excess of $100,000 during the Company’s current fiscal year, with (mA) any employment contract;
Governmental Authority, (nB) any student loan guaranty prime contractor of a Governmental Authority in its capacity as a prime contractor to any Governmental Authority or surety agency agreement(C) any subcontractor at any tier with respect to any agreement or contract of a type described in clauses (A) or (B) above; or
(oxvi) any other contractagreement which is material to the Company’s operations or business prospects or involves a consideration in excess of $250,000 annually. The descriptions of all contracts, agreement leases, agreements and instruments identified on Schedule 2.11(a) together with the disclosures on Schedule 2.11(b) identify all amendments, waivers and other modifications to such agreements.
(b) Each of the contracts, leases, agreements and instruments set forth or commitment required to be set forth on Schedule 2.11(a) (each, a “Material Contract”) is valid, binding and enforceable in accordance with its terms, and shall be in full force and effect without penalty in accordance with its terms upon consummation of the Closing (unless such Material Contract has expired in accordance with its terms). Except as set forth on Schedule 2.11(b), (i) with respect to which the aggregate amount that could reasonably be expected Company and its Subsidiaries has performed all obligations required to be paid performed by it under each Material Contract and (with or without the lapse of time or the giving of notice, or both) is not in breach or default thereunder, (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company or its Subsidiaries under any Material Contract, (iii) neither the Company nor any Subsidiary has any present expectation or intention of not fully performing all of its obligations under a Material Contract, (iv) no Material Contract is currently subject to or is expected to be subject to cancellation, termination or any other material modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery, and (v) neither the Company nor any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in has Knowledge of any twelve (12)-month period following breach or anticipated breach by the date of this Agreementother parties to any Material Contract. There are no renegotiations of, or (ii) that is otherwise material attempts or requests to the Company renegotiate or outstanding rights to renegotiate, any terms of any of its Subsidiaries. the Material Contracts.
(c) The Company has made available to Parent Buyer true, correct and complete copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force written contracts, leases, agreements and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge instruments and an accurate description of each of the Companyoral arrangements, contracts and agreements which are referred to on Schedule 2.11(a), together with all amendments, waivers or other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractchanges thereto.
Appears in 2 contracts
Samples: Transaction Support Agreement (UpHealth, Inc.), Membership Interest Purchase Agreement (UpHealth, Inc.)
Contracts and Commitments. (a) Except as set forth in the Company SEC Reports or on Section 3.10 3.11(a) of the Seller Disclosure Letter, no Target Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following typeany:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or CBA;
(ii) Contract, agreement or indenture relating to any Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any portion of their properties or assets (A) pursuant to which, any Target Company has incurred or may incur Indebtedness exceeding the loaning of money or granting extensions of credit (other than student loans) by the Company or Threshold Amount for which any of its Subsidiariesany Target Company will be liable following the Closing, or (B) relating to any Liens on assets of any Target Company;
(biii) guaranty of any Indebtedness or other material guaranty;
(iv) Contract, lease or agreement under which it is lessee of, or holds, uses or operates any real or personal property or assets owned by any other party, for which the annual rental or payment commitment exceeds the Threshold Amount;
(v) Contracts or group of related Contracts with any Top Customer or any Top Supplier;
(vi) Contracts or agreements relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Target Company since the Look-back Date or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Target Company or, pursuant to which the any Target Company have any continuing “earn out” or other contingent payment obligations or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amountsurviving material indemnification obligations;
(cvii) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty limited liability company or similar agreement involving with any third party (including any agreement providing for joint development or marketing);
(A) Contract pursuant to which any Target Company licenses, or is otherwise permitted by a third party to practice, use or register, or receive any other rights under, any material Intellectual Property Rights (other than “shrink wrap licenses,” “click through” licenses and licenses to off-the-shelf Software on standard commercial terms with fees of less than the sharing Threshold Amount per year), (B) Contract pursuant to which a third party licenses, or is permitted to use or register, or granted any other rights under, any Company-Owned IP Rights (other than non-exclusive licenses granted by a Target Company to customers in the Ordinary Course of profits and/or expenses between Business), or (C) Contract affecting any Target Company’s ability to use, enforce, or disclose any material Intellectual Property Rights, such as covenant-not-to-sue, coexistence, consent-to-use, concurrent use, or settlement agreements;
(ix) distribution, sales representative, marketing or similar Contract or agreement that required any Target Company to make commission payments under such agreement in excess of the Threshold Amount during the twelve (12)-month period ended on the Balance Sheet Date;
(x) Contract or agreement pursuant to which any Target Company would be required to make, in the aggregate, capital expenditures in excess of the Threshold Amount;
(xi) Contract or agreement that (a) materially limits the ability of any Target Company to compete in any line of business or with any product or with any Person or in any geographic area or market or during any period of time or (b) contains covenants that restrict the business activity of any Target Company in any material respect (other than non-disclosure agreements entered into in the Ordinary Course of Business);
(xii) Contract or agreement that contains “most-favored-nation” obligations or restrictions, or rights of first refusal or offer or any similar requirement or right, in each case binding any Target Company in favor of its Subsidiaries and any third party;
(ixiii) Contract or agreement where any business acquisition or divestiture agreement (Target Company is subject to a requirement of exclusive dealing or any letter of intent, term sheet or draft agreement relating to any such pending transaction)similar exclusivity obligation;
(jxiv) any contract relating in whole interest, currency or in part to the licensing to hedging derivatives or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c))similar Contracts;
(kxv) any contract Contract or agreement with that limits the incurrence of Indebtedness or the declaration or payment of any Governmental Authoritydividends or other distributions;
(lxvi) Contract or agreement that involves payment to or by any material sales, marketing or advertising agreementTarget Company in excess of the Threshold Amount annually;
(mxvii) any employment contractContract or agreement whose termination (other than those termination by passage of time) would have a Seller Material Adverse Effect;
(nxviii) management agreement or other Contract for the employment or engagement of any student loan guaranty Service Provider on a full time, part time, consulting or surety agency agreementother basis that: (A) provides for annual compensation (whether cash and/or otherwise) which may exceed $150,000, (B) provides for the payment of any cash or other compensation or benefits upon or in connection with the consummation of the transactions contemplated by this Agreement, (C) provides for the payment of any cash or other compensation or benefits related to a retention, severance, transaction-based or change in control bonus or other similar Contract with any Service Provider or (D) restricts any Target Company’s ability to terminate the employment or engagement of any Service Provider at any time for any lawful reason or for no reason without penalty or Liability; or
(oxix) Contract or agreement that relates to the settlement of any other contract, agreement Action (A) with any Governmental Authority since the Look-back Date; (B) that materially restricts or commitment imposes obligations upon any Target Company; or (C) requires payment by an Target Company of more than the Threshold Amount after the date hereof.
(b) Each Contract described in clauses (i) with respect through (xix) of Section 3.11(a) is a “Material Contract”. Seller has provided to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent Purchaser true and correct copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”), together with all supplements, amendments, waivers or other changes thereto.
(c) Neither any Target Company nor, to Seller’s Knowledge, any other party thereto is in material breach of, violation of or default under any Material Contract. Except as disclosed in Section 3.10 No event has occurred that with notice or lapse of the Company Disclosure Schedule (i) each time or both would constitute a material breach of, violation of the or default under, any Material Contract by any Target Company, or, to Seller’s Knowledge, any counterparty. All Material Contracts is are valid and in full force and effecteffect and constitute legal, (ii) valid and binding obligations of the applicable Target Company or applicable Subsidiary, as the case may be, and, to the knowledge of the CompanySeller’s Knowledge, all other parties to the Material Contracts haveeach counterparty, in all material respects, performed their obligations and are not in default under enforceable against the Material Contractsapplicable Target Company and, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of noticeto Seller’s Knowledge, the passage counterparty thereto in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar Laws affecting creditors’ rights and general principles of time, or both, would constitute a default by equity affecting the Company or applicable Subsidiary, as the case may be, or, to the knowledge availability of the Company, any specific performance and other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractequitable remedies.
Appears in 2 contracts
Samples: Business Combination Agreement (Alternus Clean Energy, Inc.), Business Combination Agreement (Clean Earth Acquisitions Corp.)
Contracts and Commitments. (a) Except as set forth in on Schedule 3.09, neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreement(each, contract, commitment or other written instrument of the following type:a “Material Contract”):
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company collective bargaining agreement or any other agreement with any labor union, works council or staff association holding representational rights with respect to employees of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(bii) bonus, pension, profit sharing, change of control, retention, severance, retirement or other form of deferred compensation plan, other than as described in Section 3.13 of the Disclosure Schedules;
(iii) equity purchase, option or similar plan, and contracts that contain restrictions with respect to the payment of dividends or any other distribution in respect of capital stock or other equity interests;
(iv) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis providing for fixed compensation in excess of $200,000 per annum;
(v) agreement pursuant or indenture relating to any Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any material portion of their assets;
(vi) guaranty of any obligation for Indebtedness or other material guaranty;
(vii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $50,000;
(viii) lease or agreement under which it is lessor of, or permits any third party to hold or operate any personal property owned by the Company or any of its Subsidiaries, for which the annual rental exceeds $50,000;
(ix) agreements relating to any completed or pending material business acquisition or divestiture by the Company or any of its Subsidiaries has purchased, generated within the last three (3) years or sold student loans in excess any such contracts entered into at any time pursuant to which there exists any future obligation to make any payments to any third party upon the occurrence of Five Million Dollars certain events ($5,000,000) in principal amountincluding earn outs but excluding indemnification obligations pursuant to which there are no pending claims);
(cx) license agreement relating to the use in the Business of any third party Intellectual Property (excluding license agreements for commercial or “off-the-shelf” software or services) and any agreement relating to the extension use or registration by a third party of insurance Intellectual Property of the Company or any of its Subsidiaries (excluding non-disclosure agreements and license agreements of such Intellectual Property granted to customers, in each case, entered into in the providing ordinary course of business);
(xi) contract which materially prohibits the Company or any of its Subsidiaries from competing with any Person or freely engaging in business anywhere in the world;
(xii) contracts or agreements granting most favored nation pricing or exclusive rights to a counterparty or requiring it to purchase all or substantially all of its requirements for a product or service or a minimum quantity of a product or service from a particular Person;
(xiii) joint venture, partnership or limited partnership agreements, including any agreement or commitment to make any loan or capital contribution to any joint venture or partnership;
(xiv) contracts or agreements which grant any right of first refusal or first offer or similar right or otherwise relating to the acquisition or disposition of any guarantee, pursuant to the Higher Education Act material assets or business of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(dxv) settlement, conciliation or similar agreement with any agreement by which Governmental Authority or any other Person;
(xvi) contracts or agreements loaning equipment to customers or granting aggregate offering discounts to customers; or
(xvii) other agreements that require the payment by, or to, the Company or any of its Subsidiaries services student loans for after the date hereof of an amount in excess of $100,000 per annum.
(b) The Purchaser either has been supplied with, or has been given access to, a true and correct copy of all written contracts which are referred to on Schedule 3.09, together with all amendments, waivers or other changes thereto, and a true and correct written description of the material terms of any third party or by oral contracts which any third party services student loans for are referred to on Schedule 3.09.
(c) Neither the Company or nor any of its Subsidiaries;
(e) , or to the Company’s knowledge any open purchase order other party thereto, is in material default, breach or violation under any contract for capital expenditures by listed on the Schedule 3.09. All contracts set forth on Schedule 3.09 are valid and in full force and effect and constitute legal, valid and binding obligations of the Company or such Subsidiary, and to the Company’s knowledge any other party thereto, and are enforceable against the Company or such Subsidiary, and to the Company’s knowledge any other party thereto, in accordance with their respective terms, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. Neither the Company nor any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries has received written notice of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract breach, violation or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreementdefault, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of intent to terminate, not to renew or to challenge the Material Contracts, (iv) no event has occurred validity or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance enforceability of, any material obligations under contract listed on the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractSchedule 3.09.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Halyard Health, Inc.)
Contracts and Commitments. Except as (a) Schedule 5.18 hereto (with paragraph references corresponding to those set forth in the Company SEC Reports or on Section 3.10 below) contains a true and complete list of each of the Company Disclosure Schedulefollowing contracts (true and complete copies or, none if none, reasonably complete and accurate written descriptions of the Company which, together with all amendments and supplements thereto, have been delivered or made available to PMCT), to which STH or any of its the STH Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans Hotel is bound:
(i) all contracts providing for the Company management of the Hotels;
(ii) all franchise agreements (the "Franchise Agreements");
(iii) all material contracts providing for a commitment of employment or consultation services for a specified or unspecified term;
(iv) all contracts with any person containing any provision or covenant prohibiting or materially limiting the ability of STH or any of its the STH Subsidiaries to engage in any business activity or to compete with any person;
(v) all partnership, joint venture, stockholders' or other similar contracts with any person;
(vi) all notes, debentures, bonds and other evidence of indebtedness which are secured or collateralized by mortgages, deeds of trust or other security interests in any Hotel or any personal property of STH or any of the STH Subsidiaries;
(evii) all contracts relating to any open purchase order business combination;
(viii) all contracts between or contract for capital expenditures by the Company among STH or any of its the STH Subsidiaries, on the one hand, and any of their stockholders or affiliates, on the other hand;
(ix) all collective bargaining or similar labor contracts; and
(x) all other contracts that involve the annual payment or potential annual payment pursuant to the terms of such contract, by or to STH or any of the STH Subsidiaries of more than $25,000 or aggregate payments in excess of One Million Dollars $300,000 that will not ($1,000,000);
(fA) any agreement for the lease of real property by the Company be fully performed on or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part prior to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right Effective Time, (as defined in Section 3.19(c));
(kB) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid expire by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period their terms within 90 days following the date of this AgreementEffective Time, or (iiC) that is otherwise material to be cancelable by the Company or any Surviving Entity, without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and sale of its Subsidiaries. The Company has made available to Parent copies of all written assets, advance booking contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto banquet contracts.
(collectively, the “Material Contracts”). Except as b) Each contract required to be disclosed in Section 3.10 of the Company Disclosure on Schedule (i) each of the Material Contracts 5.18 is in full force and effecteffect and constitutes a legal, (ii) the Company or applicable Subsidiaryvalid and binding agreement, as the case may be, enforceable in accordance with its terms and, to the knowledge of the Companyexcept as disclosed on Schedule 5.18, all other parties to the Material Contracts haveneither STH, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, STH Subsidiaries nor, to the knowledge of the CompanySTH, any other party has waivedto such contract is in violation, breach or extended default under any such contract (or with notice or lapse of time or both would be in violation, breach or default under any such contract), the time for effect of which, individually or in the performance ofaggregate, any material obligations under the could reasonably be expect to result in an STH Material Contracts and Adverse Effect.
(vic) neither the execution of this Agreement nor the consummation The Franchise Agreements disclosed on Schedule 5.18 constitute all of the Offer franchise or similar agreements necessary to operate and manage the Merger shall (A) constitute a Hotels and neither STH nor any STH Subsidiary has received any notice or has any knowledge of an event of default under, (B) give rise to cancellation rights under, (C) require the giving of notice to or termination or proposed termination under any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractsuch Franchise Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Supertel Hospitality Inc), Merger Agreement (PMC Commercial Trust /Tx)
Contracts and Commitments. (a) Except as set forth in filed as an exhibit to Visionics' SEC Reports, neither Visionics, the Company SEC Reports Visionics Subsidiaries, or the entities listed on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries Schedule 3.1(b) is a party to or bound by any agreement, oral or written contract, obligation or commitment or other written instrument of any type in any of the following typecategories:
(ai) agreements or arrangements that contain severance pay, understandings with respect to tax arrangements, understandings with respect to expatriate benefits, or post-employment liabilities or obligations;
(ii) agreements or plans under which benefits will be increased or accelerated by the occurrence of any loan agreementof the transactions contemplated by this Agreement, origination agreementor under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) agreements, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement contracts or instrument commitments currently in force relating to the disposition or acquisition of assets other than in the ordinary course of business, or relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise;
(iiv) agreements, contracts or commitments for the borrowing purchase of money materials, supplies or obtaining extensions of credit by the Company equipment which provide for purchase prices substantially greater than those presently prevailing for such materials, supplies or equipment, or which are with sole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which Visionics or any of its the Visionics Subsidiaries is absolutely or contingently liable for (iiA) the loaning performance of money any other person, firm or granting extensions of credit corporation (other than student loansVisionics or the Visionics Subsidiaries), or (B) by the Company whole or any part of its the indebtedness or liabilities of any other person, firm or corporation (other than Visionics or the Visionics Subsidiaries);
(vi) powers of attorney authorizing the incurrence of a material obligation on the part of Visionics or the Visionics Subsidiaries;
(bvii) any agreement pursuant to agreements, contracts or commitments which the Company limit or restrict (A) where Visionics or any of its the Visionics Subsidiaries has purchasedmay conduct business, generated (B) the type or sold student loans in excess lines of Five Million Dollars business ($5,000,000current or future) in principal amount;
which they may engage, or (cC) any agreement relating to the extension acquisition of insurance assets or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended stock (the “Higher Education Act”), tangible or intangible) by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company Visionics or any of its the Visionics Subsidiaries;
(dviii) agreements, contracts or commitments containing any agreement by which the Company with respect to a change of control of Visionics or any of its the Visionics Subsidiaries;
(ix) agreements, contracts or commitments for the borrowing or lending of money, or the availability of credit (except credit extended by Visionics or any of the Visionics Subsidiaries services student loans to customers in the ordinary course of business and consistent with past practice);
(x) any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency.
(b) Neither Visionics nor any third of the Visionics Subsidiaries, nor to Visionics' knowledge any other party to a Visionics Contract (as defined below), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, (nor does there exist any condition under which, with the passage of time or the giving of notice or both, could reasonably be expected to cause such a breach, violation or default under), any material agreement, contract or commitment to which Visionics or any of the Visionics Subsidiaries is a party or by which any third party services student loans for the Company of them or any of its Subsidiaries;their properties or assets may be bound (any such agreement, contract or commitment, a "VISIONICS CONTRACT"), other than any breaches, violations or defaults which individually or in the aggregate would not have a Visionics Material Adverse Effect.
(ec) any open purchase order or contract for capital expenditures by the Company or any Each Visionics Contract is a valid, binding and enforceable obligation of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries Visionics and to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customersVisionics' knowledge, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleother party or parties thereto, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleaccordance with its terms, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) except where the Company or applicable Subsidiaryfailure to be valid, as the case may bebinding, and, enforceable and in full force and effect would not have a Visionics Material Adverse Effect and to the knowledge extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of the Company, all other parties creditors' rights governing or by general principles of equity.
(d) An accurate and complete copy of each Visionics Contract has been made available to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractIdentix.
Appears in 2 contracts
Samples: Merger Agreement (Visionics Corp), Merger Agreement (Identix Inc)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreementSchedule 3.7 hereto lists the following agreements, origination agreementwhether oral or written, indentureto which FGH is a party, credit facilitywhich are currently in effect, securitization agreement, mortgage, security agreement, pledge agreement, deed and which relate to the operation of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to FGH’s business: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; (iv) stock purchase, restricted stock or stock option plan or other equity compensation plan; (v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person; (vi) contract, agreement or understanding relating to the voting of FGH Common Stock or the election of directors of FGH, other than the Voting Agreement; (vii) agreement or indenture relating to the borrowing of money or obtaining extensions of credit by the Company to mortgaging, pledging or otherwise placing a lien on any of its Subsidiaries the assets of FGH; (viii) guaranty of any obligation for borrowed money or otherwise; (ix) lease or agreement under which FGH is lessee of, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $50,000; (x) lease or agreement under which FGH is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $50,000; (xi) contract which prohibits FGH from freely engaging in business anywhere in the world; (xii) contract or commitment for capital expenditures in excess of $50,000; (xiii) agreement for the sale of any capital asset; or (iixiv) other agreement which is either material to FGH’s business or was not entered into in the loaning ordinary course of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;business.
(b) any agreement pursuant To FGH’s Knowledge, FGH has performed all obligations required to which be performed by it in connection with the Company contracts, understandings, arrangements or any of its Subsidiaries has purchased, generated or sold student loans commitments required to be disclosed in excess of Five Million Dollars ($5,000,000) Schedule 3.7 hereto and is not in principal amount;
(c) any agreement relating to the extension of insurance or the providing receipt of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice claim of default under any contract, understanding, arrangement or commitment required to be disclosed under such caption; FGH has no present expectation or intention of the Material Contractsnot fully performing any material obligation pursuant to any contract, (iv) understanding, arrangement or commitment required to be disclosed under such caption; and FGH has no event has occurred Knowledge of any breach or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default anticipated breach by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party undercontract, (D) require the consent of any counterparty underunderstanding, arrangement or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractcommitment required to be disclosed under such caption.
Appears in 2 contracts
Samples: Merger Agreement (Financial Gravity Companies, Inc.), Merger Agreement (PACIFIC OIL Co)
Contracts and Commitments. (a) Except as set forth in the Company SEC Reports or on Section 3.10 Schedule 4.15(a) of the Company Parent Disclosure Schedule, none of Parent, the Company or Parent Subsidiaries nor any of its Subsidiaries the entities listed on Schedule 4.1(b) of the Parent Disclosure Schedule is a party to or bound by any agreement, contract, commitment or other written instrument of the following typefollowing:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any Contract that provides for post-employment or post-consulting liabilities or obligations, including severance pay;
(ii) any Contract under which payments or obligations will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of any of the transactions contemplated by this Agreement, including the Merger, or under which the value of the payments or obligations will be calculated on the basis of any of the transactions contemplated by this Agreement, including the Merger, whether pursuant to a change in control or otherwise;
(iii) any Contract currently in force relating to the disposition or acquisition of assets where the fair market value of such assets exceeds $100,000, in each case other than inventory sold in the ordinary course of business;
(iv) any Contract relating to an ownership interest in any corporation, partnership, joint venture or other business acquisition enterprise or divestiture agreement Person, excluding wholly-owned Parent Subsidiaries;
(v) any Contract for the purchase of materials, supplies, equipment or services, under which the aggregate payments made to one party or group of related parties during the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $100,000;
(vi) any Contract relating to the guarantee (whether absolute or contingent) by Parent or any letter of intent, term sheet the Parent Subsidiaries of (A) the performance of any other Person (other than Parent or draft agreement relating to a wholly-owned Parent Subsidiary) or (B) the whole or any such pending transactionpart of the indebtedness or liabilities of any other Person (other than Parent or a wholly-owned Parent Subsidiary);
(jvii) any contract Contract relating in whole or in part to the licensing to indemnification by Parent of its officers, directors, managers or from agents;
(viii) any material Contract of indemnification or guaranty;
(ix) any power of attorney authorizing the Company incurrence of an obligation on the part of Parent or the Parent Subsidiaries;
(x) any Contract which limits or restricts (A) where Parent or any of its the Parent Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which Parent or any material Intellectual Property Right of the Parent Subsidiaries may engage or (as defined C) any acquisition of assets or stock (tangible or intangible) by Parent or any of the Parent Subsidiaries;
(xi) any Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $100,000;
(xii) any Contract for the borrowing or lending of money, or the availability of credit (except credit extended by Parent or any of the Parent Subsidiaries to customers in Section 3.19(c)the ordinary course of business and consistent with past practice);
(kxiii) any Contract relating to any hedging, option (other than options granted to service providers in connection with the performance of services), derivative or other similar transaction and any foreign exchange position or contract or agreement with any Governmental Authorityfor the exchange of currency;
(lxiv) any material sales, marketing or advertising agreementcollective bargaining agreements;
(mxv) any Contract relating to the employment contract;
(n) any student loan guaranty or surety agency agreementof individuals who serve as officers of Parent; or
(oxvi) any Contract that would otherwise be required to be filed as an exhibit to a periodic report under the Exchange Act, as provided by Item 601 of Regulation S-K promulgated under the Exchange Act. Each Contract of the type described in this Section 4.15(a) and in existence as of the date hereof is referred to herein as a “Parent Contract”.
(b) An accurate and complete copy of each Parent Contract (including all amendments thereto) has been made available to the Company.
(c) Neither Parent nor any of the Parent Subsidiaries, nor, to the knowledge of Parent, any other contractparty to a Parent Contract, agreement is in material breach, violation or commitment default under, or has received written notice that it has breached, violated or defaulted under (i) nor, to the knowledge of Parent, does there exist any condition under which, with respect to which the aggregate amount that could passage of time or the giving of notice or both, would reasonably be expected to be paid by the Company cause such a breach, violation or default under), any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise Parent Contract material to the Company or operation of Parent’s business.
(d) Each Parent Contract is a valid, binding and enforceable obligation of Parent and any applicable Parent Subsidiary and, to the knowledge of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 Parent, of the Company Disclosure Scheduleother party or parties thereto, summaries of all oral contracts in accordance with its terms and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the in each case may be, and, except to the knowledge extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by general equitable principles or by principles of the Company, all other parties to the Material Contracts have, good faith and fair dealing (regardless of whether enforcement is sought in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company equity or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractat law).
Appears in 2 contracts
Samples: Merger Agreement (Synageva Biopharma Corp.), Merger Agreement (Trimeris Inc)
Contracts and Commitments. (a) Except as set forth in on the Contracts Schedule, neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to any: (i) collective bargaining agreement or other contract with any labor union, works council, or other labor organization; (ii) bonus or annual incentive compensation, change-in-control, retention, severance, termination, pension, profit sharing, retirement or other form of deferred compensation plan, stock purchase, stock option, equity or equity based plan or similar plan other than as set forth in Section 6.16 or the Disclosure Schedules relating thereto; (iii) contract for the employment or engagement of any officer, individual employee or other person on a full-time, part-time, or consulting basis providing for base compensation in excess of one hundred and fifty thousand dollars ($150,000) per annum or providing for severance or termination entitlements; (iv) agreement or indenture relating to the borrowing of money or obtaining extensions to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of credit the assets of the Company or any of its Subsidiaries; (v) contract or group of related contracts involving the creation, incurrence, assumption or guaranty of any obligation for borrowed money or other guaranty under which it has imposed a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (vi) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds two hundred fifty thousand dollars ($250,000); (vii) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds two hundred fifty thousand dollars ($250,000); (viii) other than purchase orders entered into in the ordinary course of business, contract or group of related contracts with any supplier required to be listed on the Customers and Suppliers Schedule; (ix) other than purchase orders entered into in the ordinary course of business, contract or group of related contracts with any customer required to be listed on the Customers and Suppliers Schedule; (x) contract which prohibits the Company or any of its Subsidiaries from freely engaging in business anywhere in the world; (xi) contracts relating to the licensing of Intellectual Property by the Company or any of its Subsidiaries to a third-party or by a third-party to the Company or any of its Subsidiaries, in each case involving consideration in excess of two hundred fifty thousand dollars ($250,000) per annum; (xii) all other agreements affecting the Company’s or any of its Subsidiaries’ ability to use or disclose any material Intellectual Property, in each case, other than (A) licenses for commercially available, off-the-shelf software used by the Company or any of its Subsidiaries or (iiB) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures agreements entered into by the Company or any of its Subsidiaries with customers in excess the ordinary course of One Million Dollars business; ($1,000,000);
xiii) contracts relating to the acquisition or disposition (fwhether by merger, sale of stock, sale of assets or otherwise) of any agreement for Person or material line of business entered into since September 30, 2013, or the lease future acquisition or disposition (whether by merger, sale of real property by the Company stock, sale of assets or otherwise) of any Person or material line of business; (xiv) contract concerning a partnership or a joint venture; (xv) contract under which it has advanced or loaned any amount to any of its Subsidiaries;
directors, officers, and employees outside the ordinary course of business; (gxvi) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;Body that provides for or involves injunctive relief; (xvii) contract containing a provision naming a counter party as the exclusive supplier or distributor of products or services; and (xviii) agent, broker, sales representative, sales or distribution agreement.
(lb) any material sales, marketing Each of the contracts listed or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected required to be paid by listed on the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Contracts Schedule (i) each of the Material Contracts is in full force and effect, (ii) and is the legal, valid and binding obligation of the Company or applicable Subsidiary, as the case may beSubsidiary of the Company which is party thereto, and, to the knowledge of the CompanySellers, all of the other parties thereto enforceable against each of them in accordance with its terms. Except as set forth on the Contracts Schedule, neither the Company nor any Subsidiary of the Company (as applicable) is in default under any contract listed on the Contracts Schedule, and, to the Material knowledge of the Sellers, the other party to each of the contracts listed on the Contracts have, in all material respects, performed their obligations and are Schedule is not in default under thereunder. Except as set forth on the Material ContractsContracts Schedule, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred that with the lapse of time or condition exists that, with the giving of notice, the passage of time, notice or both, both would constitute a material breach or default by on the part of the Company, or any Subsidiary of the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the CompanySellers, any other party under any of contract listed on the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to Contracts Schedule. To the knowledge of the CompanySellers, (i) no party to any other contract listed on the Contracts Schedule has exercised any termination rights with respect thereto, and (ii) no party has waived, or extended the time for the performance of, given written notice of any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice dispute with respect to any third party undercontract listed on the Contracts Schedule. The Company has made available to the Purchaser true and correct copies of each contract listed on the Contracts Schedule, (D) require the consent of any counterparty undertogether with all amendments, modifications or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractsupplements thereto.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Huntsman International LLC)
Contracts and Commitments. (a) Except as set forth in to the extent the following representations relate to Indebtedness which is paid off or terminated at the Closing the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is not a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to any: (i) agreement relating to any completed business acquisition or divestiture by the Company within the last two years; (ii) collective bargaining agreement or contract with any labor union; (iii) written (or to the Company’s Knowledge, material oral) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 5.13 or the Disclosure Schedules relating thereto; (iv) stock purchase, stock option or similar plan; (v) written contract for the employment of any officer, employee or other person on a full time or consulting basis; (vi) agreement or indenture relating to the borrowing of money or obtaining extensions to mortgaging, pledging or otherwise placing a Lien on any portion of credit the Company’s assets other than Permitted Liens; (vii) guaranty of any obligation for borrowed money or other material guaranty; (viii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $250,000; (ix) contract that grants or confers any easement or mineral rights or other material encumbrances or liabilities upon, or otherwise with respect to, any real property owned or leased by it; (x) lease or agreement under which it is lessor of, or permits any third party to hold or operate any real property; (xi) lease or agreement under which it is lessor of, or permits any third party to hold or operate any personal property, for which the annual rental exceeds $250,000; (xii) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a selling price in excess of $250,000 (other than propane supply agreements delivered in the Ordinary Course); (xiii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $250,000 (other than sale orders received in the ordinary course of business); (xiv) contract which prohibits the Company from freely engaging in business anywhere in the United States; (xv) a partnership, joint venture or other similar contract; (xvi) a collective bargaining or other collective labor contract; (xvii) a written (or to the Company’s Knowledge, material oral) contract with any of its officers, directors, managers, partners, shareholders or members, or any of its Subsidiaries their respective affiliates; or (iixviii) a contract not made in the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;Ordinary Course.
(b) any agreement pursuant to which the Company or any of its Subsidiaries The Buyer either has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreementbeen supplied with, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies been given access to, a true and correct copy of all written contracts and commitments listed in Section 3.10 of which are referred to on the Company Disclosure ScheduleSchedules, summaries of together with all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleamendments, and all modifications and supplements thereto (collectively, the “Material Contracts”)waivers or other changes thereto. Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts Each such contract is in full force and effect, is valid, binding and enforceable in accordance with its terms, and embodies the complete understanding between the parties thereto with respect to the subject matter thereof.
(iic) Neither the Company nor any other Person is in default in any material respect under any contract listed on the Disclosure Schedules. The Company has not received any written (or applicable Subsidiary, as the case may be, and, to the knowledge Company’s Knowledge, material oral) notice that any Person intends to cancel, modify or terminate any contract listed on the Disclosure Schedules, other than in the Ordinary Course.
(d) Section 5.09 of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, Disclosure Schedule identifies with an asterisk (iii“*”) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require each contract set forth therein that requires the consent of or notice to the other party thereto to avoid any counterparty underbreach, default or (E) otherwise adversely affect any violation of such contract in connection with the rights of the Company or any Subsidiary under, any Material Contracttransactions contemplated hereby.
Appears in 2 contracts
Samples: Equity Purchase Agreement, Equity Purchase Agreement (Inergy L P)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreementSchedule 6.12 contains a complete and accurate list of all contracts, origination agreementagreements, indenturecommitments, credit facilityinstruments and obligations (whether written or oral, securitization agreementcontingent or otherwise) of Rainwire of or concerning the following matters which involve (i) payments by or to Rainwire in excess of $5,000, mortgage(ii) performance by or for Rainwire of services or obligations the value of which is in excess of $5,000, security agreement, pledge agreement, deed or (iii) performance by or for Rainwire of trust, bond, note, guaranty, surety, trust agreement and/or other agreement services or instrument relating to obligations for greater than 90 days (the "Rainwire Agreements"):
(i) the borrowing lease (as lessee or lessor) or license (as licensee or licensor) of money any real or obtaining extensions of credit by the Company personal property (tangible or any of its Subsidiaries or intangible);
(ii) the loaning employment or engagement of money any officer, director, employee, consultant or granting extensions agent;
(iii) any relationship with any Rainwire Shareholder, or any person or entity affiliated with or related to any Rainwire Shareholder or any officer, director, employee, consultant or agent of credit Rainwire;
(iv) any arrangement limiting the freedom of Rainwire to compete in any manner in any line of business;
(v) any arrangement that could reasonably be anticipated to have a Rainwire Material Adverse Effect;
(vi) any arrangement not in the ordinary course of business;
(vii) any power of attorney, whether limited or general, granted by or to Rainwire;
(viii) any agreements relating to the making of any loan or advance by Rainwire;
(ix) any agreements providing for the indemnification by Rainwire of any Person;
(x) any agreements with any Authority except those entered into in the ordinary course of business which are not material to Rainwire;
(xi) any broker, distributor, dealer or representative or agency agreements pursuant to which Rainwire made payments in excess of $25,000 during the preceding fiscal year;
(xii) any agreements (including settlement agreements) currently in effect pursuant to which Rainwire licenses the right to use any Intellectual Property to any Person or from any Person (other than student loans) by the Company or any of its Subsidiarieslicense agreements related to off-the-shelf software products);
(bxiii) any agreement confidentiality agreements entered into by Rainwire during the period commencing three years prior to the date hereof pursuant to which the Company or any of its Subsidiaries confidential information has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating been provided to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any a third party or by which any Rainwire was restricted from providing information to third party services student loans for parties, other than confidentiality agreements entered into in the Company or any normal course of its Subsidiariesbusiness;
(exiv) any open purchase order voting trust or contract for capital expenditures by the Company or similar agreements relating to any of its Subsidiaries the ownership interests in excess Rainwire to which any of One Million Dollars ($1,000,000)the Rainwire Shareholders or Rainwire is a party;
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(hxv) any joint venture, partnership, royalty partnership or similar documents or agreements; and
(xvi) any agreement involving that materially limits or purports to materially limit the sharing ability of profits and/or expenses between Rainwire to own, operate, sell, transfer, pledge or otherwise dispose of any assets.
(b) Rainwire has delivered or will deliver to Oasis true and complete copies of all Rainwire Agreements. Except as indicated on Schedule 6.12, the Company Rainwire Agreements are valid and enforceable in accordance with their terms (except to the extent limited by equitable principles or bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally) and there is not under any of its Subsidiaries and any third party;
such contracts (i) any business acquisition existing or divestiture agreement (claimed default by Rainwire or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to event which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage notice or lapse of time, or both, would constitute a default by Rainwire or (ii) to the Company knowledge of Rainwire, any existing or applicable Subsidiaryclaimed default by any other party or event which with notice or lapse of time, or both, would constitute a default by any such party. Except as indicated on Schedule 6.12, the case may becontinuation validity and enforceability of the Rainwire Agreements will not be affected by the Share Exchange and the Share Exchange will not result in a breach of, or default under, or require the consent of any other party to any of the Rainwire Agreements. Except as set forth on Schedule 6.12, there is no actual or, to the knowledge of Rainwire, threatened termination, cancellation or limitation of any Rainwire Agreements that would have a Rainwire Material Adverse Effect. To the Companyknowledge of Rainwire, there is no pending or threatened bankruptcy, insolvency or similar proceeding with respect to any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractRainwire Agreements.
Appears in 2 contracts
Samples: Plan and Agreement to Exchange Stock (Rainwire Partners Inc /De/), Share Exchange Agreement (Rainwire Partners Inc /De/)
Contracts and Commitments. (a) Except as set forth in on the attached Contracts Schedule, neither the Company SEC Reports nor any of its Subsidiaries is party to any:
(i) collective bargaining agreement or other Contract with any labor union, other than as set forth on Section 3.10 the Employment and Labor Matters Schedule;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth on the Employee Benefits Schedule;
(iii) stock purchase, stock option or similar plan;
(iv) employment or consulting Contract providing for compensation in excess of $100,000 per annum, or any severance Contract;
(v) Contract relating to the borrowing by or lending from the Company or any Subsidiary from or to any third party or to the mortgaging of, pledging of or otherwise placing a Lien on any portion of the Company’s or any Subsidiary’s assets;
(vi) Contract providing for the guaranty by the Company Disclosure Scheduleor any Subsidiary of any liability of any Person (other than the Company or any Subsidiary);
(vii) Contract obligating the Company or any Subsidiary, none or providing the Company or any Subsidiary with the option or right, to purchase or otherwise acquire any equity interest in or assets of any other Person;
(viii) Contract pursuant to which either (i) the Company or any Subsidiary is obligated to indemnify or hold harmless any Person (other than the Company or any Subsidiary), or (ii) any Person (other than the Company or any Subsidiary) is obligated to indemnify or hold harmless the Company or any Subsidiary, in each case, other than in accordance with the terms of any standard warranty and/or terms and conditions of the Company or any of its Subsidiaries or of any other Person;
(ix) lease or agreement under which it is a lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $100,000;
(x) lease or agreement under which it is lessor of or permits any third party to hold or bound by operate any agreementproperty, contractreal or personal, commitment or other written instrument of for which the following type:annual rental exceeds $100,000;
(axi) any loan agreementContract or group of related Contracts with the same party for the purchase of products or services, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed under which the undelivered balance of trust, bond, note, guaranty, surety, trust agreement and/or such products and services has a selling price in excess of $250,000 (other agreement than purchase orders entered into in the ordinary course of business);
(xii) Contract or instrument relating group of related Contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $250,000 (other than purchase orders entered into in the ordinary course of business);
(xiii) Contract pursuant to which (iA) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries Subsidiary grants to any Person the option, license or (ii) the loaning of money or granting extensions of credit (other than student loans) right to use any Intellectual Property rights owned by the Company or any of its Subsidiaries;
, other than non-exclusive licenses granted in the ordinary course with the sale, distribution or marketing of the Company’s or its Subsidiaries’ products, or (bB) any agreement pursuant to which the Company or any Subsidiary obtains a license, option or other right from any Person to use any Intellectual Property (other than off-the-shelf software with a replacement cost and/or annual license fee of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars (less than $5,000,000) in principal amount100,000);
(cxiv) Contract containing covenants that in any agreement relating way purport to restrict the extension business activity of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess any material respect or limit the freedom of One Million Dollars ($1,000,000)any of them to engage in any line of business or to compete with any Person;
(fxv) any partnership agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or joint venture agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third partyother Person;
(ixvi) any business acquisition other Contract that involves the expenditure, payment or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from receipt by the Company or any of and its Subsidiaries of any material Intellectual Property Right more than $250,000 (as defined other than purchase orders received in Section 3.19(cthe ordinary course of business));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(oxvii) any amendment or supplement to or other contractmodification of, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or enter into, any of its Subsidiaries would exceed One Million Dollars the foregoing.
($1,000,000b) in any twelve (12)-month period following the date of this Agreement, Seller has delivered or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies Buyer a true and correct copy of all written contracts and commitments listed in Section 3.10 of Contracts which are referred to on the Company Disclosure Contracts Schedule, summaries of together with all oral contracts and commitments listed in Section 3.10 of amendments, waivers or other changes thereto.
(c) Each contract on the Company Disclosure ScheduleContracts Schedule (each, and all modifications and supplements thereto (a “Material Contract” and, collectively, the “Material Contracts”). Except as disclosed in Section 3.10 ) is a valid and binding agreement of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable its Subsidiary, as the case may be, andenforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(i) Neither the Company nor any Subsidiary is in material default under any Material Contract, (ii) to the knowledge Company’s Knowledge, none of the Company, all other parties to any of the Material Contracts have, is in all material respects, performed their obligations and are not in default under the Material Contractsthereunder, (iii) to the Company or applicable SubsidiaryCompany’s Knowledge, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred that with notice or condition exists that, with the giving lapse of notice, the passage of time, or both, time would constitute a material breach or default by the Company under, or applicable Subsidiarypermit termination, as the case may be, or, to the knowledge of the Companymodification or acceleration of, any other party under any of the Material ContractsContract, and (viv) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge nor any Subsidiary has received written notice of the Company, any default under any Material Contract that any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party underMaterial Contract intends to cancel, (D) require the consent of any counterparty under, terminate or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material fail to renew such Contract.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Compass Diversified Holdings)
Contracts and Commitments. Except as set forth in the Company SEC Reports (a) Schedule 5.14(a) attached hereto contains a complete and accurate list of all contracts, agreements, commitments, instruments and obligations (whether written or on Section 3.10 oral, proposed, contingent or otherwise) of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of Entities concerning the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto matters (collectively, the “Material ContractsCompany Agreements”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule ):
(i) each the lease, as lessee or lessor, or license, as licensee or licensor, or purchase or sale of the Material Contracts is in full force and effect, any material personal property (tangible or intangible);
(ii) the Company employment or applicable Subsidiaryengagement of any officer, as the case may bedirector or employee, andor any consultant or agent, other than those terminable at will without any severance obligation, and any covenant not to the knowledge of the Companycompete or separation agreement with any current or former officer, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, director or employee;
(iii) the Company engagement of any medical director and any covenant not to compete or applicable Subsidiaryseparation agreement with any current or former medical director;
(iv) the provision for any payments or other benefits, directly or indirectly, as a result of a change in control of any of the case may beCompany Entities, including, without limitation, the transaction contemplated by this Agreement;
(v) the incurrence of indebtedness or making of any loans or the granting of any Lien on any Company Entity’s assets;
(vi) any arrangement between any Company Entity and any Affiliate of the Company Entities or any immediate family member of any such Affiliate;
(vii) any arrangement limiting the freedom of any Company Entity to compete, solicit customers or solicit employees in any manner in any geographic area or line of business, or requiring any Company Entity to share profits;
(viii) any arrangement not in the ordinary course of business under which any Company Entity has agreed to assume Liabilities of another party or indemnify or hold harmless another party;
(ix) any charitable commitment in excess of Fifty Thousand Dollars ($50,000) in any calendar year;
(x) any arrangement that would be reasonably likely to have a Company Material Adverse Effect;
(xi) any power of attorney, whether limited or general, granted by or to any Company Entity;
(xii) any joint venture agreement, acute services agreement or facility management agreement;
(xiii) any arrangement with customers, patients, managed care organizations, third party payors, pharmacy benefit managers, or suppliers (including pharmaceutical and drug suppliers) that requires financial payments in the aggregate in excess of Fifty Thousand Dollars ($50,000) or performance over a period of more than ninety (90) calendar days; and
(xiv) any other arrangement not given in the ordinary course of business that requires performance for a period of more than ninety (90) calendar days or received any notice that requires aggregate payments in excess of default Fifty Thousand Dollars ($50,000).
(b) The Company has delivered or made available to Parent or its representatives true and complete copies of all of the written Company Agreements. Except as indicated in Schedule 5.14(b) attached hereto, the Company Agreements are valid and effective in accordance with their terms, and there is not under any of the Material Contracts, such Company Agreements (ivi) no any existing or claimed default by any Company Entity or event has occurred or condition exists thatwhich, with the giving of notice, the passage notice or lapse of time, or both, would constitute a default by the any Company Entity thereunder, or applicable Subsidiary, as the case may be, or, (ii) to the knowledge Knowledge of the Company, any existing or claimed default by any other party under thereto or event which with notice or lapse of time, or both, would constitute a material default by any such party. Except as indicated in Schedule 5.14(b) attached hereto, the continuation, validity and effectiveness of the Company Agreements will not be affected by the Merger, and the Merger will not result in a breach of or default by the Company Entities under, or require the Consent of any other party to, any of the Material ContractsCompany Agreements. There is no actual or written threatened termination, (v) neither the Company cancellation or applicable Subsidiary, as the case may be, nor, to the knowledge limitation of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractAgreements.
Appears in 2 contracts
Samples: Merger Agreement (Allion Healthcare Inc), Merger Agreement (Allion Healthcare Inc)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 (a) As of the Company Disclosure Scheduledate of this Agreement, none of except as filed as an exhibit to the Company or any of SEQUUS SEC Reports, neither SEQUUS nor its Subsidiaries is a party to or bound by any agreement, oral or written contract, obligation or commitment or other written instrument of any type in any of the following typecategories:
(ai) employment agreements, consulting agreements, agreements or arrangements that contain severance pay, employee or consultant indemnification agreements, agreements or understandings with respect to tax arrangements, agreements or understandings with respect to expatriate benefits, or post- employment liabilities or obligations;
(ii) agreements or plans under which benefits will be increased or accelerated by the occurrence of any loan agreementof the transactions contemplated by this Agreement, origination agreementor under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) agreements, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement contracts or instrument commitments currently in force relating to the disposition or acquisition of (i) material assets other than in the borrowing ordinary course of money business, or obtaining extensions (ii) relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise;
(iv) material agreements, contracts or commitments for the purchase of credit by materials, supplies or equipment which provide for purchase prices substantially greater than those prevailing as of the Company date of this Agreement for such materials, supplies or equipment, or which are with sole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which SEQUUS or any of its Subsidiaries is absolutely or contingently liable for (iiA) the loaning performance of money any other person, firm or granting extensions of credit corporation (other than student loansSEQUUS or its Subsidiaries), or (B) the whole or any part of the indebtedness or liabilities of any other person, firm or corporation (other than SEQUUS or its Subsidiaries);
(vi) powers of attorney authorizing the incurrence of a material obligation on the part of SEQUUS or its Subsidiaries;
(vii) agreements, contracts or commitments which limit or restrict (A) the geographic territories where SEQUUS or any of its Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which they may engage, or (C) any acquisition of assets (tangible or intangible) by SEQUUS or any of its Subsidiaries outside of the Company ordinary course of business;
(viii) agreements, contracts or commitments containing any agreement with respect to a change of control of SEQUUS or any of its Subsidiaries;
(bix) any agreement pursuant to which agreements, contracts or commitments for the Company borrowing or any lending of its Subsidiaries has purchasedmoney, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing availability of any guarantee, pursuant to the Higher Education Act of 1965, as amended credit (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan except credit extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company SEQUUS or any of its Subsidiaries to restrictions on customers in the competitive conduct ordinary course of their businesses business and consistent with past practice);
(x) any hedging, option, derivative or prohibits other similar transaction and any foreign exchange position or contract for the exchange of currency;
(xi) any joint marketing or joint development agreement, or any license or distribution agreement relating to any SEQUUS product not cancelable by SEQUUS upon 90 days notice; or
(xii) any agreement not otherwise restricts disclosed in section 3.14 or 3.17 of the Company SEQUUS Disclosure Statement expressly obligating SEQUUS to indemnify any other Person, including but not limited to any employee or consultant of SEQUUS or any of its Subsidiaries, against any charge of infringement, misappropriation or misuse of any intellectual property, other than indemnification provisions contained in purchase orders or customer agreements arising in the ordinary course of business.
(b) Neither SEQUUS nor any of its Subsidiaries, nor to SEQUUS' knowledge any other party to a SEQUUS Contract (as defined below), is in breach, violation or default under, or has received notice that it has breached, violated or defaulted under (nor does there exist any condition under which, with the passage of time or the giving of notice or both, could reasonably be expected to cause such a breach, violation or default under), any material agreement, contract or commitment to which SEQUUS or any of its Subsidiaries from soliciting customers, vendors is a party or employees by which any of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company them or any of its Subsidiaries and their properties or assets is bound (any third party;such agreement, contract or commitment, a "SEQUUS Contract"), other than any breaches, violations or defaults which individually or in the aggregate would not have a SEQUUS Material Adverse Effect.
(ic) any business acquisition or divestiture agreement (or any letter Each SEQUUS Contract is a valid, binding and enforceable obligation of intentSEQUUS and, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material salesSEQUUS' knowledge, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleother party or parties thereto, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleaccordance with its terms, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) except where the Company or applicable Subsidiaryfailure to be valid, as the case may bebinding, and, enforceable and in full force and effect would not have a SEQUUS Material Adverse Effect and to the knowledge extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of creditors' rights generally or by general principles of equity or by competition laws of the Company, all other parties European Union.
(d) An accurate and complete copy of each SEQUUS Contract has been made available to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractALZA.
Appears in 2 contracts
Samples: Merger Agreement (Alza Corp), Merger Agreement (Sequus Pharmaceuticals Inc)
Contracts and Commitments. (a) Except as set forth in the Company SEC Reports or on Section 3.10 Schedule 3.08(a), as of the Company Disclosure ScheduleEffective Date, none the Assumed Contracts and the DCS Contracts do not include any written or oral (each Contract set forth on Schedule 3.08(a) is referred to herein as a “Material Contract”):
(i) Contract by and between Seller and any Affiliate of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:Seller;
(ii) Contract (a) for the employment of any loan agreementPerson on a full-time or part-time basis providing for compensation, origination agreementincluding bonus compensation, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed in excess of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument $100,000 per annum; (b) relating to any independent contractor or other service provider that provides for compensation in excess of $100,000 per annum or (ic) a contract related to the borrowing employment of money any person that requires the Buyer to make any severance payment, retention payment or obtaining extensions bonus or other payment contingent on the occurrence of credit by the Company a transaction;
(iii) Contract or indenture relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any of its Subsidiaries the Purchased Assets;
(iv) guaranty of any obligation, Indebtedness or Liability of another person;
(iiv) lease or agreement under which Seller is lessee of, or holds or operates any Tangible Personal Property, for which the loaning annual rental exceeds $100,000;
(vi) lease or agreement under which Seller is lessor of money or granting extensions of credit permits any third party to hold or operate any property (other than student loansReal Property) by for which the Company annual rental exceeds $100,000;
(vii) coal sale agreement, or purchase order or commitment to sell or offer to sell coal;
(viii) contract or group of related contracts with the same party for the sale or purchase of products (other than coal) or services, under which the undelivered balance of the products and services has a selling price in excess of $500,000 (other than purchase orders entered into in the ordinary course of business which can be cancelled immediately without penalty to Buyer);
(ix) Contract prohibiting or restricting the ability of the Business to conduct its respective business, to compete in any line of business or to engage in any business or operate in any geographical area;
(x) Contract that will require Buyer (after Closing) to purchase its total requirements of any product or service from a third party or that contains “take or pay” provisions;
(xi) Contract related to the use of any Intellectual Property for or in the Business which requires annual payments in excess of $100,000 and all Contracts permitting other Persons to use or register any Intellectual Property that is included in the Purchased Assets or for which a transfer fee of more than $25,000 will be incurred;
(xii) Contract with respect to a joint venture, joint development or partnership relationship;
(xiii) Contract that involves any exchange traded, over-the-counter or other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of its Subsidiariesany kind or nature whatsoever, whether tangible or intangible, including commodities, emissions allowances, renewable energy credits, currencies, interest rates, foreign currency and other indices, in each case other than agreements for the purchase and sale of coal;
(xiv) Contract for acquisitions of membership interests, capital stock, any equity interest or assets of another Person (whether by merger, membership transfer, or stock or asset purchase) or for any options to acquire the same;
(xv) Contract for transportation services;
(xvi) Contract to pay an “overriding royalty”;
(xvii) Contract for contract mining; or
(xviii) Contract to process, store, load, transport or otherwise handle coal produced by any other Person.
(b) any agreement pursuant Buyer has been given access to which the Company a true and correct copy of all Assumed Contracts and DCS Contracts, including all amendments, waivers or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;other changes thereto.
(c) any agreement relating With respect to the extension of insurance or the providing of any guaranteeeach Assumed Contract, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts Assumed Contract is in full force and effecteffect and is a valid and binding obligation of Seller and to Seller’s Knowledge, the other party or parties to such Contract and enforceable against Seller and to Seller’s Knowledge, the other parties to such Contract and (ii) Seller is not in material default under such Assumed Contract, and to Seller’s Knowledge, the Company or applicable Subsidiaryother parties to the Assumed Contracts are not in material default thereunder. With respect to each DCS Contract, as the case may be(i) such DCS Contract is in full force and effect and is a valid and binding obligation of DCS and is enforceable against DCS, and, to Seller’s Knowledge, such DCS Contract is a valid and binding obligation of, and is enforceable against, the knowledge of other party or parties to such DCS Contract, and (ii) DCS is not in material default under such DCS Contract, and to Seller’s Knowledge, the Company, all other parties to the Material DCS Contracts have, in all material respects, performed their obligations and are not in material default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractthereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Peabody Energy Corp)
Contracts and Commitments. (i) Except as disclosed in the VitalStream Securities and Exchange Commission Reports, as expressly contemplated by this Agreement or as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure ScheduleSchedule 4(l) attached hereto, none of the Company or neither VitalStream nor any of its Subsidiaries VitalStream Subsidiary is a party to or bound by any agreement, contract, commitment written or other written instrument of the following typeoral:
(aA) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any loan agreementother employee benefit plan or arrangement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other or any collective bargaining agreement or instrument relating to (i) the borrowing of money any other contract with any labor union, or obtaining extensions of credit by the Company severance agreements, programs, policies or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiariesarrangements;
(bB) contract for the employment of any agreement pursuant to which the Company officer, individual employee or any of its Subsidiaries has purchasedother Person on a full-time, generated part-time, consulting or sold student loans other basis providing annual compensation in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement 75,000 or contract relating to the extension of insurance loans to officers, directors or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended Affiliates (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000unless terminable at will without severance obligations);
(fC) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental AuthorityEntity entered into outside the Ordinary Course of Business;
(lD) contract under which VitalStream or any material sales, marketing VitalStream Subsidiary has advanced or advertising agreementloaned any other Person amounts in the aggregate exceeding $10,000;
(mE) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any employment contractassets of VitalStream or any VitalStream Subsidiary;
(nF) Guarantee of any student loan guaranty Liability of any Person;
(G) settlement, conciliation or surety agency agreementsimilar agreement under which such party has any future obligations or Liability;
(H) lease or agreement under which VitalStream or any VitalStream Subsidiary is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $25,000;
(I) lease or agreement under which VitalStream or any VitalStream Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by VitalStream or any VitalStream Subsidiary;
(J) contract or group of related contracts with the same party or group of Affiliated parties the performance of which involves the payment by VitalStream or any VitalStream Subsidiary of consideration in excess of $25,000; annually;
(K) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) entered into outside the Ordinary Course of Business;
(L) warranty agreement with respect to its services rendered or its products sold or leased;
(M) agreement under which it has granted any Person any registration rights (including demand and piggyback registration rights, any rights of first refusal or vetoes on the sale of the Acquired Assets);
(N) agreement relating to any Investment;
(O) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(oP) any other contractagreement which is material to the operation of its Hosting Business or business prospects or involves a consideration in excess of $25,000; annually.
(ii) All of the contracts, agreement or commitment agreements and instruments set forth in Schedule 4(l) attached hereto (the "VitalStream Material Contracts") are valid, binding and enforceable in accordance with their respective terms, except as such enforceability may be limited by (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company applicable insolvency, bankruptcy, reorganization, moratorium or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreementother similar Laws affecting creditors' rights generally, or and (ii) that is otherwise material to the Company applicable equitable principles (whether considered in a proceeding at law or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”equity). Except as disclosed in Section 3.10 of set forth on Schedule 4(l)(ii) attached hereto, VitalStream and each VitalStream Subsidiary has performed all material obligations required to be performed by it under the Company Disclosure Schedule (i) each of the VitalStream Material Contracts and is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the or in breach of nor in receipt of any claim of default or breach under any VitalStream Material Contracts; no event has occurred which with the passage of time or the giving of notice or both would result in a default, (iii) breach or event of noncompliance by VitalStream or any of the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default VitalStream Subsidiaries under any of the VitalStream Material Contracts; neither VitalStream nor any of the VitalStream Subsidiaries has any present expectation or intention of not fully performing all such obligations; VitalStream does not have any Knowledge of any breach or anticipated breach of any material obligation to be performed by the other parties to any of the VitalStream Material Contracts.
(iii) Other than VitalStream Material Contracts included as exhibits to the VitalStream Securities and Exchange Commission Reports, Hosting has been supplied with a true and correct copy of each of the written VitalStream Material Contracts, (iv) no event has occurred together with all amendments, waivers or condition exists thatother changes thereto, with the giving and an accurate description of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge each of the Company, any other party under any of the oral VitalStream Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Vitalstream Holdings Inc), Asset Purchase Agreement (Brekka Richard)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument (a) Schedule 2.12(a) lists each of the following typecontracts or agreements (if any) of each of the Acquired Companies:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating management contracts with respect to the extension of insurance Properties, and management contracts with respect to golf course properties or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), facilities owned by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(hii) any joint venture, partnership, royalty all material documents evidencing or similar agreement involving creating indebtedness for borrowed money of the sharing Acquired Companies with a remaining principal balance in excess of profits and/or expenses between $75,000 individually or $250,000 in the Company aggregate or any secured by the Properties and outstanding on the date of its Subsidiaries and any third party;
this Agreement which will not be retired or repaid on or prior to the Closing Date (i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction"Existing Debt");
(jiii) partnership agreements and joint venture agreements to which any contract relating Acquired Company is a party (and having as another party any person who is not an Acquired Company) which requires a payment, or delivery of assets or services;
(iv) all Leases of Leased Properties and other real property leased by the Companies;
(v) except as set forth on Schedule 2.5, employment, severance or consulting agreements with any director, officer or Acquired Companies Employee (as hereinafter defined) requiring an annual payment of cash compensation in whole excess of $100,000 individually;
(vi) agreements granting to any third party a first-refusal, first-offer or in part other right to purchase or acquire any of the licensing to or from the Company Properties or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c))the Acquired Shares;
(kvii) agreements materially limiting or restricting the ability of any Acquired Company to enter into or engage in any geographic area or line of business; and
(viii) agreements that will not be terminated on or before the Closing between (1) any contract Acquired Company and any Seller or agreement with any Governmental Authority;
its Affiliates (l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreementas hereinafter defined), or (ii2) any Seller or its Affiliates (except for any Acquired Company) and a third party that is otherwise material commit any one or more of the Acquired Companies to pay, in the Company or any aggregate, more than $150,000.
(b) True and complete copies of its Subsidiaries. The Company has the contracts and agreements disclosed pursuant to Section 2.12(a) hereof have been made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”)Buyer. Except as disclosed in Section 3.10 of the Company Disclosure on Schedule 2.12(b) or as would not have a Material Adverse Effect (i) each of contract and agreement disclosed pursuant to Section 2.12(a) hereof is valid and binding on the Material Contracts Acquired Company party thereto and, to the Sellers' Knowledge, on the other party or other parties thereto, and is in full force and effecteffect in accordance with its respective terms, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge upon consummation of the Companytransactions contemplated by this Agreement, all each such contract and agreement shall continue in full force and effect in accordance with its respective terms without penalty, acceleration of payment or other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contractsadverse consequence, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any none of the Material ContractsAcquired Companies is in breach of, (iv) or default under, any such contract or agreement, and no event has occurred or condition exists that, with but for the giving of notice, the notice or passage of time, would result in such a breach or both, would constitute a default by the Acquired Company or applicable Subsidiaryparty thereto, as the case may be, or, and (iv) to the knowledge of the CompanySellers' Knowledge, any no other party under to any of the Material Contractssuch contract or agreement is in breach thereof or default thereunder, (v) neither the Company or applicable Subsidiaryand no event exists that, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time but for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice or passage or time, would result in such a breach or default by the other party thereto. Certain other contracts and agreements concerning the Properties and the Acquired Companies have been provided to any third party under, the Buyer in the Review Room (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractas hereinafter defined).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Meditrust Corp), Stock Purchase Agreement (Club Corp International)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth in Schedule 7.11(a), neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following typeany:
(ai) Contract for the employment of any loan agreementofficer, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or individual employee or other agreement Person or instrument Contract relating to loans to officers, directors or Affiliates;
(iii) Contract under which the borrowing Company or any of money its Subsidiaries has advanced, loaned or obtaining extensions of extended credit to any other Person amounts that in the aggregate exceed $10,000;
(iii) Contract that provides for, or relates to, the incurrence by the Company or any of its Subsidiaries of debt for borrowed money, other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company or any of its Subsidiaries;
(iiiv) Contract that provides for a guarantee of any obligation of any Person or provides that the loaning Company or any of money its Subsidiaries must assume or granting extensions become liable for any Indebtedness of credit any Person;
(v) Contract under which the Company or any of its Subsidiaries is lessee of or holds or operates any property, real or personal, owned by any other than student loansPerson;
(vi) Contract under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company or any of its Subsidiaries;
(bvii) assignment, license, indemnification or agreement with respect to any agreement pursuant to which the Company or intangible property (including any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amountIntellectual Property Rights);
(cviii) any agreement relating to the extension of insurance sales, distribution or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiariesfranchise Contract;
(dix) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures Contract that is not terminable by the Company or any of its Subsidiaries upon less than 30 days notice without penalty and that involves consideration in excess of One Million Dollars ($1,000,000)25,000 in any twelve-month period;
(fx) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement Contract that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) freely engaging in any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating competing anywhere in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreementworld; or
(oxi) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) Contract that is otherwise material to the Company Company’s or any of its Subsidiaries. The Company has made available to Parent copies ’ operations or business prospects as currently contemplated.
(b) Each of all written contracts and commitments the Contracts listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto Schedule 7.11(a) (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 ) constitutes a valid and binding obligation of the Company Disclosure Schedule (i) each or, if applicable, one of its Subsidiaries and, to the Knowledge of the Material Contracts Company, of each other party thereto and is in full force and effecteffect and (except for those Material Contracts that by their terms will expire prior to the applicable Closing Date or are otherwise terminated prior to the applicable Closing Date in accordance with the provisions hereof) will continue in full force and effect after the Closings, (ii) in each case without breaching the terms thereof or resulting in the forfeiture or impairment of any rights thereunder and without the consent, approval or act of, or the making of any filing with, any other party. The Company and, if applicable, its Subsidiaries, have fulfilled and performed their material obligations under each Material Contract, and neither the Company nor any of its Subsidiaries is in, or applicable Subsidiaryalleged to be in, as the case may bedefault under or breach of, andnor is there or is there alleged to be any basis for termination of, any Material Contract, and to the knowledge Knowledge of the Company, all Company no other parties party to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material ContractsContracts has breached or defaulted thereunder, (iv) and no event has occurred and no condition or condition state of facts exists that, with the passage of time or the giving of notice, the passage of time, notice or both, would constitute such a default or breach by the Company or applicable SubsidiaryCompany, as the case may be, any of its Subsidiaries or, to the knowledge Knowledge of the Company, by any such other party. Neither the Company nor any of its Subsidiaries has any present expectation or intention of not fully performing all its obligations under each Material Contract, and the Company does not have Knowledge of any anticipated breach by any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
(c) The Company has made available to the Investors a complete and correct copy of each of the written Material Contracts and an accurate description of the material terms of each of the oral Material Contracts.
Appears in 2 contracts
Samples: Series a Preferred Stock Purchase Agreement (Xstream Systems Inc), Series a Preferred Stock Purchase Agreement (Xstream Systems Inc)
Contracts and Commitments. Except as contemplated by ------------ ------------------------- this Agreement or as set forth in on the Company SEC Reports or on Section 3.10 of the Company Disclosure Scheduleattached Schedule 5.14, none of the Company or neither CII nor ------------- any of its Subsidiaries Subsidiary is a party to or bound by any agreement, contract, commitment written or other written instrument of the following typeoral:
(a) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any loan agreementother employee benefit plan or arrangement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other or any collective bargaining agreement or instrument relating to (i) the borrowing of money any other contract with any labor union, or obtaining extensions of credit by the Company severance agreements, programs, policies or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiariesarrangements;
(b) contract for the employment of any agreement pursuant to which the Company officer, individual employee or any of its Subsidiaries has purchasedother Person on a full-time, generated part-time, consulting or sold student loans other basis providing annual compensation in excess of Five Million Dollars ($5,000,000) in principal amount100,000 or contract relating to loans to officers, directors or affiliates;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company contract under which CII or any of its SubsidiariesSubsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $50,000;
(d) agreement or indenture relating to borrowed money or other indebtedness or the mortgaging, pledging or otherwise placing a lien on any agreement by which the Company material asset or any material group of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any assets of CII and its Subsidiaries;
(e) guarantee of any open purchase order obligation (other than by CII of a Subsidiary's debts or contract for capital expenditures a guarantee by the Company a Subsidiary of CII's debts or any of its Subsidiaries in excess of One Million Dollars ($1,000,000another Subsidiary's debts);
(f) lease or agreement under which CII or any agreement Subsidiary is lessee of or holds or operates any property, real or personal, owned by any other party, except for the any lease of real or personal property by under which the Company or any of its Subsidiariesaggregate annual rental payments do not exceed $50,000;
(g) any contract lease or agreement that subjects the Company under which CII or any Subsidiary is lessor of its Subsidiaries or permits any third party to restrictions on the competitive conduct of their businesses hold or prohibits operate any property, real or otherwise restricts the Company personal, owned or controlled by CII or any of its Subsidiaries from soliciting customers, vendors or employees of third partiesSubsidiary;
(h) any joint venturecontract or group of related contracts, partnershipexcluding all purchase orders, royalty with the same party or similar agreement involving group of affiliated parties the sharing performance of profits and/or expenses between the Company or any which involves consideration in excess of its Subsidiaries and any third party$50,000;
(i) any business acquisition assignment, license, indemnification or divestiture agreement (or any letter of intent, term sheet or draft agreement relating with respect to any such pending transactionintangible property (including, without limitation, any material intellectual property), excluding purchase orders;
(j) any contract relating in whole warranty agreement with respect to its services rendered or in part to the licensing to its products sold or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c))leased;
(k) any contract sales, distribution or agreement with any Governmental Authorityfranchise agreement;
(l) contract, agreement or other arrangement with any material salesofficer, marketing director, stockholder, employee or advertising agreementaffiliate, or any affiliate of any officer, director, stockholder or employee;
(m) contract or agreement prohibiting it from freely engaging in any employment contractbusiness or competing anywhere in the world;
(n) agreement with a term of more than six months which is not terminable by CII or any student loan guaranty or surety agency agreementSubsidiary upon less than 30 days notice without penalty; or
(o) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $50,000 annually. All of the contracts, agreements and instruments set forth on the Schedule 5.14 are valid, binding and enforceable in accordance with their ------------- respective terms in all material respects. CII and each Subsidiary have materially performed all obligations required to be performed by them and are not in material default under or in material breach of nor in receipt of any claim of material default or breach under any contract, agreement or commitment (i) with respect instrument to which the aggregate amount that could reasonably be expected to be paid by the Company CII or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that Subsidiary is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) subject; no event has occurred or condition exists that, which with the giving of notice, the passage of time, time or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party underor both would result in a material default, (D) require the consent breach or event of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company noncompliance by CII or any Subsidiary underunder any contract, agreement or instrument to which CII or any Material ContractSubsidiary is subject; neither CII nor any Subsidiary has Knowledge of any breach or anticipated breach by the other parties to any contract, agreement, instrument or commitment to which it is a party; and neither CII nor any Subsidiary is a party to any materially adverse contract or commitment. The New Investors have been given access to a true and correct copy of each of the written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to on the Schedule 5.14, together with all amendments, waivers or other ------------- changes thereto.
Appears in 2 contracts
Samples: Recapitalization Agreement (Kilovac International Inc), Recapitalization Agreement (Kilovac International Inc)
Contracts and Commitments. (a) Except (x) as set forth on the Contracts Schedule and (y) for agreements entered into by the Company or its Subsidiaries after the date hereof in accordance with Section 7.01, neither the Company nor its Subsidiaries is party to any:
(i) collective bargaining agreement or other agreement with any labor organization;
(ii) written pension, employee profit sharing, retirement or other form of deferred compensation plan, other than as described in the Company SEC Reports Employee Benefits Schedule;
(iii) equity purchase, option or similar plan;
(iv) contract for the employment of any officer, individual employee or other Person on Section 3.10 a full-time or consulting basis providing for base salary compensation in excess of $150,000 per annum;
(v) agreement, instrument or indenture relating to the borrowing of money or incurrence or assumption of funded Indebtedness or to mortgaging, pledging or otherwise placing a Lien, except for Permitted Liens, on any portion of the assets of the Company Disclosure Scheduleand its Subsidiaries;
(vi) guaranty of any Indebtedness or other material guaranty;
(vii) lease or agreement under which it is lessee of, none or holds or operates any personal property owned by any other party, for which the annual rental exceeds $500,000;
(viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $500,000;
(ix) contract for the purchase of products or services which provided for payments by the Company or its Subsidiaries in excess of $1,500,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet;
(x) agreements relating to any completed material business acquisition by the Company or its Subsidiaries within the last two years or pursuant to which the Company or its Subsidiaries is subject to continuing obligations;
(xi) license or royalty agreement relating to the use of any third party Intellectual Property (other than off the shelf software) for which the royalty payments exceeded $500,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet;
(xii) license or royalty agreement relating to the use by a third party of Intellectual Property owned by the Company (other than nonexclusive licenses granted in the ordinary course of business);
(xiii) any Affiliate Agreement;
(xiv) any contract granting to any Person a right of first refusal or option to purchase or acquire any assets of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument valued at an amount in excess of the following type:$250,000; or
(axv) contract (other than confidentiality and non-solicitation agreements entered into in the ordinary course) which places any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by material limitation on the Company or any of its Subsidiaries or (ii) from freely engaging in business anywhere in the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;world.
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries True and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent correct copies of all written contracts and commitments which are listed in Section 3.10 on the Contracts Schedule have been made available to the Purchaser.
(c) As of the Company Disclosure Scheduledate hereof, summaries of all oral contracts each contract listed on the Contracts Schedule is valid, binding, enforceable and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge and none of the Company, all other parties its Subsidiaries, or, to the Material Contracts haveCompany’s Knowledge, in all material respects, performed their obligations and are not any other Person party to such contract is in default in any material respect under any such contract, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the Material Contractsavailability of specific performance and other equitable remedies. During the past two (2) years, (iii) neither the Company or applicable Subsidiary, as the case may be, nor any of its Subsidiaries has not given or received any written notice of any material default under any contract listed on the Contracts Schedule. As of the Material Contractsdate hereof, (iv) no neither the Company nor any of its Subsidiaries has received any written notice of non-renewal or termination of any contract listed on the Contracts Schedule. As of the date hereof, there does not exist under any contract listed on the Contracts Schedule any material violation, breach or event has occurred of default, or alleged violation, breach or event of default, or event or condition exists that, with the giving after notice or lapse of notice, the passage of time, time or both, would constitute a violation, breach or event of default by thereunder on the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights part of the Company or any the applicable Subsidiary under, any Material Contractof the Company.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Contracts and Commitments. (a) Except as set forth in the Company SEC Reports or on Section 3.10 4.10(a) of the Seller Disclosure Letter, no Company Disclosure Schedule, none of the Company or any of its Subsidiaries Entity is a party to or bound by any agreement, contract, commitment or other written instrument of the following typeany:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or CBA;
(ii) Contract, agreement or indenture relating to any Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any portion of their properties or assets (A) pursuant to which, any Company Entity has incurred or may incur Indebtedness exceeding the loaning Threshold Amount for which any Company Entity will be liable following the Closing, or (B) relating to any Liens on assets of money or granting extensions of credit (other than student loans) by the any Company or any of its SubsidiariesEntity;
(biii) guaranty of any Indebtedness or other material guaranty;
(iv) Contract, lease or agreement under which it is lessee of, or holds, uses or operates any real or personal property or assets owned by any other party, for which the annual rental or payment commitment exceeds the Threshold Amount;
(v) Contracts or group of related Contracts with any Top Customer or any Top Supplier;
(vi) Contracts or agreements relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Company Entity since January 1, 2022 or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the assets of any Person by any Company Entity or, pursuant to which the any Company Entity has any continuing “earn out” or other contingent payment obligations or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amountsurviving material indemnification obligations;
(cvii) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty limited liability company or similar agreement involving with any third party (including any agreement providing for joint development or marketing);
(A) Contract pursuant to which any Company Entity licenses, or is otherwise permitted by a third party to practice, use or register, or receive any other rights under, any material Intellectual Property Rights (other than “shrink wrap licenses,” “click through” licenses and licenses to off-the-shelf Software on standard commercial terms with fees of less than the sharing Threshold Amount per year), (B) Contract pursuant to which a third party licenses, or is permitted to use or register, or granted any other rights under, any Company-Owned IP Rights (other than non-exclusive licenses granted by a Company Entity to customers in the Ordinary Course of profits and/or expenses between Business), or (C) Contract affecting any Company Entity’s ability to use, enforce, or disclose any material Intellectual Property Rights, such as covenant-not-to-sue, coexistence, consent-to-use, concurrent use, or settlement agreements;
(ix) distribution, sales representative, marketing or similar Contract or agreement that required any Company Entity to make commission payments under such agreement in excess of the Threshold Amount during the twelve (12)-month period ended on the Balance Sheet Date;
(x) Contract or agreement pursuant to which any Company Entity would be required to make, in the aggregate, capital expenditures in excess of the Threshold Amount;
(xi) Contract or agreement that (a) materially limits the ability of any Company Entity to compete in any line of business or with any product or with any Person or in any geographic area or market or during any period of time or (b) contains covenants that restrict the business activity of any Company Entity in any material respect (other than non-disclosure agreements entered into in the Ordinary Course of Business);
(xii) Contract or agreement that contains “most-favored-nation” obligations or restrictions, or rights of first refusal or offer or any similar requirement or right, in each case binding any Company Entity in favor of its Subsidiaries and any third party;
(ixiii) Contract or agreement where any business acquisition or divestiture agreement (Company Entity is subject to a requirement of exclusive dealing or any letter of intent, term sheet or draft agreement relating to any such pending transaction)similar exclusivity obligation;
(jxiv) any contract relating in whole interest, currency or in part to the licensing to hedging derivatives or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c))similar Contracts;
(kxv) any contract Contract or agreement with that limits the incurrence of Indebtedness or the declaration or payment of any Governmental Authoritydividends or other distributions;
(lxvi) Contract or agreement that involves payment to or by any material sales, marketing or advertising agreementCompany Entity in excess of the Threshold Amount annually;
(mxvii) any employment contractContract or agreement whose termination (other than those termination by passage of time) would have a Company Material Adverse Effect;
(nxviii) management agreement or other Contract for the employment or engagement of any student loan guaranty Service Provider on a full time, part time, consulting or surety agency agreementother basis that: (A) provides for annual compensation (whether cash and/or otherwise) which may exceed $150,000, (B) provides for the payment of any cash or other compensation or benefits upon or in connection with the consummation of the transactions contemplated by this Agreement, (C) provides for the payment of any cash or other compensation or benefits related to a retention, severance, transaction-based or change in control bonus or other similar Contract with any Service Provider or (D) restricts any Company Entity’s ability to terminate the employment or engagement of any Service Provider at any time for any lawful reason or for no reason without penalty or Liability; or
(oxix) Contract or agreement that relates to the settlement of any other contract, agreement Action (A) with any Governmental Authority since the Look-back Date; (B) that materially restricts or commitment imposes obligations upon any Company Entity; or (C) requires payment by a Company Entity of more than the Threshold Amount after the date hereof.
(b) Each Contract described in clauses (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any through (xix) of its Subsidiaries would exceed One Million Dollars ($1,000,000Section 3.11(a) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiariesa “Material Contract”. The Company has made available provided to Parent Purchaser true and correct copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the , together with all supplements, amendments, waivers or other changes thereto.
(c) Neither any Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, andEntity nor, to the knowledge Seller’s Knowledge, any other party thereto is in material breach of, violation of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no Contract. No event has occurred that with notice or condition exists that, with the giving lapse of notice, the passage of time, time or both, both would constitute a material breach of, violation of or default under, any Material Contract by the any Company or applicable Subsidiary, as the case may beEntity, or, to the knowledge Seller’s Knowledge, any counterparty. All Material Contracts are valid and in full force and effect and constitute legal, valid and binding obligations of the Company, any other party under any of the Material Contracts, (v) neither the applicable Company or applicable Subsidiary, as the case may be, norEntity and, to the knowledge Seller’s Knowledge, each counterparty, and are enforceable against the applicable Company Entity and, to the Seller’s Knowledge, the counterparty thereto in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the Company, any availability of specific performance and other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractequitable remedies.
Appears in 2 contracts
Samples: Business Combination Agreement (Goal Acquisitions Corp.), Business Combination Agreement (Goal Acquisitions Corp.)
Contracts and Commitments. (a) Except as set forth expressly contemplated by this Agreement or as disclosed in the Company Issuer SEC Reports filed prior to the date of this Agreement or on Section 3.10 of the Company Disclosure attached Contracts Schedule or the attached Employee Benefits Schedule or the attached Real Property Schedule, none of neither the Company or Issuer nor any of its Subsidiaries Subsidiary is a party to or bound by any agreement, contract, commitment written or other written instrument of the following typeoral:
(ai) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any loan agreementother employee benefit plan or arrangement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other or any collective bargaining agreement or instrument relating to (i) the borrowing of money any other contract with any labor union, or obtaining extensions of credit by the Company severance agreements, programs, policies or any of its Subsidiaries or arrangements;
(ii) contract for the loaning employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis providing annual compensation in excess of $100,000 or contract relating to loans to officers, directors or Affiliates;
(iii) contract under which the Issuer or Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $250,000;
(iv) agreement or indenture relating to borrowed money or granting extensions other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of credit (other than student loans) by assets of the Company or any of Issuer and/or its Subsidiaries;
(bv) guarantee of any obligation in excess of $100,000 (other than by the Issuer of a wholly-owned Subsidiary's debts or a guarantee by a Subsidiary of the Issuer's debts or of another wholly-owned Subsidiary's debts) other than in connection with the Credit Agreement;
(vi) lease or agreement under which the Issuer or any Subsidiary is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $50,000;
(vii) lease or agreement under which the Issuer or any Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Issuer or any Subsidiary, respectively;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in excess of $250,000;
(ix) assignment, license, indemnification or agreement with respect to any material intangible property (including, without limitation, any Intellectual Property Rights);
(x) express warranty agreement with respect to its services rendered or its products sold or leased;
(xi) agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xii) sales, distribution or franchise agreement the performance of which involves consideration in excess of $250,000;
(xiii) agreement, the performance of which involves consideration in excess of $250,000, with a term of more than six months which is not terminable by the Issuer or any Subsidiary upon less than 30 days notice without penalty;
(xiv) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world;
(xv) any joint venture agreement or other agreement pursuant to which the Company Issuer or any of its Subsidiaries Subsidiary has purchasedmade, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to governing the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company Issuer's or any of its Subsidiaries;
(d) Subsidiary's investment in any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreementother person; or
(oxvi) any other contractagreement which is material to its operations and business prospects or involves a consideration in excess of $250,000 annually.
(b) All of the contracts, agreement agreements and instruments set forth or commitment (i) with respect to which the aggregate amount that could reasonably be expected required to be paid by set forth on the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) Contracts Schedule are valid, binding and enforceable in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”)accordance with their respective terms. Except as disclosed in Section 3.10 of set forth on the Company Disclosure Contracts Schedule, the Litigation Schedule, the Liabilities Schedule (i) or the Real Property Schedule, the Issuer and each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in Subsidiary has performed all material respectsobligations required to be performed by it under the contracts, performed their obligations agreements and instruments listed on the Contracts Schedule or required to be set forth and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received in breach of nor in receipt of any notice claim of default or breach under any of material contract, agreement or instrument to which the Material Contracts, (iv) Issuer or any Subsidiary is subject and no event has occurred or condition exists that, which with the giving of notice, the passage of time, time or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party underor both would result in a default, (D) require breach or event of noncompliance by the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company Issuer or any Subsidiary underunder any material contract, agreement or instrument to which the Issuer or any Subsidiary is subject; the Issuer has no present intention of not fully performing all such obligations; the Issuer has no knowledge of any breach or anticipated breach by the other parties to any material contract, agreement, instrument or commitment to which it is a party; and neither the Issuer nor any Subsidiary is a party to any contract or commitment or group of contracts or commitments the performance of which could have a Material ContractAdverse Effect.
(c) Upon request, the Issuer will make available to the Purchasers a true and correct copy of each of the written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are listed on, referred to or required to be listed on or referred to on the Contracts Schedule or the Employee Benefits Schedule, together with all amendments, waivers or other changes thereto.
Appears in 2 contracts
Samples: Securities Purchase Agreement (United Shipping & Technology Inc), Securities Purchase Agreement (United Shipping & Technology Inc)
Contracts and Commitments. Except (i) Section 7.1(q)(i) of the Stratex Disclosure Letter sets forth as set forth of the date of this Agreement a true, correct and complete list (excluding, in the Company SEC Reports or on Section 3.10 case of any Contract with a customer, the name of such customer) of the Company Disclosure Schedulefollowing Contracts (including every written amendment, none modification or supplement thereto that is binding on Stratex or any of the Company its Subsidiaries) to which Stratex or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for of their assets are bound:
(A) any Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Company or any of its SubsidiariesSEC);
(eB) any open purchase order Contract (other than a Contract described in one of the other provisions of this Section 7.1(q)(i) without regard to any percentage or contract for capital numerical limitation contained therein) that involved annual expenditures during Stratex’s fiscal year ended March 31, 2006 by the Company Stratex or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) 2,000,000 and that is not otherwise cancelable by Stratex or such Subsidiary without any agreement financial or other penalty on 90 days’ or less notice, excluding any purchase orders for the lease of real property by the Company goods and services from Stratex or any of its SubsidiariesSubsidiaries with respect to which no obligations of any party remain outstanding;
(gC) any contract Contract (other than a Contract described in one of the other provisions of this Section 7.1(q)(i) without regard to any percentage or agreement numerical limitation contained therein) that subjects involved annual revenue during Stratex’s fiscal year ended March 31, 2006 to Stratex and its Subsidiaries in excess of $2,000,000, excluding any purchase orders for goods and services from Stratex or any of its Subsidiaries with respect to which no obligations of any party remain outstanding;
(D) any Contract that contains any (I) “most favored nation” or similar provision, (II) exclusivity provision or (III) other material restriction on the Company ability of Stratex or any of its Subsidiaries to restrictions on the competitive conduct of their businesses compete or prohibits to provide any products or otherwise restricts the Company services generally or in any market segment or any geographic area;
(E) any Contract or arrangement under which Stratex or any of its Subsidiaries from soliciting customershas (I) incurred any Indebtedness that is currently outstanding or (II) given any guarantee in respect of Indebtedness, vendors or employees in each case having an aggregate principal amount in excess of third parties$2,000,000;
(hF) any partnership joint venture, partnership, royalty venture or other similar agreement involving or arrangement relating to the sharing formation, creation, operation, management or control of profits and/or expenses between the Company any partnership or joint venture material to Stratex or any of its Subsidiaries and or in which Stratex or any third partysuch Subsidiaries owns more than a 15% voting or economic interest, or any interest valued at more than $2,000,000 without regard to percentage voting or economic interest;
(iG) any business acquisition or divestiture agreement (Contract to which Stratex or any letter of intent, term sheet its Subsidiaries is a party containing a standstill or draft similar agreement relating pursuant to which the party has agreed not to acquire assets or securities of the other party or any such pending transaction)of its Affiliates;
(jH) any contract relating in whole or in part to the licensing to or from the Company Contract providing for indemnification by Stratex or any of its Subsidiaries of any Person, except for any such Contract that is (I) not material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company Stratex or any of its Subsidiaries would exceed One Million Dollars and (II) entered into in the ordinary course of business;
(I) any Contract that contains a put, call or similar right pursuant to which Stratex or any of its Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or assets that have a fair market value or purchase price of more than $1,000,0002,000,000;
(J) any other Contract or group of related Contracts that, if terminated or subject to a default by any party thereto, would, individually or in the aggregate, reasonably be expected to result in a Stratex Material Adverse Effect; and
(K) any twelve Stratex IP Contracts.
(12)-month period following the date ii) For purposes of this Agreement, each Contract described in the foregoing clauses (A) through (K) of Section 7.1(q)(i) is, individually, a “Stratex Material Contract” and such Contracts are collectively the “Stratex Material Contracts”.
(iii) Stratex has delivered or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent true, correct and complete copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the such Stratex Material Contracts is in full force and effect, to Hxxxxx or its representative.
(iiiv) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the The Stratex Material Contracts haveare, in all material respects, performed valid, binding and enforceable in accordance with their obligations respective terms with respect to Stratex and are not in default under its Subsidiaries and, to the Knowledge of Stratex, with respect to each other party to any of such Stratex Material Contracts, (iii) except as such validity, binding nature and enforceability may be limited by the Company Bankruptcy and Equity Exception, and there are no existing material defaults or applicable Subsidiary, as the case may be, has not given breaches by Stratex or received any notice of default its Subsidiaries under any of the Stratex Material Contracts, Contract (iv) no event has occurred or condition exists thatevents or conditions which, with notice or lapse of time or both, would constitute such a material default or breach) and, to the giving Knowledge of noticeStratex, the passage there are no material defaults or breaches (or events or conditions which, with notice or lapse of time, time or both, would constitute a material default or breach) by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent Stratex Material Contract. Stratex has no Knowledge of any counterparty underpending or threatened bankruptcy or similar proceeding with respect to any party to any Stratex Material Contract which, individually or (E) otherwise adversely affect any of in the rights of the Company or any Subsidiary underaggregate, any would reasonably be expected to result in a Stratex Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Harris Corp /De/), Merger Agreement (Stratex Networks Inc)
Contracts and Commitments. (a) Except as set forth on the attached Contracts Schedule, as of the date hereof, neither the Company nor any of its Subsidiaries is party to any written:
(i) agreement relating to any completed material business acquisition of a third Person by the Company or such Subsidiary within the last five (5) years;
(ii) collective bargaining agreement or contract with any labor union, other than as described in Section 4.18 hereof or the Employment and Labor Matters Schedule;
(iii) material written bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.12 hereof or the Employee Benefits Schedule;
(iv) stock purchase, stock option or similar plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis providing for fixed compensation in excess of (a) $100,000 per annum in the Company SEC Reports or on Section 3.10 United States and (b) $200,000 per annum outside of the United States;
(vi) employee leasing agreement that provide for payments in excess of (a) $100,000 per annum in the U.S. and (b) $200,000 per annum outside of the United States;
(vii) any agreement with any independent contractor, sales representative or distributor pursuant to which such Person purchased goods in excess of $500,000 from the Company Disclosure Scheduleor any of its Subsidiaries from April 1, none 2009 through December 31, 2009;
(viii) all material stand-alone agreements with respect to the licensing of Intellectual Property by the Company or any of its Subsidiaries to a third party or by a third party to the Company or any of its Subsidiaries (including all agreements with respect to the licensing of any Intellectual Property used in a material respect by the Company or any of its Subsidiaries, but excluding license agreements for commercially available off-the-shelf software);
(ix) agreement, instrument or arrangement with, or relating to the provision of goods or services to, any Governmental Body where the amount involved currently outstanding is $100,000 or more, other than any agreement, instrument or arrangement entered into in the ordinary course of business;
(x) agreement, indenture or instrument relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien with respect to Indebtedness or other material Lien on the Company’s or any of its Subsidiaries’ assets;
(xi) guaranty of any obligation for borrowed money;
(xii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $100,000;
(xiii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $100,000;
(xiv) “take or pay” contracts;
(xv) any contract under which the Company or any of its Subsidiaries is a party obligated to or bound by any agreement, contract, commitment pay an earnout or other written instrument similar contingent purchase price amount to a third party in connection with an acquisition or sale of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant assets as to which the Company or any of its Subsidiaries or their respective assets are bound;
(xvi) any contract that establishes a partnership or joint venture;
(xvii) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has purchased, generated or sold student loans a selling price in excess of Five Million Dollars ($5,000,000) in principal amount250,000;
(cxviii) any agreement relating to contract or group of related contracts with the extension same party for the sale of insurance products or services under which the providing undelivered balance of any guarantee, pursuant to the Higher Education Act such products or services has a sales price in excess of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries$500,000;
(dxix) any non-competition agreement by or exclusivity agreement (other than distributor or agency agreements) which materially prohibits the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for from freely engaging in business anywhere in the Company or any of its Subsidiariesworld;
(exx) agreement with any open purchase order transportation company involving annual payments in excess of $250,000;
(xxi) stand-alone agreement for the transportation or contract for capital expenditures disposal of Hazardous Substances; or
(xxii) Bonding Arrangements or stand-alone indemnification agreements (other than guarantees by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000the obligations of another Subsidiary of the Company);.
(fb) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing Buyer has been given access to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies Buyer at its offices a true and correct copy of all written contracts and commitments listed in Section 3.10 which are referred to on the Contracts Schedule, together with all material amendments, waivers or other changes thereto.
(c) As of the Company Disclosure Scheduledate hereof, summaries of all oral contracts and commitments listed in Section 3.10 of neither the Company Disclosure Schedulenor any of its Subsidiaries is in material breach or default under any contract listed on the Contracts Schedule or any lease described on the Leased Real Property Schedule (each, and all modifications and supplements thereto (a “Material Contract” and, collectively, the “Material Contracts”). Except as disclosed in Section 3.10 To the Company’s Knowledge, no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination by the Company Disclosure Schedule (i) other party, under a Material Contract. To the Company’s Knowledge, the other party to each of the Material Contracts is not in material breach or default thereunder. Each Material Contract, with respect to the Company and its Subsidiaries, is valid, binding, enforceable (except as such enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies) and in full force and effect (assuming such Material Contract is valid and binding obligation of the other parties thereto). Each Material Contract, with respect to the other parties to such Material Contract, to the Company’s Knowledge, is valid, binding, enforceable (except as such enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies) and in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of . To the Company’s Knowledge, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under to any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party Contract has waived, or extended the time for the performance of, repudiated any material obligations under the Material Contracts and (vi) neither the execution provision of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Thermon Holding Corp.)
Contracts and Commitments. (a) Except as set forth disclosed in the Company SEC Reports or on Section 3.10 of filed since December 31, 2004 and prior to the date hereof, neither the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to to, is bound or bound by affected by, or receives any benefits under, any agreement, contractcontract or legally binding understanding, commitment whether oral or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to written: (i) the borrowing of money providing for (A) aggregate noncontingent payments by or obtaining extensions of credit by to the Company or any Subsidiary of the Company in excess of $250,000 or (B) potential payments by or to the Company or any Subsidiary of the Company reasonably expected to exceed $1,000,000; (ii) limiting the freedom of the Company to engage in any line of business or sell, supply or distribute any service or product, or to compete with any entity or to conduct business in any geography, or to hire any individual or group of individuals; (iii) any agreement that after the Effective Time would have the effect of limiting in any respect the freedom of Parent or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loansthe Company and its Subsidiaries) to engage in any line of business or sell, supply or distribute any service or product, or to compete with any entity or to conduct business in any geography, or to hire any individual or group of individuals; (iv) providing for any joint venture, partnership or similar arrangement (other than research collaborations and license agreements); (v) involving any exchange-traded or over-the-counter swap, forward, future, option, cap, floor or collar financial contract, or any other interest-rate or foreign currency protection contract; (vi) relating to the borrowing of money, the guarantee of any such obligation (other than trade payables and instruments relating to transactions entered into in the ordinary course of business), or the sale, securitization or servicing of loans or loan portfolios; (vii) with any directors, officers or stockholders that cannot be cancelled by the Company (or the applicable Subsidiary of the Company) within 30 days' notice without liability, penalty or premium; (viii) containing severance or termination pay Liabilities related to termination of employment; (ix) related to product supply, manufacturing, distribution or development, or the license of Company Intellectual Property to or from the Company or its Subsidiaries (except for standard biological material transfer agreements and nonexclusive software licenses granted to end-user customers in the ordinary course of business, the form of which has been provided to Parent, or standard licenses purchased by the Company or any of its Subsidiaries;
(b) any agreement pursuant Subsidiaries for off-the-shelf software and except for licenses in which either the aggregate noncontingent payments to which or by the Company or any of its Subsidiaries has purchased, generated or sold student loans are not in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance 250,000 or the providing of any guarantee, pursuant potential payment to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars (is not expected to exceed $1,000,000);
; (fx) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects obligating the Company or any of its Subsidiaries to restrictions provide indemnification; (xi) providing for any standstill restriction on the competitive conduct Company; (xii) providing for the disposition of their businesses or prohibits an asset through licensing or otherwise restricts involving consideration in excess of $100,000 (other than in the ordinary course of business consistent with prior practice); or (xiii) otherwise required to be filed as an exhibit to an Annual Report on Form 10-K, as provided by Rule 601 of Regulation S-K promulgated under the Exchange Act. Each contract of the type described in this Section 3.16, whether or not set forth in the Company or any of its Subsidiaries from soliciting customersDisclosure Letter, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the is referred to herein as a "Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. Material Contract." The Company has heretofore made available to Parent copies a complete and correct copy of all written contracts each Company Material Contract, including any amendments or modifications thereto.
(b) Each Company Material Contract is valid and commitments listed in Section 3.10 binding on the Company or its Subsidiary party thereto and, to the Knowledge of the Company Disclosure ScheduleCompany, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleeach other party thereto, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) and the Company or applicable Subsidiary, as and each of the case may be, Subsidiaries of the Company have performed in all material respects all obligations required to be performed by them under each Company Material Contract and, to the knowledge Knowledge of the Company, all each other parties party to the each Company Material Contracts have, Contract has performed in all material respectsrespects all obligations required to be performed by it under such Company Material Contract, performed their obligations and are except, in each case, as would not in reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary of the Company knows of, or has received notice of, any violation or default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, that with the giving of notice, the passage of time, time or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice would cause such a violation of or default under) any Company Material Contract or any other agreement or contract to any third which it is a party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect by which it or any of the rights of the its properties or assets is bound, except for violations or defaults that would not reasonably be expected to have a Company or any Subsidiary under, any Material ContractAdverse Effect.
Appears in 2 contracts
Samples: Merger Agreement (Smithkline Beecham Corp), Merger Agreement (Corixa Corp)
Contracts and Commitments. Except as set (a) Sellers have made available to Purchaser true and complete copies of all Assumed Contracts. Schedule 5.14 sets forth in a true and complete list of all the Company SEC Reports or on Section 3.10 Contracts (other than Intellectual Property Licenses and Real Property Leases) of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries following types to which either Seller is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating and that are Related to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;Business:
(i) any business acquisition Contract that either (A) requires a payment by any party in excess of, or divestiture agreement (a series of payments that in the aggregate exceed, $100,000 or provides for the delivery of goods or performance of services, or any letter combination thereof, having a value in excess of intent$100,000, (B) has a term sheet of, or draft agreement relating to requires the performance of any such pending transaction)obligations by any party over a period in excess of, 12 months or (C) is not cancelable by a Seller on notice of not longer than 90 days;
(jii) any contract relating Shared Contract;
(iii) any Contract with a licensor, developer, remarketer, distributor, and supplier of IT Assets or information technology services to a Seller Related to the Business pursuant to which a Seller paid, was billed or billed in the aggregate $100,000 or more during the most recent fiscal year;
(iv) any material Contract pursuant to which either Seller has made or will make loans or advances in an amount in excess of $100,000, other than in the Ordinary Course of Business;
(v) any Contract involving a partnership, joint venture or other cooperative undertaking;
(vi) any Contract containing commitments of suretyship, guaranty or indemnification by a Seller Related to the Business except in the Ordinary Course of Business;
(vii) any Contract for any material capital expenditures or material leasehold improvements;
(viii) any power of attorney or agency agreement or arrangement with any Person pursuant to which such Person is granted the authority to act for or on behalf of either Seller in connection with the Business;
(ix) any Software Contract;
(x) any Post-Petition Contract;
(xi) any other Contract not made in the Ordinary Course of Business that is to be performed in whole or in part to the licensing to at or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following after the date of this Agreement, ; and
(xii) any Contract not specified above the termination of which would result in a Material Adverse Effect.
(b) No Seller is subject to a non-competition agreement or (ii) that is otherwise material similar Contract with respect to the Company Business.
(c) No Seller has outstanding any material Contract Related to the Business to acquire any debt obligations of others, other than acquisitions of delinquent and defaulted receivables and Advances (including the reimbursement thereof) or in the Ordinary Course of Business.
(d) Except to the extent that Advances may be deemed to be loans, no Seller has any material outstanding loan to any Person Related to the Business, it being understood that obligations to reimburse employees for relocation, business, travel, entertainment or similar expenses incurred in the Ordinary Course of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto Business shall not be deemed loans for such purposes.
(collectively, the “Material Contracts”). e) Except as disclosed in Section 3.10 of set forth on Schedule 5.14(e), all Contracts Related to the Company Disclosure Schedule (i) each of Business to which a Seller is a party and to which the Material Contracts is Purchased Assets or Assumed Liabilities are subject are in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, effect and, subject to the knowledge Enforceability Exceptions, are enforceable against each party thereto in accordance with the express terms thereof. To the Knowledge of the CompanySellers, all other parties to the Material Contracts have, in all there are no material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company disputes pending or applicable Subsidiary, as the case may be, has not given or received any notice of default threatened under any of Contract included in the Material Contracts, (iv) no event has occurred Purchased Assets or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractAssumed Liabilities.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (New Century Financial Corp)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreementSchedule 2.13(a) contains a complete and accurate list of all contracts, origination agreementagreements, indenturecommitments, credit facilityinstruments and obligations (whether written or oral, securitization agreementproposed, mortgagecontingent or otherwise, security agreementbut, pledge agreementexcluding such obligation requiring financial payments or commitments of less than $2,500 per year) of the Seller, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement which relate to or instrument relating to affect the Business or the Assets (the “Seller Agreements”) including those concerning the following matters:
(i) the borrowing lease, as lessee or lessor, or license, as licensee or licensor, of money any real or obtaining extensions of credit by the Company personal property (tangible or any of its Subsidiaries or intangible);
(ii) the loaning employment or engagement of money any officer, director, employee, consultant or granting extensions of credit (agent, other than student loansthose terminable at will without severance obligation, and any covenant not to compete with any former employees;
(iii) by any contract or commitment that requires financial payments in the Company aggregate in excess of $10,000 or performance over a period of more than thirty (30) days;
(iv) any arrangement with any person or entity affiliated with or related to Seller or any Affiliate of its SubsidiariesSeller or any immediate family member thereof;
(v) any arrangement limiting the freedom of Seller to compete, solicit customers or solicit employees in any manner in any geographic area or line of business, or requiring Seller to share profits;
(vi) any arrangement not in the ordinary course of business under which Seller has agreed to assume Liabilities of another party or indemnify or hold harmless another party;
(vii) any arrangement that could reasonably be anticipated to have a Seller Material Adverse Effect;
(viii) any arrangement not in the ordinary course of business;
(ix) any power of attorney, whether limited or general, granted by or to Seller;
(x) any charitable commitment in excess of $2,000 individually per year;
(xi) any arrangement with customers, patients, managed care organizations, third party payors, pharmacy benefit managers or drug suppliers that requires financial payments in the aggregate in excess of $10,000 per year or performance over a period of more than thirty (30) days; and
(xii) any other arrangement that requires performance for a period of more than thirty (30) days or that requires aggregate payments in excess of $10,000.
(b) any agreement pursuant Seller has delivered to which Buyer true and complete copies of all of the Company or written Seller Agreements. Except as indicated on Schedule 2.13(b), the Seller Agreements are valid and effective in accordance with their terms, and there is not under any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
Seller Agreements (i) any business acquisition existing or divestiture agreement (claimed default by Seller or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists thatwhich, with the giving of notice, the passage notice or lapse of time, or both, would constitute a default by the Company Seller or applicable Subsidiary, as the case may be, or, (ii) to the knowledge Knowledge of the Company, Seller any existing or claimed default by any other party under or event which with notice or lapse of time, or both, would constitute a material default by any such party. Except as indicated on Schedule 2.13(b), the continuation, validity and effectiveness of the Seller Agreements will not be affected by the Acquisition, and the Acquisition will not result in a breach of or default under, or require the Consent of any other party to, any of the Material ContractsSeller Agreements. There is no actual or threatened termination, (v) neither cancellation or limitation of Seller Agreements identified in Section 2.13(a). To the Company or applicable Subsidiary, as the case may be, nor, to the knowledge Knowledge of the CompanySeller, there is no pending or threatened bankruptcy, insolvency or similar proceeding with respect to any other party has waived, or extended to the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractSeller Agreements.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Pediatric Services of America Inc)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth in Schedule 7.10(a), neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following typeany:
(ai) Contract for the employment of any loan agreementofficer, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or individual employee or other agreement Person or instrument Contract relating to loans to officers, directors or Affiliates;
(iii) Contract under which the borrowing Company or any of money its Subsidiaries has advanced, loaned or obtaining extensions of extended credit to any other Person amounts that in the aggregate exceed Ten Thousand Dollars and 00/100 ($10,000.00);
(iii) Contract that provides for, or relates to, the incurrence by the Company or any of its Subsidiaries of debt for borrowed money, other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company or any of its Subsidiaries;
(iiiv) Contract that provides for a guarantee of any obligation of any Person or provides that the loaning Company or any of money its Subsidiaries must assume or granting extensions become liable for any Indebtedness of credit any Person;
(v) Contract under which the Company or any of its Subsidiaries is lessee of or holds or operates any property, real or personal, owned by any other than student loansPerson;
(vi) Contract under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company or any of its Subsidiaries;
(bvii) assignment, license, indemnification or agreement with respect to any agreement pursuant to which the Company or intangible property (including any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amountIntellectual Property Rights);
(cviii) any agreement relating to the extension of insurance sales, distribution or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiariesfranchise Contract;
(dix) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures Contract that is not terminable by the Company or any of its Subsidiaries upon less than thirty (30) days notice without penalty and that involves consideration in excess of One Million Twenty Five Thousand Dollars and 00/100 ($1,000,000)25,000.00) in any twelve (12) month period;
(fx) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement Contract that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) freely engaging in any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating competing anywhere in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreementworld; or
(oxi) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) Contract that is otherwise material to the Company Company’s or any of its Subsidiaries. The Company has made available to Parent copies ’ operations or business prospects as currently contemplated.
(b) Each of all written contracts and commitments the Contracts listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto Schedule 7.10(a) (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 ) constitutes a valid and binding obligation of the Company Disclosure Schedule (i) each or, if applicable, one of its Subsidiaries and, to the Knowledge of the Material Contracts Company, of each other party thereto and is in full force and effecteffect and (except for those Material Contracts that by their terms will expire prior to the applicable Closing Date or are otherwise terminated prior to the applicable Closing Date in accordance with the provisions hereof) will continue in full force and effect after the Closings, (ii) in each case without breaching the terms thereof or resulting in the forfeiture or impairment of any rights thereunder and without the consent, approval or act of, or the making of any filing with, any other party. The Company and, if applicable, its Subsidiaries, have fulfilled and performed their material obligations under each Material Contract, and neither the Company nor any of its Subsidiaries is in, or applicable Subsidiaryalleged to be in, as the case may bedefault under or breach of, andnor is there or is there alleged to be any basis for termination of, any Material Contract, and to the knowledge Knowledge of the Company, all Company no other parties party to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material ContractsContracts has breached or defaulted thereunder, (iv) and no event has occurred and no condition or condition state of facts exists that, with the passage of time or the giving of notice, the passage of time, notice or both, would constitute such a default or breach by the Company or applicable SubsidiaryCompany, as the case may be, any of its Subsidiaries or, to the knowledge Knowledge of the Company, by any such other party. Neither the Company nor any of its Subsidiaries has any present expectation or intention of not fully performing all its obligations under each Material Contract, and the Company does not have Knowledge of any anticipated breach by any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 2 contracts
Samples: Series D Preferred Stock Purchase Agreement (Xstream Systems Inc), Series D Preferred Stock Purchase Agreement (Xstream Systems Inc)
Contracts and Commitments. (a) Except as set forth in the Company SEC Reports or on Section 3.10 Schedule 3.14(a) of the Company Disclosure Schedule, none of the Company, the Company or Subsidiaries nor any of its Subsidiaries the entities listed on Schedule 3.1(b) of the Company Disclosure Schedule is a party to or bound by any agreement, contract, commitment or other written instrument of the following typefollowing:
(ai) any loan agreementContract that provides for post-employment or post-consulting liabilities or obligations, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or including severance pay;
(ii) any Contract under which payments or obligations will be increased, accelerated or vested by the loaning occurrence (whether alone or in conjunction with any other event) of money any of the transactions contemplated by this Agreement, including the Merger, or granting extensions under which the value of credit the payments or obligations will be calculated on the basis of any of the transactions contemplated by this Agreement, including the Merger, whether pursuant to a change in control or otherwise;
(iii) any Contract currently in force relating to the disposition or acquisition of assets where the fair market value of such assets exceeds $100,000, in each case other than student loansinventory sold in the ordinary course of business;
(iv) any Contract relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise or Person, excluding wholly-owned Company Subsidiaries;
(v) any Contract for the purchase of materials, supplies, equipment or services, under which the aggregate payments made to one party or group of related parties during the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $100,000;
(vi) any Contract relating to the guarantee (whether absolute or contingent) by the Company or any of the Company Subsidiaries of (A) the performance of any other Person (other than the Company or a wholly-owned Company Subsidiary) or (B) the whole or any part of the indebtedness or liabilities of any other Person (other than the Company or a wholly-owned Company Subsidiary);
(vii) any Contract relating to the indemnification by the Company of its officers, directors, managers or agents;
(viii) any material Contract of indemnification or guaranty;
(ix) any power of attorney authorizing the incurrence of an obligation on the part of the Company or the Company Subsidiaries;
(bx) any agreement pursuant to Contract which limits or restricts (A) where the Company or any of the Company Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which the Company or any of its the Company Subsidiaries has purchased, generated may engage or sold student loans in excess (C) any acquisition of Five Million Dollars assets or stock ($5,000,000tangible or intangible) in principal amountby the Company or any of the Company Subsidiaries;
(cxi) any agreement relating Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $100,000;
(xii) any Contract for the extension borrowing or lending of insurance money, or the providing availability of any guarantee, pursuant to the Higher Education Act of 1965, as amended credit (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan except credit extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any Subsidiaries to customers in the ordinary course of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000business and consistent with past practice);
(fxiii) any agreement Contract relating to any hedging, option (other than options granted to service providers in connection with the performance of services), derivative or other similar transaction and any foreign exchange position or contract for the lease exchange of real property by the Company or any of its Subsidiariescurrency;
(gxiv) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third partiescollective bargaining agreements;
(hxv) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement Contract relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from employment of individuals who serve as officers of the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreementCompany; or
(oxvi) any other contract, agreement or commitment (i) with respect to which the aggregate amount Contract that could reasonably would otherwise be expected required to be paid filed as an exhibit to a periodic report under the Exchange Act, as provided by Item 601 of Regulation S-K promulgated under the Company or any Exchange Act. Each Contract of its Subsidiaries would exceed One Million Dollars ($1,000,000the type described in this Section 3.14(a) and in any twelve (12)-month period following existence as of the date hereof is referred to herein as a “Company Contract”.
(b) An accurate and complete copy of this Agreement, or each Company Contract (iiincluding all amendments thereto) that is otherwise material to the Company or any of its Subsidiaries. The Company has been made available to Parent copies of all written contracts and commitments listed in Section 3.10 Parent.
(c) Neither the Company nor any of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may beSubsidiaries, nor, to the knowledge of the Company, any other party has waivedto a Company Contract, is in material breach, violation or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, or has received written notice that it has breached, violated or defaulted under (B) give rise nor, to cancellation rights underthe knowledge of the Company, (C) require does there exist any condition under which, with the passage of time or the giving of notice or both, would reasonably be expected to cause such a breach, violation or default under), any third party underCompany Contract material to the Company’s operation of its business.
(d) Each Company Contract is a valid, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights binding and enforceable obligation of the Company and any applicable Company Subsidiary and, to the knowledge of the Company, of the other party or any Subsidiary underparties thereto, any Material Contractin accordance with its terms and is in full force and effect, in each case except to the extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law).
Appears in 2 contracts
Samples: Merger Agreement (Synageva Biopharma Corp.), Merger Agreement (Trimeris Inc)
Contracts and Commitments. Except (a) As of the date hereof, except as set forth in the Company SEC Reports or on Section 3.10 4.10 of the Company Disclosure ScheduleSchedules, none neither the Company nor any of its Subsidiaries is party to, nor bound by, any:
(i) Contract for the employment of any officer, individual employee or other person on a full-time or consulting basis with annual payments in excess of $100,000;
(ii) Contract relating to Indebtedness of the Company or any of its Subsidiaries is or to mortgaging, pledging or otherwise placing a party to or bound by Lien on any agreement, contract, commitment or other written instrument material portion of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed assets of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(biii) material guarantee of any agreement pursuant obligation for Indebtedness or other material guarantee;
(iv) Contract under which it is lessee of, or holds or operates any personal property, owned by any other party, for which the annual rental exceeds $250,000;
(v) Contract under which it is lessor of or permits any third party to hold or operate any personal property, for which the annual rental exceeds $250,000;
(vi) Contract that involves the performance of services or delivery of goods or materials by the Company or any of its Subsidiaries has purchased, generated or sold student loans resulting in annual revenue to the Company and its Subsidiaries in excess of Five Million Dollars ($5,000,000) in principal amount500,000;
(cvii) Contract that involves the performance of services for, or delivery of goods or materials to, the Company or any of its Subsidiaries resulting in annual expense to the Company and its Subsidiaries in excess of $500,000;
(viii) Contract which prohibits the Company or any of its Subsidiaries from freely engaging in any business in any geographical area or contains any exclusivity provisions or restrictions binding on the Company and its Subsidiaries or that would be binding on the Buyer and its Affiliates after the Closing;
(ix) joint venture, partnership or limited liability company agreement or other similar Contract;
(x) Contract relating to interest rate, derivative or hedging transactions;
(xi) Contract between the extension Company or any Subsidiary thereof, on the one hand, and any officer, director, employee, holder of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency Shares or other entity equity interests or Affiliate of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries, on the other hand (but excluding any Contracts required to be disclosed pursuant to clause (i) above or would be required to be disclosed if not for the dollar threshold set forth therein);
(dxii) any agreement by which the Company IP Licenses requiring annual payment to or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by from the Company or any of its Subsidiaries in excess of One Million Dollars $50,000 ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty other than a shrink wrap or similar agreement involving the sharing license for generally available Software on reasonable terms for a license fee of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transactionno more than $25,000);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise are material to the Company or any of Subsidiary thereof (including with respect to any material product); and
(xiii) any other Contract or arrangement that is material to the Company and its Subsidiaries. , taken as a whole.
(b) The Company Buyer either has made available to Parent copies been supplied with, or has been given access to, a true and correct copy of all written contracts and commitments listed Contracts (together with all material amendments, waivers or other modifications thereto) required to be set forth in Section 3.10 4.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto Schedules (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule .
(ic) each of the Each Material Contracts Contract is in full force and effecteffect and constitutes a legal, (ii) valid and binding obligation of the Company or its Subsidiaries and, to the Knowledge of the Company, the other parties thereto, and is enforceable against the Company or such Subsidiary in accordance with its terms (except to the extent that the enforceability thereof may be limited by applicable Subsidiarybankruptcy, as insolvency, reorganization, moratorium, fraudulent conveyance or other Laws from time to time in effect relating to creditors’ rights and remedies generally and general principles of equity). Neither the case may beCompany nor any of its Subsidiaries is in breach or default of any Material Contract in any material respect, nor has the Company or any of its Subsidiaries received written (or to the Company’s Knowledge, oral) notice of any such material breach or default, and, to the knowledge Knowledge of the Company, all other parties to no condition or event or fact exists which, with notice, lapse of time or both, would constitute a material breach or default thereof on the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) part of the Company or applicable Subsidiary, as such Subsidiary or result in a termination thereof or permit other changes of any right or obligation or loss of benefit thereunder. To the case may be, has not given or received any notice of default under any Knowledge of the Company, no other party to any Material ContractsContract is in breach or default in any material respect thereunder, (iv) no event has occurred or nor does any condition exists exist that, with the giving of notice, the passage notice or lapse of time, or both, would constitute a material breach or default by such other party thereunder. Neither the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under nor any of the Material Contracts, (v) neither the Company its Subsidiaries has received any notice of termination or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations cancellation under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Griffon Corp), Stock Purchase Agreement (Ames True Temper, Inc.)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreementSchedule 3.9 hereto lists the following agreements, origination agreementwhether oral or written, indentureto which Parent or Merger Sub is a party, credit facilitywhich are currently in effect, securitization agreementand which relate to the operation of Parent’s business, mortgageor where applicable, security agreement, pledge agreement, deed the business of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to Merger Sub: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; (iv) stock purchase or stock option plan; (v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person; (vi) confidentiality agreement; (vii) contract, agreement or understanding relating to the voting of Parent Common Stock or the election of directors of Parent; (viii) agreement or indenture relating to the borrowing of money or obtaining extensions of credit by the Company to mortgaging, pledging or otherwise placing a lien on any of its Subsidiaries the assets of Parent or Merger Sub; (iiix) the loaning guaranty of any obligation for borrowed money or granting extensions otherwise; (x) lease or agreement under which Parent or Merger Sub is lessee of, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $25,000; (xi) lease or agreement under which Parent or Merger Sub is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $25,000; (xii) contract which prohibits Parent or Merger Sub from freely engaging in business anywhere in the world; (xiii) license agreement or agreement providing for the payment or receipt of credit royalties or other compensation by Parent or Merger Sub in connection with any intellectual property rights; (xiv) contract or commitment for capital expenditures in excess of $50,000; (xv) agreement for the sale of any capital asset; (xvi) contract with Merger Sub any affiliate thereof which in any way relates to Parent (other than student loansfor employment on customary terms); or (xvii) by other agreement which is either material to Parent’s business or was not entered into in the Company or any ordinary course of its Subsidiaries;business.
(b) any agreement pursuant To Parent’s knowledge, Parent and Merger Sub has performed all obligations required to which be performed by them in connection with the Company contracts or any of its Subsidiaries has purchased, generated or sold student loans commitments required to be disclosed in excess of Five Million Dollars ($5,000,000) Schedule 3.9 hereto and is not in principal amount;
(c) any agreement relating to the extension of insurance or the providing receipt of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice claim of default under any contract or commitment required to be disclosed under such caption, Parent and Merger Sub, where applicable, have no present expectation or intention of the Material Contractsnot fully performing any material obligation pursuant to any contract or commitment required to be disclosed under such caption, (iv) and Parent has no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any breach or anticipated breach by any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, contract or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractcommitment required to be disclosed under such caption.
Appears in 2 contracts
Samples: Merger Agreement (Laurier International Inc), Merger Agreement (Lexicon United Inc)
Contracts and Commitments. (a) Except as set forth in on Schedule 4.9, the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is not a party to any oral or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to written: (i) collective bargaining agreement or contract with any labor union, (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.4 or on Schedule 4.14, (iii) stock purchase plan, option plan or similar plan, (iv) contract for the employment of any officer, employee or other person on a full-time, part-time, or consulting basis, (v) agreement or indenture relating to the borrowing of money or obtaining extensions of credit by the Company to mortgaging, pledging or otherwise placing a lien on any of its Subsidiaries or the Company’s assets, (iivi) the loaning guaranty of any obligation for borrowed money or granting extensions of credit other material guaranty, (vii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to party, for which the Company annual rental exceeds $25,000, (viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $25,000, (ix) contract or group of its Subsidiaries related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has purchased, generated or sold student loans a selling price in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance 50,000 or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by under which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries an amount in excess of One Million Dollars $50,000 remains due to the Company, ($1,000,000);
(fx) any agreement contract or group of related contracts with the same party for the lease sale of real property by products or services for each party to whom the Company has sold products or any services with a sales price in excess of its Subsidiaries;
(g) any contract or agreement that subjects $200,000 during the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any last twelve (12)-month period following calendar months preceding the date of this Agreement, (xi) contract or non-competition provision in any contract prohibiting the Company from freely engaging in any business or competing anywhere in the world or otherwise limiting in any material respect the use, license, transfer, exploitation, commercialization or sale of the Company’s products, (iixii) that is otherwise contract with any officer, director or shareholder (other than for employment on customary terms), (xiii) contract with independent agents, brokers, dealers or distributors not terminable on 60 days or less notice without liability to the Company, (xiv) material sales, commissions, advertising or marketing contract not terminable on 60 days or less notice without liability to the Company or any (xv) contract entered into other than in the ordinary course of its Subsidiaries. business and that is material to the Company.
(b) The Company Buyer has made available to Parent copies been supplied with a true and correct copy of all written contracts and commitments which are listed in Section 3.10 of the Company Disclosure Scheduleon Schedule 4.9, summaries of together with all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleamendments, and all modifications and supplements thereto waivers or other changes thereto.
(collectively, the “Material Contracts”). c) Except as disclosed in Section 3.10 of the Company Disclosure set forth on Schedule 4.9(c), (i) each of the Material Contracts is in full force and effect, (ii) the Company is not in material default under, or applicable Subsidiaryin material breach of, as the case may beand has not cancelled, any contract listed on Schedule 4.9 and, to the knowledge Company’s Knowledge, no other party to any contract listed on Schedule 4.9 is in default under, or in breach of or has cancelled any such contract; (ii) to the Company’s Knowledge, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, that with the giving of notice, the passage of time, time or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to or both would result in a breach or default under any third party undersuch contract or agreement; and (iii) each contract and agreement listed on Schedule 4.9 is legal, (D) require the consent of any counterparty undervalid, or (E) otherwise adversely affect any of the rights of binding and enforceable against the Company or any Subsidiary underand, any Material Contractto the Company’s Knowledge, the other parties thereto.
Appears in 2 contracts
Samples: Share Purchase Agreement (VeriChip CORP), Share Purchase Agreement (Applied Digital Solutions Inc)
Contracts and Commitments. (a) Except as set forth in on the attached CONTRACTS SCHEDULE, neither the Company SEC Reports nor any Subsidiary is party to any: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.13 or on Section 3.10 the attached EMPLOYEE BENEFITS SCHEDULE; (iii) stock purchase, stock option or similar plan; (iv) contract for the employment or any contract relating to wages, hours or other conditions of employment of any officer, individual employee or other person on a full-time, part-time or consulting basis; (v) agreement or indenture relating to the borrowing of money or a line of credit or to mortgaging, pledging or otherwise placing a lien on any material portion of the Company Disclosure ScheduleCompany's or any Subsidiary's assets; (vi) guaranty of any obligation for borrowed money or other material guaranty; (vii) lease or agreement under which it is a lessee or lessor of, none of or holds or operates, or permits any third party to hold or operate, any personal or real property for which the annual rental exceeds $50,000; (viii) license or other contract with respect to Intellectual Property, including, without limitation, the Intellectual Property rights and franchise agreements to which the Company or any of its Subsidiaries is a party party; (ix) contracts not entered into in the ordinary course of business that involve expenditures or receipts in excess of $50,000 to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by which the Company or any Subsidiary is a party; (x) contracts for capital expenditures in excess of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant $50,000 to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars is a party; ($5,000,000xi) in principal amount;
(c) any agreement contracts relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended acquisition by the Company or any Subsidiary of its Subsidiaries;
the capital stock of any other Person or granting the Company or any Subsidiary an option to purchase any asset, tangible or intangible, or real or personal property of any other Person; (dxii) any agreement by representative or sales agency contracts or commitments to which the Company or any of its Subsidiaries services student loans for any third is a party; (xiii) contract or group of related contracts with the same party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries of products or services under which the undelivered balance of such products and services has a selling price in excess of One Million Dollars $50,000; ($1,000,000);
(fxiv) any agreement contract or group of related contracts with the same party for the lease of real property sale by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right products or services under which the undelivered balance of such products or services has a sales price in excess of $50,000; (as defined in Section 3.19(c));
(kxv) any contract or agreement with any Governmental Authority;
Affiliate; (lxvi) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) contracts restricting a Person from competing with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The ; (xvii) contracts which prohibit or restrict in any manner the Company or any Subsidiary from freely engaging in any line of business anywhere in the world; or (xviii) other material contracts.
(b) Buyer either has made available to Parent copies been supplied with, or has been given access to, a true and correct copy of all written contracts and commitments which are referred to on the attached CONTRACTS SCHEDULE, together with all amendments, waivers or other changes thereto.
(c) All contracts listed in Section 3.10 of on the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is attached CONTRACTS SCHEDULE are in full force and effecteffect and constitute legal, (ii) valid and binding obligations of the Company and/or its Subsidiaries, except where the failure of such contracts to be in full force and effect and to constitute legal, valid and binding obligations would not, individually or applicable Subsidiaryin the aggregate, as have a Material Adverse Effect. Neither the case may be, andCompany nor any Subsidiary nor, to the knowledge of the Company's knowledge, all any other parties to the Material Contracts haveparty, in all material respects, performed their obligations and are not is in default under any contract listed on the attached CONTRACTS SCHEDULE, except where such default would not have a Material ContractsAdverse Effect, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) and no event has occurred which, but for the passage of time or condition exists that, with the giving of notice, the passage of time, or both, would constitute such a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractdefault.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Atrium Companies Inc), Stock Purchase Agreement (Best Built Inc)
Contracts and Commitments. Except (a) Schedule 3.16(a) sets forth each written contract or agreement outstanding as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of date hereof to which Seller or the Company or any of its Subsidiaries Acquired Subsidiary is a party relating to the Acquired Business (other than any contract or bound by agreement required to be disclosed on any agreement, contract, commitment or other written instrument of schedule to the following typeSeller Disclosure Letter) and which:
(ai) involves future payment or receipt of in excess of Cdn$250,000 or future performance or receipt of services or delivery or receipt of goods and materials, in each case with an aggregate value in excess of Cdn$250,000, including but not limited to sale and purchase agreements, distributorship and sales representative agreements and loan agreements, notes and other financing documents or commitments to enter into any loan agreement, origination agreement, indenture, credit facility, securitization agreement, of the foregoing agreements;
(ii) is a guarantee or indemnity in respect of indebtedness of any Person (including Seller or any Affiliate of Seller or the Acquired Subsidiary) which may involve future payment in excess of Cdn$5,000 or is a mortgage, security agreement or other arrangement intended to secure indebtedness of any Person (including Seller or any Affiliate of Seller or the Acquired Subsidiary) in excess of Cdn$5,000 and creating an Encumbrance on any asset relating to the Acquired Business;
(iii) imposes a right of first refusal, option or other restriction with respect to any assets relating to the Acquired Business;
(iv) is a loan or advance to, or investment in, any Person or an agreement, pledge contract or commitment relating to the making of any such loan, advance or investment in excess of Cdn$5,000 that will be outstanding after the Closing; or
(v) is an agreement, deed contract or commitment limiting the freedom of trust, bond, note, guaranty, surety, trust agreement and/or other agreement the Acquired Business to engage in any line of business or instrument relating to compete with any Person (i) except for exclusive distributorship agreements of Seller entered into in the borrowing ordinary course of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;business).
(b) Except as disclosed on Schedule 3.16(b), Seller has heretofore delivered to Buyer and Buyer Parent complete and correct copies of each of the agreements set forth in Schedule 3.16(a) and the written agreements or contracts of the Acquired Business disclosed in any agreement pursuant other schedule to which the Company or Seller Disclosure Letter (the "Contracts"). There is not under any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars material Contract: ($5,000,000) in principal amount;
(cA) any agreement relating to the extension of insurance existing material default by Seller or the providing of any guaranteeAcquired Subsidiary or, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”)Seller's best knowledge, by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreementthereto, or (iiB) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving after notice or lapse of notice, the passage of time, time or both, would constitute a material default by Seller or the Company or applicable Subsidiary, as the case may be, Acquired Subsidiary or, to the knowledge of the CompanySeller's best knowledge, by any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waivedparty, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution result in a right to accelerate or terminate or result in a loss of this Agreement nor the consummation rights of the Offer Seller or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractAcquired Subsidiary.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Hosposable Products Inc), Asset Purchase Agreement (Hosposable Products Inc)
Contracts and Commitments. (a) Except as set forth in filed as an exhibit to Identix' SEC Reports, neither Identix, the Company SEC Reports Identix Subsidiaries, or the entities listed on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries Schedule 3.1(b) is a party to or bound by any agreement, oral or written contract, obligation or commitment or other written instrument of any type in any of the following typecategories:
(ai) agreements or arrangements that contain severance pay, understandings with respect to tax arrangements, understandings with respect to expatriate benefits, or post-employment liabilities or obligations;
(ii) agreements or plans under which benefits will be increased or accelerated by the occurrence of any loan agreementof the transactions contemplated by this Agreement, origination agreementor under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) agreements, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement contracts or instrument commitments currently in force relating to the disposition or acquisition of assets other than in the ordinary course of business, or relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise;
(iiv) agreements, contracts or commitments for the borrowing purchase of money materials, supplies or obtaining extensions of credit by the Company equipment which provide for purchase prices substantially greater than those presently prevailing for such materials, supplies or equipment, or which are with sole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which Identix or any of its the Identix Subsidiaries is absolutely or contingently liable for (iiA) the loaning performance of money any other person, firm or granting extensions of credit corporation (other than student loansIdentix or the Identix Subsidiaries), or (B) by the Company whole or any part of its the indebtedness or liabilities of any other person, firm or corporation (other than Identix or the Identix Subsidiaries);
(vi) powers of attorney authorizing the incurrence of a material obligation on the part of Identix or the Identix Subsidiaries;
(bvii) any agreement pursuant to agreements, contracts or commitments which the Company limit or restrict (A) where Identix or any of its the Identix Subsidiaries has purchasedmay conduct business, generated (B) the type or sold student loans in excess lines of Five Million Dollars business ($5,000,000current or future) in principal amount;
which they may engage, or (cC) any agreement relating to the extension acquisition of insurance assets or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended stock (the “Higher Education Act”), tangible or intangible) by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company Identix or any of its the Identix Subsidiaries;
(dviii) agreements, contracts or commitments containing any agreement by which the Company with respect to a change of control of Identix or any of its the Identix Subsidiaries;
(ix) agreements, contracts or commitments for the borrowing or lending of money, or the availability of credit (except credit extended by Identix or any of the Identix Subsidiaries services student loans to customers in the ordinary course of business and consistent with past practice);
(x) any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency.
(b) Neither Identix nor any third of the Identix Subsidiaries, nor to Identix' knowledge any other party to an Identix Contract (as defined below), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, (nor does there exist any condition under which, with the passage of time or the giving of notice or both, could reasonably be expected to cause such a breach, violation or default under), any material agreement, contract or commitment to which Identix or any of the Identix Subsidiaries is a party or by which any third party services student loans for the Company of them or any of its Subsidiaries;their properties or assets may be bound (any such agreement, contract or commitment, an "IDENTIX CONTRACT"), other than any breaches, violations or defaults which individually or in the aggregate would not have an Identix Material Adverse Effect.
(ec) any open purchase order or contract for capital expenditures by the Company or any Each Identix Contract is a valid, binding and enforceable obligation of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries Identix and to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customersIdentix' knowledge, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleother party or parties thereto, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleaccordance with its terms, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) except where the Company or applicable Subsidiaryfailure to be valid, as the case may bebinding, and, enforceable and in full force and effect would not have an Identix Material Adverse Effect and to the knowledge extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of the Company, all other parties creditors' rights governing or by general principles of equity.
(d) An accurate and complete copy of each Identix Contract has been made available to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractVisionics.
Appears in 2 contracts
Samples: Merger Agreement (Visionics Corp), Merger Agreement (Identix Inc)
Contracts and Commitments. (a) Except (1) for Company Franchise Agreements and (2) as set forth in the Company SEC Reports or on Section 3.10 Schedule 3.09 of the Company Disclosure ScheduleSchedules, none of the Company or any of its Subsidiaries Acquired Companies is a party to or bound by any agreement, contract, commitment or other written instrument of the following typeexecutory:
(ai) bonus, pension, profit sharing, retirement or other form of deferred compensation plan or Contract;
(ii) Contract or indenture relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any loan agreementportion of the assets of the Acquired Companies;
(iii) guaranty of any obligation for Indebtedness or other guaranty involving more than $100,000;
(iv) lease or Contract under which it is lessee of, origination agreementor holds or operates any personal property owned by any other party, indenturefor which the annual rental exceeds $100,000;
(v) lease or Contract under which it is lessor of or permits any third party to hold or operate any of its personal property, credit facilityfor which the annual rental exceeds $100,000;
(vi) other than in respect of blanket purchase orders that do not obligate the Company to purchase a minimum amount, securitization agreementContract or group of related Contracts with the same party for the purchase by any Acquired Company of products or services which provided for annual payments in excess of $100,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet;
(vii) Contract relating to any future disposition or acquisition of material stock, mortgageassets or properties by any Acquired Company, security agreementor any merger or business combination with respect to or involving any Acquired Company (other than this Agreement);
(viii) Contract requiring any Acquired Company to purchase its total requirements of any product or services from a third party or that contain “take or pay” provisions;
(ix) broker, pledge agreementdistributor, deed of trustdealer, bondmanufacturer’s representative, noteagency, guarantysales promotion, suretymarket research, trust agreement and/or other agreement marketing consulting or instrument advertising Contract involving more than $100,000 annually;
(x) material license or Contract relating to (i) the borrowing use by any Acquired Company of money or obtaining extensions of credit by the Company or any of its Subsidiaries third-party Intellectual Property or (ii) the loaning use of money any Company Intellectual Property other than non-exclusive licenses granted to distributors in the ordinary course of business;
(xi) Contract which limits or granting extensions prohibits or purports to limit or prohibit any Acquired Company from competing or freely engaging in any line of credit business or with any Person or anywhere in the world or during any period of time or containing any exclusivity, most favored nations, non-solicitation or similar provisions;
(xii) other than with respect to any of the Company’s Subsidiaries set forth on Schedule 3.04 of the Disclosure Schedules, Contract that provides for any joint venture, partnership or similar arrangement by any Acquired Company;
(xiii) Contract between or among any Acquired Company on the one hand and any Affiliate of any Acquired Company (other than student loans) by the Company or any of its Subsidiaries) on the other hand;
(xiv) employment agreement or contract with an independent contractor or consultant (or similar arrangement) to which an Acquired Company is a party and which is not cancellable without material penalty or without more than thirty (30) days’ notice;
(xv) collective bargaining agreement or Contract with any union, works council or labor organization; or
(xvi) any other Contract, the absence of which would cause a Material Adverse Effect.
(b) any agreement pursuant to which the The Company either has supplied Purchaser with, or any has given Purchaser access to, a true and correct copy of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity all Contracts listed on Schedule 3.09 of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
Disclosure Schedules (d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule , together with all material amendments, modifications and supplements thereto.
(c) With respect to each Material Contract: (i) each such contract is a valid and binding agreement of an Acquired Company, as applicable, enforceable in accordance with its terms, except as the Material Contracts is in full force enforcement thereof may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and effect, general principles of equity affecting the availability of specific performance and other equitable remedies; (ii) none of the Company or applicable SubsidiaryAcquired Companies, as the case may beapplicable, andis in material breach or default, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the nor has any Acquired Company or applicable Subsidiary, as the case may be, has not given or received taken any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists thataction which, with the giving notice or lapse of notice, the passage of time, time or both, would constitute a default by the Company material breach or applicable Subsidiarydefault, or permit termination, modification or acceleration, as the case may beapplicable, or, under such contract; and (iii) to the knowledge of the Company’s knowledge, any no other party is in material breach or default under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractsuch contract.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (CNL Strategic Capital, LLC)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 3.17 of the Company Disclosure Schedule, none of Schedule lists the following agreements to which the Company or any of its Subsidiaries is a party to or bound by which any agreement, contract, commitment or other written instrument of the following typetheir assets are bound:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guarantybond or other evidence of Indebtedness, suretyany loan, trust security, credit, factoring or similar agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to under which the Company or any of its Subsidiaries has purchasedborrowed or may borrow money or issued any note, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guaranteebond, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency indenture or other entity evidence of Indebtedness for more than $50,000 individually or $100,000 in the principal of and/or accrued interest on any student loan extended by the Company aggregate or any of its Subsidiaries;
(d) any agreement by under which the Company or any of its Subsidiaries services student loans for any third party has imposed (or by which any third party services student loans for the Company or may impose) a Lien on any of its Subsidiariesrespective assets, tangible or intangible;
(eb) any open purchase order confidentiality, non-solicitation or contract for capital expenditures by non-competition agreement or any agreement which restricts, limits or prohibits the Company or any of its Subsidiaries from entering into any new, or expanding any existing, line of business or any agreement which contains geographic or other limitations, prohibitions or restrictions on the Company's or any of its Subsidiaries' ability to conduct business activities;
(c) any agreement under which the Company or any of its Subsidiaries could have Liabilities after the Closing with any current or former directors, officers, and employees in excess the nature of One Million Dollars an employment agreement, a consulting agreement or a severance agreement;
($1,000,000d) any collective bargaining agreement with any labor union;
(e) any agreement under which the Company or any of its Subsidiaries could have Liabilities in the future relating to the acquisition or disposition of material assets or properties by way of merger, consolidation, purchase, sale or otherwise, or granting to any Person a right at such Person's option to purchase or acquire any material asset or property, of the Company or any of its Subsidiaries or any interest therein (not including dispositions of inventory in the Ordinary Course of Business);
(f) any agreement for the lease construction, acquisition or modification of real property by any land, building, structure, improvement, fixture or other fixed asset, or for the incurrence of any other capital expenditure involving amounts in excess of $100,000 in the aggregate;
(g) any agreement with the Company or any of its Subsidiaries, on the one hand, and any officer, director, employee or Affiliate of the Company or any of its Subsidiaries, on the other hand;
(gh) any contract settlement, conciliation or similar agreement; and
(i) any agreement that subjects not otherwise required to be disclosed pursuant to this Section 3.17 the consequences of a default or termination thereunder would result in material Liabilities to the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiarieshave a Material Adverse Effect. The Company has made available to Parent copies the Purchasers Representative a correct and complete copy of all each written contracts and commitments agreement listed in Section 3.10 3.17 of the Disclosure Schedule and a written summary setting forth the terms and conditions of each oral agreement listed in Section 3.17 of the Disclosure Schedule. Except as set forth in Section 3.17 of the Disclosure Schedule, all such agreements are valid, binding and enforceable obligations of the Company Disclosure Scheduleor its Subsidiaries, summaries of all oral contracts and commitments listed as applicable, in Section 3.10 of the Company Disclosure Scheduleaccordance with their terms, and all modifications and supplements thereto (collectivelyexcept as specifically contemplated by this Agreement, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is will remain in full force and effect, (ii) effect as to all parties thereof following the Closing. Neither the Company nor any of its Subsidiaries is in default in the observance or applicable Subsidiarythe performance of any material term or obligation to be performed by it under any such agreement, as the case may be, and, and to the knowledge Knowledge of the Company, all no other parties to the Material Contracts have, in all material respects, performed their obligations and are not Person is in default under in the Material Contracts, (iii) observance or the Company performance of any material term or applicable Subsidiary, as the case may be, has not given or received any notice of default obligation to be performed by such Person under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractsuch agreement.
Appears in 2 contracts
Samples: Series B Preferred Stock Purchase Agreement (Williams Controls Inc), Series B Preferred Stock Purchase Agreement (Williams Controls Inc)
Contracts and Commitments. (a) Except as set forth expressly contemplated by this Agreement or as disclosed in the Company Issuer SEC Reports filed prior to the date of this Agreement or on Section 3.10 of Schedule 3.14 under either the Company Disclosure Scheduleheading Contracts or the heading Employee Benefits or Schedule 3.12, none of neither the Company or Issuer nor any of its Subsidiaries Subsidiary is a party to or bound by any agreement, contract, commitment written or other written instrument of the following typeoral:
(ai) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any loan agreementother employee benefit plan or arrangement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other or any collective bargaining agreement or instrument relating to (i) the borrowing of money any other contract with any labor union, or obtaining extensions of credit by the Company severance agreements, programs, policies or any of its Subsidiaries or arrangements;
(ii) contract for the loaning employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis providing annual compensation in excess of $100,000 or contract relating to loans to officers, directors or Affiliates;
(iii) contract under which the Issuer or Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $250,000;
(iv) agreement or indenture relating to borrowed money or granting extensions other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of credit (other than student loans) by assets of the Company or any of Issuer and/or its Subsidiaries;
(bv) guarantee of any obligation in excess of $100,000 (other than by the Issuer of a wholly-owned Subsidiary's debts or a guarantee by a Subsidiary of the Issuer's debts or of another wholly-owned Subsidiary's debts) other than in connection with the Credit Agreement;
(vi) lease or agreement under which the Issuer or any Subsidiary is lessee of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $50,000;
(vii) lease or agreement under which the Issuer or any Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Issuer or any Subsidiary, respectively;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in excess of $250,000;
(ix) assignment, license, indemnification or agreement with respect to any material intangible property (including, without limitation, any Intellectual Property Rights);
(x) express warranty agreement with respect to its services rendered or its products sold or leased;
(xi) agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xii) sales, distribution or franchise agreement the performance of which involves consideration in excess of $250,000;
(xiii) agreement, the performance of which involves consideration in excess of $250,000, with a term of more than six months which is not terminable by the Issuer or any Subsidiary upon less than 30 days notice without penalty;
(xiv) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world;
(xv) any joint venture agreement or other agreement pursuant to which the Company Issuer or any of its Subsidiaries Subsidiary has purchasedmade, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to governing the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company Issuer's or any of its Subsidiaries;
(d) Subsidiary's investment in any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreementother person; or
(oxvi) any other contractagreement which is material to its operations and business prospects or involves a consideration in excess of $250,000 annually.
(b) All of the contracts, agreement agreements and instruments set forth or commitment (i) with respect to which the aggregate amount that could reasonably be expected required to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) set forth on Schedule 3.14 are valid, binding and enforceable in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”)accordance with their respective terms. Except as disclosed in Section 3.10 of set forth on Schedule 3.12, Schedule 3.14, Schedule 3.16, or Schedule 3.08, the Company Disclosure Schedule (i) Issuer and each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in Subsidiary has performed all material respectsobligations required to be performed by it under the contracts, performed their obligations agreements and instruments listed on Schedule 3.14 or required to be set forth and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received in breach of nor in receipt of any notice claim of default or breach under any of material contract, agreement or instrument to which the Material Contracts, (iv) Issuer or any Subsidiary is subject and no event has occurred or condition exists that, which with the giving of notice, the passage of time, time or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party underor both would result in a default, (D) require breach or event of noncompliance by the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company Issuer or any Subsidiary underunder any material contract, agreement or instrument to which the Issuer or any Subsidiary is subject; the Issuer has no present intention of not fully performing all such obligations; the Issuer has no knowledge of any breach or anticipated breach by the other parties to any material contract, agreement, instrument or commitment to which it is a party; and neither the Issuer nor any Subsidiary is a party to any contract or commitment or group of contracts or commitments the performance of which could have a Material ContractAdverse Effect.
(c) Upon request, the Issuer will make available to the Purchasers a true and correct copy of each of the written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are listed on, referred to or required to be listed on or referred to on Schedule 3.14, together with all amendments, waivers or other changes thereto.
Appears in 2 contracts
Samples: Securities Purchase Agreement (United Shipping & Technology Inc), Securities Purchase Agreement (United Shipping & Technology Inc)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 (a) Schedule 4.15 of the Company Disclosure ScheduleSchedule contains a list (and. where oral, none of a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party to party, or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by which the Company or any of its Subsidiaries Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the loaning ordinary course of money business consistent with past practice and involves payments or granting extensions receipts in excess of credit Fifty Thousand Dollars (other than student loans$50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(biii) All employment agreements, consulting agreements and executive compensation plans affecting any agreement pursuant to which the Company persons employed or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended retained by the Company or any of its Subsidiaries;
(div) any Any agreement by which containing covenants limiting the freedom of the Company or any of its Subsidiaries services student loans to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any third party of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or by which any third party services student loans for partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(eviii) any open purchase order Any agreement of indemnification or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by guaranty involving the Company or any of its Subsidiaries;
(gix) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or Any agreement with any Governmental Authority;
(l) of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any material sales, marketing severance pay or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, payment upon the occurrence of a “change in control” agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company , whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has made available to Parent copies of all written contracts and commitments listed any direct or indirect pecuniary interest in Section 3.10 of the Company Disclosure Schedule, summaries or any of all oral its material assets.
(b) The contracts and commitments required to be listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Material Contracts is in full force and effecteffect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company or applicable Subsidiary, as the case may be, and, to the knowledge nor any of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not its Subsidiaries is in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default its obligations under any of the Material Contracts, (iv) and no event has occurred event, occurrence, condition or condition exists thatact which, with the giving of notice, the passage lapse of time, time or both, would constitute the happening of any further condition could become a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge its Subsidiaries under any of the CompanyContracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 2 contracts
Samples: Stock Acquisition Agreement (Active Network Inc), Stock Acquisition Agreement (Active Network Inc)
Contracts and Commitments. Except (a) Schedule 3.09(a) sets forth a true, correct and complete list as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none date of this Agreement of each of the following types of Contracts to which any Trilogy Party or any of its Subsidiaries is a party:
(i) all Contracts evidencing any obligations of the Company or any of its Subsidiaries is a party with respect to the issuance, sale, repurchase or bound by redemption of any agreement, contract, commitment or other written instrument Equity Interests of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(bii) all collective bargaining agreements or Contracts with any labor union with respect to employees of the Company or any of its Subsidiaries and any such agreements currently in negotiation or proposed;
(iii) all Contracts for capital expenditures or the acquisition of fixed assets in excess of $5,000,000;
(iv) all Contracts for the employment of any officer, individual employee or other person on a full-time, part-time or consulting basis in each case providing for compensation in excess of $100,000 and any such agreements currently in negotiation or proposed (each an “Employment Agreement”);
(v) all Contracts relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens except any Permitted Liens described in clause (ix) of the definition thereof) on any assets of the Company or any of its Subsidiaries;
(vi) all guarantees of any obligation for Indebtedness or other guaranty of performance relating to any Person other than the Company or any of its Subsidiaries;
(vii) all Contracts, including any management agreement, under which the Company or any of its Subsidiaries is lessee of or holds, manages or operates any real or personal property owned by any other Person, for which the annual contract payments exceed $1,000,000, or under which there are any material outstanding obligations;
(viii) all Contracts under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold, manage or operate any property, real or personal, for which the annual contract payments exceed $1,000,000;
(ix) all Contracts or any group of related Contracts with the same Person (and its Affiliates) which provide, or would reasonably be expected to provide, for payments in excess of $1,000,000 in the calendar year ending on December 31, 2015;
(x) all Contracts that (A) prohibit the Company or any of its Subsidiaries from freely engaging in business anywhere in the world (other than, for the avoidance of doubt, any Lease or any agreement to keep information confidential entered into in the ordinary course of business), (B) provide for “most favored nations” terms or establish an exclusive sale or purchase obligation with respect to any product or geographic area or (C) contain a “right of first offer” or “right of first refusal” on behalf of any other Person to acquire the Company or any of its Subsidiaries or any assets or business thereof;
(xi) all Contracts pursuant to which payments by the Company or any of its Subsidiaries will be required to an employee or service provider of the Company or any of their Subsidiaries in connection with the consummation of the Contemplated Transactions;
(xii) all Contracts pursuant to which the Company or any of its Subsidiaries has purchased, generated acquired or sold student loans disposed of any properties or other assets with a value in excess of Five Million Dollars ($5,000,000) in principal amount1,000,000 or which contains material indemnification, earn-out or other outstanding obligations;
(cxiii) all Contracts for any joint venture or partnership with any Person (other than a wholly-owned Subsidiary of the Company);
(xiv) all Contracts relating to any Related Party Transactions;
(xv) any agreement stock option, stock purchase, stock appreciation plan or other equity or equity-based arrangement;
(xvi) all Contracts relating to the extension licensing of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended Company Intellectual Property by the Company or any of its SubsidiariesSubsidiaries to a third party or of any material Intellectual Property by a third party to the Company or any of its Subsidiaries (except for licenses of commercially available off-the-shelf software which require a payment of less than $100,000 per year);
(dxvii) any agreement by all Contracts under which the Company or any of its Subsidiaries services student loans for has advanced or loaned an amount to any third party Person (other than Related Party Transactions), other than trade credit in the ordinary course of business;
(xviii) all Contracts entered into since January 1, 2011 involving any resolution or by settlement of any actual or threatened Action or other dispute which has a value greater than $1,000,000 or imposes any third party services student loans for continuing obligations on any of the Company or any of its Subsidiaries, including injunctive or other non-monetary relief;
(exix) all Contracts to which a physician or an “immediate family member” of a physician (as such term is defined for purposes of the Xxxxx Law) is a party, whether or not such agreement relates to medical services (each, a “Physician Contract”);
(xx) all Contracts with Key Suppliers;
(xxi) all Contracts with a health care provider involving annual amounts exceeding $100,000, including, without limitation, hospitals, hospice providers, home health providers and therapy providers;
(xxii) any open purchase order or contract for capital expenditures by Contract with a Governmental Entity; and
(xxiii) all Contracts pursuant to which the Company or of any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) has the right to acquire or lease any agreement for the lease additional parcel of real property by (i.e., any parcel of property not constituting a part of Owned Real Property or Leased Real Property as of the date hereof). The Contracts described in the foregoing clauses (i) through (xviii), whether entered into prior to, on or after the date hereof, are collectively referred to as “Company Contracts.” For the avoidance of doubt, this Section 3.09(a) does not require the listing of any Contract solely between or among the Company or any one or more of its wholly-owned Subsidiaries;, on the one hand (other than any Contracts with OpCo Finance, PRO LLC, the EIK or their respective Subsidiaries after giving effect to the Contemplated Transactions), and one or more of the wholly-owned Subsidiaries of the Company, on the other hand, or any Lease (which Leases are addressed in Section 3.07).
(gb) any contract or agreement that subjects Prior to the date hereof, the Company has provided to the Purchaser, or any have provided the Purchaser access through an electronic dataroom to, a true, correct and complete copy of its Subsidiaries to restrictions on all Company Contracts, together with all material amendments, waivers or other changes thereto, as in effect as of the competitive conduct of their businesses or prohibits or otherwise restricts the date hereof. There are no oral Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;Contracts.
(hc) any joint ventureExcept as set forth on Schedule 3.09(c), partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(ia) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure ScheduleContracts are valid, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedulebinding, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) and enforceable in all material respects by the Company and its Subsidiaries against the parties thereto in accordance with their respective terms, (b) to the Company’s Knowledge, no party thereto has asserted that any such Company Contract is invalid or applicable Subsidiaryunenforceable, and (c) to the Company’s Knowledge, no party has given written notice of any intent to amend or terminate any Company Contract or of any material dispute with respect to any Company Contract. Except as set forth on Schedule 3.09(c), neither the case may be, Company nor any of its Subsidiaries that is party to a Company Contract is in material breach or default thereunder and, to the knowledge of Company’s Knowledge, no other party to any Company Contract is in material breach or default thereunder, and to the Company’s Knowledge, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred that (with or condition exists that, with the giving of without notice, the passage lapse of time, time or both, ) would constitute a material breach or default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Griffin-American Healthcare REIT III, Inc.), Equity Purchase Agreement (NorthStar Healthcare Income, Inc.)
Contracts and Commitments. (a) Except as set forth in on Schedule 5.10(a), as of the date hereof, neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following typeany:
(ai) any loan collective bargaining agreement or other employee representational agreement, origination agreementother than as described in Section 5.19 or Schedule 5.19;
(ii) written bonus, indenturepension, credit facilityprofit sharing, securitization agreementretirement or other form of deferred compensation plan, mortgageother than as described in Section 5.13 or the Disclosure Schedules relating thereto and other than with regard to (x) discretionary bonuses to non-executive employees which are not in excess of $50,000 annually in any individual case, security agreement(y) sales commissions or (z) Sales Bonus Payments;
(iii) stock purchase, pledge agreementstock option or similar plan, deed other than as described in Schedule 5.04;
(iv) contract for the employment or engagement of trustany officer, bond, note, guaranty, surety, trust agreement and/or individual employee or other person (including any consultant or independent contractor) providing for fixed compensation in excess of $150,000 per annum or any bonus in excess of $50,000 per annum;
(v) agreement or instrument indenture relating to (i) the borrowing of money or obtaining extensions of credit by the Company to mortgaging, pledging or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit otherwise placing a Lien (other than student loansa Permitted Lien) by on any portion of the Company Company's or any of its Subsidiaries' assets;
(bvi) guaranty of any obligation for borrowed money;
(vii) lease or agreement pursuant to under which it is lessee of, or holds or operates any personal property owned by any other party, for which the Company annual rental exceeds $250,000;
(viii) lease or agreement under which it is lessee of, or holds or operates any real property owned by any other party;
(ix) lease or agreement under which it is lessor of its Subsidiaries or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $175,000;
(x) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has purchased, generated or sold student loans a selling price in excess of Five Million Dollars $250,000 ($5,000,000) other than purchase orders entered into in principal amount;
(c) any agreement relating to the extension ordinary course of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000business);
(fxi) any agreement contract or group of related contracts with the same party for the lease sale of real property by products or services under which the Company undelivered balance of such products or any services has a sales price in excess of its Subsidiaries;
$250,000 (g) any contract or agreement that subjects other than purchase orders entered into in the Company or any ordinary course of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transactionbusiness);
(jxii) any contract relating in whole or in part to management agreements for the licensing to or from the Company or any of its Subsidiaries management of any material Intellectual Property Right (as defined in Section 3.19(c))golf course or golf club;
(kxiii) any contract except for transactions related to financing arrangements, management contracts, lease agreements, the acquisition or agreement with any Governmental Authority;
(l) any material salesdisposition of real property, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedulegolf course, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, andgolf clubs, to the knowledge of the Company, all other parties to contract that provide for the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default indemnification by the Company or applicable Subsidiary, as its Subsidiaries of any Person outside the case may be, or, to the knowledge ordinary course of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer business or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent assumption of any counterparty under, Tax or environmental liability of any Person;
(Exiv) otherwise adversely affect any of contract that limits the rights ability of the Company or any Subsidiary underto compete in any line of business or with any Person or in any geographic area or during any period of time;
(xv) contract for capital expenditures or acquisition or construction of fixed assets for or in respect of any individual parcel of real property involving annual payments in excess of $250,000 or aggregate payments at any time in excess of $250,000, but excluding any contract which is expressly reflected or reserved for on the Latest Balance Sheet; or
(xvi) contract relating to a joint venture, partnership or similar arrangement involving the sharing of profits, losses, costs or liabilities by the Company or any Subsidiary with any other Person.
(b) Buyer has been given access to a true and correct copy of all written contracts which are referred to on Schedule 5.10(a), together with all amendments, waivers or other changes thereto. Xxx Xxxxxx does not have an employment agreement (which is not expired or terminated in connection with the Closing) and is not entitled to severance upon termination of his employment whether in connection with a change of control or otherwise.
(c) As of the date hereof, (i) neither the Company nor any of its Subsidiaries is in material default under any contract required to be listed on Schedule 5.10(a) (each, a "Material Contract" and, collectively, the "Material Contracts"), and (ii) except as set forth on Schedule 5.10(c)(ii) to the Company's knowledge, the other party to each of the Material Contracts is not in material default thereunder. For the avoidance of doubt, Material Contracts do not include any Membership Document. No representations with respect to the Membership Documents are made herein except as set forth in Section 5.21.
Appears in 1 contract
Samples: Equity Purchase Agreement (ClubCorp Holdings, Inc.)
Contracts and Commitments. (a) Except as set forth in on the attached Schedule 3.12, neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreement, contract, commitment written or other written instrument of the following typeoral:
(ai) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any loan agreementbonuses or other remuneration and whether in cash or otherwise), origination agreementto employees, indentureformer employees or consultants, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other or any collective bargaining agreement or instrument any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis or relating to loans to officers, directors or Affiliates;
(iiii) the borrowing of money or obtaining extensions of credit by contract under which the Company or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $10,000;
(iiiv) the loaning of agreement or indenture relating to borrowed money or granting extensions other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or group of credit (other than student loans) by assets of the Company or any of its Subsidiaries;
(bv) any Guaranty;
(vi) lease or agreement pursuant to under which the Company or any of its Subsidiaries has purchasedis lessee of or holds or operates any personal property owned by any other party, generated except for any lease of personal property under which the aggregate annual rental payments do not exceed $25,000 and other than leases or sold student loans arrangements for Intellectual Property;
(vii) lease or agreement under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate any personal property owned or controlled the Company or any of its Subsidiaries and other than leases or arrangements for Intellectual Property;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of Five Million Dollars ($5,000,000) 100,000 annually or $10,000 per month, other than purchase and sales orders incurred in principal amountthe ordinary course of business other than contracts disclosed elsewhere on the Disclosure Schedules;
(cix) any assignment, license, indemnification or other agreement relating with respect to the extension of insurance or the providing use of any guarantee, pursuant intangible property (including any Intellectual Property Rights) granted or made to the Higher Education Act Company or any of 1965its Subsidiaries, as amended (or granted or made by the “Higher Education Act”)Company or any of its Subsidiaries to third parties, by except licenses to the Company or any federal agency of its Subsidiaries of commercially available, non-customized software used solely for the Company’s and its Subsidiaries’ own internal use for an aggregate fee, royalty or other entity consideration for any such software or group of related software licenses of no more than $10,000 or other non-material assignments, licenses, indemnifications or agreements granted or made by the principal Company or any of and/or accrued interest on its Subsidiaries to third parties.
(x) warranty agreement with respect to its services rendered or its products sold or leased;
(xi) sales, distribution, manufacturing, supply or franchise agreement;
(xii) agreement with a term of more than six months which is not terminable by the Company or any student loan extended of its Subsidiaries upon less than 30 days’ notice without penalty and involves a consideration in excess of $100,000 annually or $10,000 per month;
(xiii) contract or agreement regarding any material indemnification provided to or by the Company or any of its Subsidiaries, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements (other than contracts disclosed elsewhere on the Disclosure Schedules which disclosure notes the existence of such indemnification);
(dxiv) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xv) any other agreement by which is material to its operations and business prospects or involves a consideration in excess of $100,000 annually (other than contracts disclosed elsewhere on the Disclosure Schedules).
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 3.12 are valid, binding and enforceable in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, except to the extent set forth on Schedule 3.3. Except as set forth on Schedule 3.12, (i) the Company or any of and its Subsidiaries services student loans for have performed in all material respects all obligations required to be performed by them and are not in default under, or in breach of, nor in receipt of any third party claim of default or by which breach under, any third party services student loans such contract set forth or required to be set forth on Schedule 3.12, or under any such contract that would otherwise be required to be set forth on Schedule 3.12, but for the Company fact that such contract is set forth elsewhere on the Disclosure Schedules; (ii) no event has occurred which with the passage of time or any the giving of its Subsidiaries;
(e) any open purchase order notice or contract for capital expenditures both would result in a default, breach or event of noncompliance by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) under any agreement contract set forth or required to set forth on Schedule 3.12 or under any contract that would otherwise be required to be set forth on Schedule 3.12, but for the lease of real property by fact that such contract is set forth elsewhere on the Disclosure Schedules; (iii) neither the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or nor any of its Subsidiaries to restrictions on the competitive conduct has any present expectation or intention of their businesses or prohibits or otherwise restricts not fully performing all such obligations; and (iv) the Company does not have Knowledge of any breach or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving anticipated breach by the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating other parties to any such pending transaction);contract set forth or required to be set forth on Schedule 3.12 or under any contract that would otherwise be required to be set forth on Schedule 3.12, but for the fact that such contract is set forth elsewhere on the Disclosure Schedules. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the agreements and instruments set forth or required to be set forth on Schedule 3.12 or of any of the agreements or instruments that would otherwise be required to be set forth on Schedule 3.12, but for the fact that such agreements or instruments are set forth elsewhere on the Disclosure Schedules.
(jc) any contract relating in whole or in part to the licensing to or from the Company or any Buyer has been supplied with a true and correct copy of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force written instruments, plans, contracts and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge agreements and an accurate description of each of the Companyoral arrangements, contracts and agreements which are referred to on the attached Schedule 3.12, together with all amendments, waivers or other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractchanges thereto.
Appears in 1 contract
Samples: Stock Contribution and Purchase Agreement (Maxum Petroleum Holdings, Inc.)
Contracts and Commitments. (a) Except as set forth on Schedule 3.09(a), as of the date hereof, neither the Company nor any of its Subsidiaries is party to or bound by any written:
(i) (A) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of their assets, or (B) Contract under which it has advanced or loaned any other Person that is not an Affiliate of the Company, amounts exceeding, in the Company SEC Reports or aggregate, $25,000,000;
(ii) guaranty of any obligation made on Section 3.10 behalf of the Company Disclosure Schedule, none of any Person other than the Company or any of its Subsidiaries or other material guaranty in amounts exceeding, in the aggregate, $25,000,000;
(iii) settlement, conciliation, or similar agreement with any Governmental Entity or pursuant to which the Company or any of its Subsidiaries will be required, after the date of this Agreement, to satisfy any material monetary or non-monetary obligations;
(iv) lease or agreement under which it is a lessee or lessor of, or holds or operates any material personal property owned by any other party, or permits any third party to hold or bound operate any material personal property owned or controlled by any agreementit, contract, commitment or other written instrument of in each case for which the following type:annual rental exceeds $5,000,000;
(av) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument agreements relating to (i) the borrowing of money any pending or obtaining extensions of credit completed material business acquisition by the Company or any of its Subsidiaries within the last three (3) years or pursuant to which the Company or any of its Subsidiaries has remaining material obligations or liabilities;
(iivi) joint venture, partnership or similar agreement or other similar arrangement with a third party that is material to the business of the Company and its Subsidiaries, taken as a whole;
(vii) Contract pursuant to which (A) the loaning Company or any of money its Subsidiaries are licensed or granting extensions otherwise permitted by a third party to use any Intellectual Property material to the business of credit the Company and its Subsidiaries, taken as a whole, which is owned by such third party (other than student loansnon-exclusive licenses to the Company or any of its Subsidiaries of commercially available, unmodified “off the shelf” software where one-time or aggregate annual fees, royalties or other consideration (including maintenance fees) for any such software or group of related software licenses is no more than $2,000,000), or (B) any third party is licensed or otherwise permitted to use any material Intellectual Property owned by the Company or any of its Subsidiaries;
(bviii) any agreement pursuant to Contract which expressly limits or prohibits the Company or any of its Subsidiaries has purchased, generated from competing or sold student loans freely engaging in excess of Five Million Dollars ($5,000,000) business anywhere in principal amountthe world;
(cix) any agreement relating With respect to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended material Intellectual Property owned by the Company or any of its Subsidiaries;
, any (dA) any agreement by which Contract that limits the freedom or right of the Company or any of its Subsidiaries services student loans for to use such Intellectual Property, (B) Contract granting any exclusive rights to any third party with respect to such Intellectual Property, (C) settlement Contract, consent-to-use or by which any third party services student loans co-existence agreement or (D) Contract providing for the assignment, ownership, creation or development of such Intellectual Property (excluding employee and independent contractor agreements on the standard form of the Company or any of its SubsidiariesSubsidiaries which are entered into in the ordinary course of business);
(ex) Contract with any Governmental Entity where (A) the Governmental Entity is the customer and (B) such Contract involves annual payments in excess of $5,000,000;
(xi) collective bargaining agreement, neutrality agreement, card check agreement, or any other Contract with any trade union, works council or other labor organization affecting any employee of the Company;
(xii) Contract with each (A) Company Significant Customer and (B) Company Significant Supplier;
(xiii) Contract for the provision of services to the Company or any of its Subsidiaries by any employee or individual independent contractor on a full-time, part-time or consulting basis and providing for annual compensation in excess of $500,000; or
(xiv) any open purchase order other Contract which involves consideration in excess of $80,000,000.
(b) The Company has delivered or contract for capital expenditures made available to the Purchaser or its Representatives true and correct copies (in all material respects) of all written Contracts and plans that are required to be set forth on Schedule 3.09(a) (collectively, the “Company Material Contracts”), together with all material amendments, waivers or other changes thereto (but subject, in each case, to redactions of pricing and other competitively sensitive information to the extent required by Antitrust Law).
(c) Except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, and except as set forth on Schedule 3.09(c), (i) each of the Company and its Subsidiaries has performed in all material respects all material obligations required to be performed by it and is not in material default under, in material breach of, nor in receipt of any written Claim of material default or material breach under, any Company Material Contract, (ii) no event has occurred which, with the passage of time or the giving of notice or both, would result in a material default or material breach by the Company or any of its Subsidiaries under any Company Material Contract, and (iii) as of the date hereof, to the knowledge of the Company, there is no material breach or threatened material breach by the other parties to any Company Material Contract. Except as would not reasonably be expected to be, individually or in excess the aggregate, material to the Company and its Subsidiaries, taken as a whole, and except for those that have terminated or expired in accordance with their terms, all of One Million Dollars ($1,000,000);
(f) any agreement for the lease Company Material Contracts are valid and in full force and effect and constitute legal, valid and binding obligations of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects such Subsidiary, and are enforceable against the Company or any of its Subsidiaries to restrictions on the competitive conduct of such Subsidiary in accordance with their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customersrespective terms (except as enforceability may be limited by applicable bankruptcy, vendors or employees of third parties;
(h) any joint ventureinsolvency, partnershipfraudulent conveyance, royalty or reorganization, moratorium and other similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries Laws affecting creditors’ rights generally and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiarysubject, as the case may beto enforceability, to general principles of equity), and, to the knowledge of the Company, all constitute legal, valid and binding obligations of the other party or parties to the Material Contracts havethereto, enforceable against such party or parties in all material respectsaccordance with their respective terms (except as enforceability may be limited by applicable bankruptcy, performed their obligations insolvency, fraudulent conveyance, reorganization, moratorium and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiaryother similar Laws affecting creditors’ rights generally and subject, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, orto enforceability, to the knowledge general principles of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractequity).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tenneco Inc)
Contracts and Commitments. Except (a) Schedule 3.13(a) sets forth a list as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none date of this Agreement of each of the Company following Contracts to which Voyage Holdings or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company Assets are bound (such Contracts, whether or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000not set forth on Schedule 3.13(a);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”):
(i) any employment Contract or services agreement with any officer, independent contractor, or employee of Voyage Holdings or its Subsidiaries that provides for payments by Voyage Holdings or its Subsidiaries in excess of $175,000 per annum and is not terminable by Voyage Holdings or its Subsidiaries upon notice of ninety (90) days or less for a cost of less than $175,000;
(ii) any collective bargaining agreement or other agreement with any labor union, works council, labor organization or employee representative;
(iii) any Contract with any officer, employee, consultant or independent contractor with respect to change of control;
(iv) any Contract containing any covenant that limits or restricts the freedom of Voyage Holdings or its Subsidiaries (or, after the Closing, that purports to so limit or restrict Buyer or any of its Affiliates) to (A) sell any products or services to any other Person or in any geographic region, (B) engage or compete in any line of business or (C) obtain products or services from any Person;
(v) any lease or similar agreement under which (A) Voyage Holdings or its Subsidiaries is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third party or (B) Voyage Holdings or its Subsidiaries is a lessor or sublessor of, or makes available for use by any third party, any tangible personal property owned or leased by Voyage Holdings or its Subsidiaries, in each case which provides for future payments by Voyage Holdings or its Subsidiaries in excess of $500,000 per annum and is not terminable by Voyage Holdings or its Subsidiaries upon notice of ninety (90) days or less for a cost of less than $500,000;
(vi) any Contract under which Voyage Holdings or its Subsidiaries has borrowed any money or issued any note, indenture or other evidence of Indebtedness or guaranteed Indebtedness of others, in each case having an outstanding principal amount in excess of $250,000;
(vii) any settlement, conciliation or similar Contract with any Governmental Authority or pursuant to which Voyage Holdings or its Subsidiaries will have any monetary obligation in excess of $250,000 or any material non-monetary obligation after the date of this Agreement;
(viii) any Contract (A) providing for Voyage Holdings or its Subsidiaries to be an exclusive or preferred provider of any product or service to any Person or that otherwise involves the granting by any Person to Voyage Holdings or its Subsidiaries of exclusive or preferred rights of any kind, (B) granting to any person a right of first refusal or right of first offer on the sale of any part of Voyage Holdings or its Subsidiaries’ assets or (C) containing a provision of the type commonly referred to as “most favored nation” provision;
(ix) any Contract requiring any capital commitment or capital expenditure (or series of capital commitments or expenditures) by Voyage Holdings or its Subsidiaries in an amount in excess of $75,000 individually or $150,000 in the aggregate;
(x) any Contract providing for Voyage Holdings or its Subsidiaries to make any material capital contribution to, or other investment in, any Person; or
(xi) any other Contract, lease or license, in each case not included in clauses (i)-(x) foregoing or set forth on Schedule 3.13(a), to which Voyage Holdings or its Subsidiaries is a party or by or to which any of its assets are bound or subject, which provides for future payments by or to Voyage Holdings or its Subsidiaries in excess of $500,000 per annum and is not terminable by Voyage Holdings or its Subsidiaries upon notice of ninety (90) days or less for a cost of less than $500,000 (other than warranty obligations in the Ordinary Course of Business, purchase orders, and Leases).
(b) Voyage Holdings has delivered to, or made available for inspection by, Buyer a copy of each Material Contract (including all exhibits thereto and all amendments, waiver or other changes thereto existing on the date hereof). Except as disclosed in Section 3.10 on Schedule 3.13(b), each of Voyage Holdings and its Subsidiaries and, to the Company Disclosure Schedule Knowledge of Voyage Holdings, each other party thereto (i) each has performed in all material respects all obligations required to be performed by it as of the date hereof under the Material Contracts to which it is a party, and (ii) is not (with or without the lapse of time or the giving of notice, or both) in material breach or default thereunder. Each of the Material Contracts is in full force all material respects a valid and effect, (ii) the Company or applicable Subsidiarylegally binding obligation of Voyage Holdings and its Subsidiaries, as the case applicable, enforceable in accordance with its terms and conditions (except as such enforceability may bebe limited by bankruptcy, andinsolvency, to the knowledge of the Companyreorganization, all other parties to the Material Contracts havemoratorium or similar Laws affecting creditors’ rights generally or by general equitable principles). Except as set forth on Schedule 3.13(b), in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default underVoyage Holdings has received no notice of termination or non-renewal or material modification of any Material Contract, and (B) give rise during the past twelve (12) months, there have been no material disputes with respect to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 1 contract
Samples: Stock and Unit Purchase Agreement (Simply Good Foods Co)
Contracts and Commitments. (a) Except as set forth in on the attached Contracts Schedule, neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or nor bound by any agreement, contract, commitment or other written instrument of the following typeany:
(ai) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money any acquisition or obtaining extensions of credit disposition by the Company or such Subsidiary of any assets or properties or the operating business or capital stock of its Subsidiaries any other Person, or (ii) relating to any such prior acquisition to the loaning of money or granting extensions of credit (other than student loans) by extent the Company or any of its SubsidiariesSubsidiary has any remaining right, obligation or liability (whether fixed or contingent) thereunder, within the last three years;
(bii) collective bargaining agreement or contract with any agreement pursuant to which labor union or trade organization;
(iii) contract establishing any joint ventures, partnerships or similar arrangements;
(iv) contract reflecting a settlement of any threatened or pending legal proceedings entered into within the last three years;
(v) contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries has purchasedto compete in any line of business or to conduct business with any Person in any geographical area, generated (B) containing a most favored nation or sold student loans similar provision in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing favor of any guaranteecustomer or counterparty, pursuant to the Higher Education Act of 1965, as amended or (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(dC) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects obligating the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits purchase or otherwise restricts the Company obtain any product or service exclusively from a single party or sell any of its Subsidiaries from soliciting customers, vendors product or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third service exclusively to a single party;
(ivi) any business acquisition Intellectual Property license or divestiture agreement (or any letter similar arrangement material to the operation of intentthe Company and its Subsidiaries, term sheet or draft agreement relating except licenses to any such pending transaction)software that is generally commercially available;
(jvii) any contract relating in whole stock purchase, stock option or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c))similar plan;
(kviii) written contract for the employment of any contract officer, individual employee or agreement with any Governmental Authorityother person on a full-time or consulting basis providing for fixed compensation in excess of $100,000 per annum;
(lix) agreement or indenture relating to the borrowing of money or to placing a Lien on any material sales, marketing portion of the Company’s or advertising agreementany Subsidiary’s assets;
(mx) guaranty of any employment contractobligation for borrowed money;
(nxi) lease or agreement under which it is lessee of, or holds or operates any student loan guaranty or surety agency agreement; orpersonal property owned by any other party, for which the annual rental exceeds $100,000;
(oxii) lease or agreement under which it is lessor of or permits any other contractthird party to hold or operate any property, agreement real or commitment (i) with respect to personal, for which the aggregate amount that could reasonably be expected to be paid annual rental exceeds $250,000;
(xiii) contract or group of related contracts with the same party for the purchase by the Company or any Subsidiary of its Subsidiaries would exceed One Million Dollars (products or services, under which the undelivered balance of such products and services has a selling price in excess of $1,000,000) in any twelve (12)-month period following 500,000 as of the date hereof; or
(xiv) contract or group of this Agreement, or (ii) that is otherwise material to related contracts with the same party for the sale by the Company or any Subsidiary of its Subsidiaries. The Company products or services under which the undelivered balance of such products or services has made available a sales price in excess of $1,000,000 as of the date hereof.
(b) Parent and Merger Sub have been given access to Parent copies a true and correct copy of all written contracts and commitments listed in Section 3.10 of which are referred to on the Contracts Schedule, together with all material amendments, waivers or other changes thereto.
(i) Neither the Company Disclosure Schedulenor any Subsidiary is in default under any contract listed, summaries of all oral contracts and commitments listed in Section 3.10 of or required to be listed, on the Company Disclosure ScheduleContracts Schedule (each, and all modifications and supplements thereto (a “Material Contract” and, collectively, the “Material Contracts”). Except ) and (ii) to the Company’s Knowledge, as disclosed in Section 3.10 of the Company Disclosure Schedule (i) date hereof, the other party to each of the Material Contracts is not in default thereunder. Except as listed on the Contracts Schedule, each Material Contract is legal and in full force and effecteffect and is valid, (ii) binding and enforceable against the Company or applicable Subsidiary, as the case may be, and, to the knowledge Company’s Knowledge, the other party thereto. As of the Companydate hereof, all other parties no party to any Material Contract has given any written notice, or to the Material Contracts haveCompany’s Knowledge, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice (whether or not written) of default termination or cancellation of any Material Contract or that it intends to seek to terminate or cancel any Material Contract (whether as a result of the transactions contemplated hereby or otherwise).
(d) Except as set forth on the Authorization Schedule, there are no “change of control” or similar provisions or any obligations arising under any of the Material ContractsContract which are created, (iv) no event has occurred accelerated or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default triggered by the Company execution, delivery or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor or the consummation of the Offer Merger or the other transactions contemplated hereby, and (ii) none of the execution, delivery or performance of this Agreement or the consummation of the Merger shall or the other transactions contemplated herby will, under the terms, conditions or provisions of any Company Material Contract (A) constitute a default underresult in any material increase or decrease in any payment or change in any material term or condition, (B) give rise to any right of amendment, termination, cancellation rights underor acceleration of any right or obligation or to a loss of benefit, or (C) require the giving of notice grant any repayment or repurchase rights to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractPerson.
Appears in 1 contract
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company (a) The Disclosure Schedule, none of under the Company or any of its Subsidiaries is a party to or bound by any agreementcaption referencing this ss.3.13, contract, commitment or other written instrument of lists the following type:
(a) any loan agreementcontracts, origination agreementcommitments and/or binding understandings, indenturewhether oral or written, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any Subsidiary is a party, which are currently in effect, and which relate to the operation of its Subsidiaries has purchasedthe Company or any Subsidiary's business (collectively, generated "Material Contracts"):
(i) all employment or sold student loans consulting agreements (other than hourly employment arrangements), any employee benefit plan or a union or collective bargaining agreement;
(ii) all bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described under the caption referencing ss.3.17 in the Disclosure Schedule and other than discretionary bonuses for hourly employees;
(iii) all distributor, dealer, manufacturer's representative, sales agency or advertising agency contracts obligating the Company or a Subsidiary to make annual payments in excess of Five Million Dollars ($5,000,000) in principal amount25,000;
(civ) all contracts involving annual payments in excess of $25,000 terminable by the other party thereto upon a change of control of the Company or upon the failure of the Company to satisfy financial or performance criteria specified in such contract as provided therein;
(v) all leases of personal property involving annual payments in excess of $50,000 (to the extent not otherwise disclosed in the Disclosure Schedule under the caption referencing ss.3.10 hereof);
(vi) all contracts between or among the Company, any agreement director, officer or employee thereof or any member of his or her family or any entity affiliated with any such person relating in any way to the Company (to the extent not otherwise disclosed in the Disclosure Schedule under the caption referencing ss.3.19 hereof);
(vii) all contracts, agreements or understandings relating to the extension voting of insurance the Company Shares or the providing election of directors of the Company;
(viii) all contracts relating to the performance and payment of any guarantee, pursuant surety bond or letter of credit involving amounts in excess of $25,000 required to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended be maintained by the Company or any of its SubsidiariesSubsidiary;
(dix) all confidentiality or non-disclosure agreements material to the operations of the Company's or any agreement by which Subsidiary's business;
(x) all stock purchase or stock option plans;
(xi) all agreements or indentures relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Security Interest in amount in excess of $25,000 on any of the assets of the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its SubsidiariesSubsidiary;
(exii) all guaranties of any open obligation of any Person (other than inter-company guaranties of the Leases) for borrowed money or otherwise;
(xiii) all contracts or group of related contracts with the same party for the purchase order of products or contract for capital expenditures services under which the undelivered balance of such products or services is in excess of $50,000;
(xiv) all contracts or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof and involving aggregate annual payments in excess of $50,000, not terminable by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000)Subsidiary on 30 days' or less notice without penalty;
(fxv) all contracts which prohibit the Company or any agreement Subsidiary from freely engaging in business anywhere in the world;
(xvi) all license agreements or agreements providing for the lease payment or receipt of real property royalties or other compensation by the Company or any Subsidiary from or to any Person (other than inter-company payments of its Subsidiariesroyalties) in connection with the intellectual property rights listed under the caption referencing ss.3.14 hereof in the Disclosure Schedule;
(gxvii) any contract all contracts or agreement that subjects the Company or any commitments for capital expenditures in excess of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties$25,000;
(hxviii) all agreements for the sale of any joint venture, partnership, royalty or similar agreement capital asset involving the sharing an amount in excess of profits and/or expenses between the Company or any of its Subsidiaries and any third party;$25,000; and
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(oxix) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company business, financial condition or any results of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights operation of the Company or any Subsidiary underor was not entered into in the Ordinary Course of Business involving annual payments in excess of $50,000.
(b) Except as disclosed in the Disclosure Schedule under the caption referencing this Section 3.13(b) and as provided for in ss.7.01(m), the Company and its Subsidiaries have performed in all material respects all obligations required to be performed by them under the Material Contracts required to be disclosed in the Disclosure Schedule under the caption referencing this ss.3.13 and is not in receipt of any written claim of default under any Material ContractContract required to be disclosed under such caption. Except as disclosed in the Disclosure Schedule referencing this Section 3.13, the Company and its Subsidiaries have no present expectation or intention of not fully performing any material obligation pursuant to any Material Contract required to be disclosed under such caption. The Company has no Knowledge of any material breach or anticipated material breach by any other party to any Material Contract required to be disclosed under such caption.
(c) The Company will supply a true and correct copy of each written Material Contract and a written description of each oral Material Contract referred to under the caption referencing this Section 3.13(c) in the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on the Contracts Schedule, neither the Company nor any of its Subsidiaries is a party to any:
(i) collective bargaining or similar agreement;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in the Company SEC Reports Employee Benefits Schedule relating thereto;
(iii) contract or other arrangement with respect to the purchase or sale of any Equity Interest or providing for the acquisition of any business or significant assets of any other Person (whether by way of merger, combination, stock purchase, asset purchase or other similar transaction) under which there are any remaining obligations on Section 3.10 the part of any party thereto;
(iv) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis providing for base compensation in excess of one hundred and seventy-five thousand dollars ($175,000) per annum;
(v) agreement or indenture relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company Disclosure Scheduleor any of its Subsidiaries;
(vi) agreement that prohibits the payment of dividends or distributions in respect of any Equity Interest of the Company or any of its Subsidiaries, none prohibits the pledging of any Equity Interest of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument prohibits the issuance of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) guarantees by the Company or any of its Subsidiaries;
(bvii) contract or agreement that includes a performance or other guarantee obligation (other than any product warranty issued in the ordinary course of business) (x) with respect to the purported benefits of the product or service that is the subject thereof to the customer and (y) that, if not satisfied, would result in a material price adjustment under the terms of such contract;
(viii) lease or agreement under which it is (A) lessee of, or holds or operates any personal property owned by any other party or (B) lessor of or permits any third-party to hold or operate any property, real or personal, in each case for which the annual rental exceeds seventy-five thousand dollars ($75,000);
(ix) other than purchase orders entered into in the ordinary course of business, contract or group of related contracts with any supplier required to be listed on the Customers and Suppliers Schedule;
(x) other than purchase orders entered into in the ordinary course of business, contract or group of related contracts with any customer required to be listed on the Customers and Suppliers Schedule;
(xi) other than contracts with customers and suppliers entered into in the ordinary course of business, contract or group of related contracts involving payments (to or from the Company and/or any of its Subsidiaries) of more than three hundred thousand dollars ($300,000) in any twelve (12)-month period;
(xii) contract which prohibits or restricts the Company or any of its Subsidiaries (or, following the Closing, would prohibit or restrict the Purchaser, the Surviving Entity or any of their respective Affiliates) from freely engaging in business anywhere in the world, including any contract that (A) materially restricts the Company or any of its Subsidiary from engaging in any material line of business, developing, marketing or distributing products or services or obligates the Company or any of its Subsidiary not to compete with another Person or in any geographic area or during any period of time or that would otherwise limit the freedom of Purchaser or its Affiliates (including the Surviving Entity) from engaging in any line of business after the Effective Time, (B) contains exclusivity obligations or restrictions binding on the Company or any of its Subsidiaries or that would be binding on the Purchaser or any of its Affiliates (including the Surviving Entity) after the Effective Time or (C) prohibits the Company or any of its Subsidiaries from hiring or soliciting for hire any employee or group of employees (other than, in the case of this clause (C), contracts entered into in the ordinary course of business);
(xiii) contract containing most favored nation pricing provisions or granting to any Person a right of first refusal, a right of first offer or an option to purchase, acquire, sell or dispose of any their respective assets (other than inventory in the ordinary course of business) valued at an amount in excess of fifty thousand dollars ($50,000);
(xiv) agreement that contains any material on-going indemnification rights or obligations, or credit support relating to such indemnification rights or obligations, other than any of such indemnification rights or obligations incurred in the ordinary course of business;
(xv) settlement agreement for an amount in excess of fifty thousand dollars ($50,000) entered into within the past three (3) years;
(xvi) agreement with any Governmental Body, including any agreement pursuant that is (A) a settlement or similar agreement with any Governmental Body, or (B) an Order or consent of a Governmental Body to which the Company or any of its Subsidiaries has purchasedis subject, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures involving material performance by the Company or any of its Subsidiaries in excess after the date of One Million Dollars ($1,000,000)this Agreement;
(fxvii) any Intellectual Property Agreements, except as set forth on the Intellectual Property Schedule;
(xviii) other agreement for affecting the lease of real property by the Company Company’s or any of its Subsidiaries;
(g) any contract ’ ability to use or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of disclose any material Intellectual Property Right Property, in each case, other than (as defined in Section 3.19(c));
(kA) any contract or agreement with any Governmental Authority;
(l) any material saleslicenses for commercially available, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid off-the-shelf software used by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (iiB) that is otherwise material to agreements entered into by the Company or any of its Subsidiaries. Subsidiaries with customers in the ordinary course of business;
(xix) partnership, joint venture, limited liability company or other similar agreement or arrangement (including any agreement providing for joint research, development or marketing); and
(xx) contracts relating to the acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person or material line of business entered into during the past three (3) years or the future acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person or material line of business.
(b) The Company has made available to Parent the Purchaser true and correct copies of each contract listed on the Contracts Schedule, the Intellectual Property Schedule and the Employee Benefits Schedule, in each case together with all written contracts and commitments listed in Section 3.10 amendments, modifications or supplements thereto. Each of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of or required to be listed on the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Contracts Schedule (i) each of the Material Contracts is in full force and effect, (ii) and is the legal, valid and binding obligation of and enforceable against the Company or applicable Subsidiary, as any Subsidiary of the case may beCompany which is party thereto, and, to the knowledge of the Company, all of and against the other parties to thereto in accordance with its terms. Except as set forth on the Material Contracts haveSchedule, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) neither the Company or applicable Subsidiary, nor any Subsidiary of the Company (as the case may be, has not given or received any notice of applicable) is in material default under any contract listed on the Contracts Schedule, and, to the knowledge of the Material ContractsCompany, (iv) the other party to each of the contracts listed on the Contracts Schedule is not in material default thereunder. Except as set forth on the Contracts Schedule, no event has occurred that with the lapse of time or condition exists that, with the giving of notice, the passage of time, notice or both, both would constitute a material breach or default by on the part of the Company, or any Subsidiary of the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of contract listed on the Material ContractsContracts Schedule. The Company and its Subsidiaries have not, (v) neither the Company or applicable Subsidiary, as the case may be, nor, and to the knowledge of the Company, any no other party to any contract listed on the Contracts Schedule has waived, (i) exercised any termination rights with respect to any contract listed on the Contracts Schedule or extended the time for the performance of, (ii) given written notice of any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice dispute with respect to any third party under, (D) require contract listed on the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractContracts Schedule.
Appears in 1 contract
Samples: Merger Agreement (Hubbell Inc)
Contracts and Commitments. Except (n) Section 4.09 of the Disclosure Schedules sets forth a true and complete list of each of the following contracts and other agreements to which the Company or its Subsidiary is a party or to which any of the assets of the Company, its Subsidiary or the Business are subject:
(i) any collective bargaining agreement, as set forth in Section 4.16 of the Company SEC Reports Disclosure Schedules;
(ii) any written bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.13 or the Disclosure Schedules relating thereto;
(iii) any stock purchase, stock option or similar plan;
(iv) any contract for the employment of any officer, employee or other individual on Section 3.10 a full-time or consulting basis providing for fixed compensation in excess of $100,000 per annum;
(v) any agreement or indenture relating to the borrowing of money, whether as borrower or lender, or to mortgaging, pledging or otherwise placing a Lien other than a Permitted Lien on any assets of the Company Disclosure Scheduleand its Subsidiary;
(vi) any guaranty of any obligation for borrowed money or other material guaranty;
(vii) any lease or other agreement under which it is lessee of, none or holds or operates any tangible personal property owned by any other party, for which the annual rental exceeds $150,000;
(viii) any lease or other agreement under which it is lessor of the Company or permits any of its Subsidiaries is a third party to hold or bound by operate any agreement, contract, commitment or other written instrument of tangible personal property for which the following type:annual rental exceeds $150,000;
(aix) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed contract or group of trust, bond, note, guaranty, surety, trust agreement and/or other agreement related contracts with the same party for the purchase of products or instrument relating services (A) that requires annual payments to (i) the borrowing of money or obtaining extensions of credit be made by the Company or any its Subsidiary in excess of its Subsidiaries $150,000 or (iiB) the loaning of money or granting extensions of credit (other than student loans) that provided for annual payments by the Company or any its Subsidiary in excess of its Subsidiaries$150,000 during the trailing twelve (12)-month period ending on the date of the Latest Balance Sheet;
(bx) any agreement agreements relating to any completed business acquisition or disposition by the Company or its Subsidiary (whether by merger, sale of stock, sale of assets or otherwise) entered into on or after February 1, 2013 or pursuant to which the Company or its Subsidiary has any continuing material obligation or Liability;
(xi) any contract or group of its Subsidiaries has purchased, generated related contracts with a client or sold student loans customer for the sale of products or services that (A) requires annual payments in excess of Five Million Dollars $150,000 to be made by such client or customer to the Company or its Subsidiary or (B) provided for payments to the Company or its Subsidiary by such client or customer in excess of $5,000,000150,000 during the trailing twelve (12)-month period ending on the date of the Latest Balance Sheet, in each case of (A) and (B), other than purchase orders entered into in principal amountthe ordinary course of business;
(cxii) any license, royalty or other agreement relating to the extension of insurance or the providing use of any guaranteethird party Intellectual Property (other than licenses for commercially available software licensed for a one-time fee of, pursuant or that have annual fees of, $75,000 or less);
(xiii) any license, royalty or other agreement relating to the Higher Education Act of 1965, as amended (the “Higher Education Act”), use by any federal agency or other entity third party of the principal of and/or accrued interest on any student loan extended Intellectual Property owned by the Company or any its Subsidiary (other than non-exclusive licenses granted to customers in the ordinary course of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000business);
(fxiv) any agreement for the lease of real property by contract which prohibits the Company or its Subsidiary from (1) freely engaging or competing in any business anywhere in the world or (2) soliciting for employment or hiring any Person (other than non-disclosure agreements entered into in the ordinary course of its Subsidiariesbusiness);
(gxv) any contract or agreement that subjects requiring future capital expenditure obligations of the Company or its Subsidiary in excess of $150,000;
(xvi) any of its Subsidiaries contract with any independent contractor who provides services to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any its Subsidiary or the Business that provides for annualized compensation in excess of its Subsidiaries from soliciting customers, vendors $100,000 individually or employees of third parties$250,000 in the aggregate;
(hxvii) any joint venture, partnership, royalty partnership or other similar agreement or written arrangement involving co-investment or the sharing of profits and/or expenses revenues, profits, losses, costs or Liabilities between the Company or any of its Subsidiaries Subsidiary or otherwise involves the Business, on the one hand, and any a third partyparty on the other hand;
(ixviii) any business acquisition contract requiring the Company or divestiture agreement (or any letter its Subsidiary to pay royalties to a third party with respect to a product of intent, term sheet or draft agreement relating to any such pending transaction)the Business;
(jxix) any material warranty or guarantee with respect to a contractual performance that is an obligation of the Company or its Subsidiary or otherwise involves the Business, other than warranties or guarantees provided to its customers in the ordinary course of business;
(xx) any contract relating in whole or in part to the licensing to or from requiring the Company or its Subsidiary to indemnify and hold harmless any Person, other than those entered into in the ordinary course of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c))business;
(kxxi) any contract containing a requirement to deal exclusively with or grant exclusive rights or rights of first refusal to any customer, vendor, supplier, distributor, contractor or other party. (it being understood that, for purposes of this Section 4.09, all purchase orders or similar arrangements, as applicable, shall be deemed incorporated by reference with respect to any underlying master agreement, multi-year agreement with any Governmental Authority;
(l) any material sales, marketing or advertising similar agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or).
(o) any other contract, agreement or commitment (i) with With respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments each contract listed in Section 3.10 4.09 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto Schedules (collectively, the “Material Significant Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule , (i) each of the Material Contracts such Significant Contract is in full force and effect, (ii) effect and is a valid and binding contract or agreement of the Company or applicable and its Subsidiary, as the case may beapplicable, and, to the knowledge of the Company, all enforceable against the other parties thereto, in accordance with its terms, in each case, subject to the Material Contracts haveGeneral Enforceability Exceptions and (ii) neither the Company, its Subsidiary nor, to the Company’s knowledge, any other party to any such Significant Contract is in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company breach or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of timeviolation of, or bothdefault under, would constitute a default by the Company or applicable Subsidiary, as the case may be, orsuch Significant Contract and, to the knowledge of the Company, any other party under any no event has occurred that with or without notice or lapse of time or both would constitute a breach or default (whether by lapse of time or notice or both), except, in each case, as would not reasonably be expected to be, individually or in the Material Contractsaggregate, (v) neither material to the Company or applicable Subsidiary, its Subsidiary (taken as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractwhole).
Appears in 1 contract
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument (a) Schedule 3.11(a) lists all of the following type:
Contracts (a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”) to which either Seller (as such Contracts relate primarily to the Business) or Medegen is a party, which are currently in effect and have obligations remaining thereunder:
(i) all Contracts to make future capital expenditures or that provide for the future purchase of a Person, goods or services by Seller or Medegen from any one Person, other than Contracts that were entered into in the Ordinary Course for the purchase of inventory and involve an expenditure, individually or in the aggregate under such Contract by Seller or Medegen, as applicable, of less than $150,000;
(ii) all Contracts that provide for the future sale of products or services by Seller or Medegen, other than Contracts that were entered into in the Ordinary Course and provide for the sale of products or services with a value of less than $150,000;
(iii) all Contracts relating to Indebtedness of Seller (with respect to the Business) or Medegen that will not be repaid or released at or prior to the Closing;
(iv) all Contracts containing continuing delivery obligations with dealers, distributors or sales representatives in excess of $150,000;
(v) all employment, deferred compensation, severance, bonus, retirement, consulting, management services or non-competition agreements with any Business Employee, officer of Seller or Medegen or full-time consultant providing services to the Business or Medegen whose annual base salary or base wages or annual compensation is equal to an amount greater than $125,000;
(vi) all Contracts providing for any payments that are conditioned, in whole or in part, on a change of control of the Business or Medegen, or any of the transactions of the type contemplated hereby;
(vii) all collective bargaining Contracts, works council Contract, trade union Contracts, and other material Contracts with any union or labor organization to which Seller or Medegen is a party (each a “Collective Bargaining Agreement”);
(viii) all Contracts pursuant to which Seller or Medegen is currently a lessor or a lessee of any property, personal or real, except for any leases of personal property under which the aggregate annual rent or lease payments do not exceed $150,000;
(ix) any Contract concerning a partnership or joint venture;
(x) any Contract involving any restrictions with respect to the geographical area of operations or scope or type of business of Medegen or Seller or prohibiting Medegen or Seller from competing or soliciting customers;
(xi) any Contract under which Seller or Medegen has made an advance or loan (other than trade payables, accounts payables or similar trade expenses) to any other Person and in excess of $150,000;
(xii) any Contract for the sale or acquisition of a business or a significant portion thereof or assets relating thereto (except for any sale or acquisition in the Ordinary Course of Inventory that is less than $250,000);
(xiii) any power of attorney or agreement with any Person (other than an officer or Medegen) pursuant to which such Person is granted the authority to legally bind Medegen;
(xiv) any Assigned Contract under which Seller agrees, or any Contract under which Medegen agrees, to indemnify any Person for $200,000 or more (except for Contracts entered into during the Ordinary Course or Contracts with end users or invoiced accounts); and
(xv) all other Contracts that individually require payment to or by Seller or Medegen of more than $150,000 annually, that cannot be terminated by their terms on less than sixty (60) days’ notice without Liability.
(b) Seller has provided to Buyer prior to the date hereof true, correct and complete copies of all Material Contracts (including any and all amendments and other modifications to such Contracts). Except as disclosed in Section 3.10 of the Company Disclosure on Schedule 3.11(b), (i) each to Seller’s Knowledge, no Material Contract (including any Material Contract required to be included, but not so included on Schedule 3.11(a)) has been breached in any material respect or canceled, or is under material default, by the other party that has not been duly cured or reinstated, (ii) neither Company is in material breach or default under any Material Contract (including any Material Contract required to be included, but not so included on Schedule 3.11(a)), (iii) Seller is not in breach or default under any Seller Unscheduled Contracts and (iv) to the Seller’s Knowledge, no event has occurred that with the passage of time or the giving of notice or both would result in or constitute a material breach or default under any such Material Contracts Contract (including any Material Contract required to be included, but not so included on Schedule 3.11(a)) by either Company, or, to Seller’s Knowledge, any other party to any such Material Contracts. Each Material Contract (including any Material Contract required to be included, but not so included on Schedule 3.11(a)) is legal, valid, binding, enforceable and currently in full force and effect, (ii) effect against the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all and to Seller’s Knowledge, the other parties to the Material Contracts have, thereto in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the accordance with its terms. Neither Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the CompanySeller’s Knowledge, any other party to any Material Contract has waived, or extended the time for the performance of, repudiated any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent provision of any counterparty under, such Material Contract. Neither Company has received notice that any party to a Material Contract intends to cancel or (E) otherwise adversely affect terminate such Material Contract or to exercise or not exercise any of the rights of the Company or any Subsidiary under, any material option under such Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in on Schedule 3.14(a), the Company SEC Reports is not a party to any written or oral:
(i) contract for the employment of any officer, individual employee, or other Person on Section 3.10 a full-time, part-time, consulting or other basis;
(ii) contract relating to Funded Indebtedness or to the mortgaging, pledging or otherwise placing a Lien on any Asset or group of Assets of the Company;
(iii) contract involving the sale of the accounts receivable of the Company Disclosure Scheduleto any other Person at a discount;
(iv) Guaranty;
(v) contract with respect to the lending or investing of funds;
(vi) contract under which the Company is the lessee of or the holder or operator of any real or personal property owned by any other Person;
(vii) contract under which the Company is the lessor of or permits any third Person to hold or operate any real or personal property owned or controlled by the Company;
(viii) assignment, none license, indemnification or agreement with respect to any form of intangible property, including, without limitation, any Intellectual Property or confidential information;
(ix) contract or group of related contracts with the same Person for the sale of assets or services which generate in excess of $100,000 in revenues in any 12-month period;
(x) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xi) contract relating to the purchase, distribution, marketing or sales of the Company Company's or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit Person's products (other than student loans) purchase and sales orders entered into in the ordinary course of business consistent with past practices and the performance of which by the Company or parties thereto is reasonably expected to be substantially completed within 30 days of the execution thereof);
(xii) contract with any Affiliate; or
(xiii) other contract material to the business of its Subsidiaries;the Company.
(b) Except as specifically disclosed in Schedule 3.14(b), the Company has performed in all material respects all obligations required to be performed by it and is not in default under or in breach of nor in receipt of any agreement pursuant claim of default or breach under any such contract to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third it is a party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) Assets may be bound; and to the Company's Knowledge no event has occurred which with the passage of time or the giving of notice or both would result in such a default or breach under any open purchase order or contract for capital expenditures by such contract. To the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) Company's Knowledge, no other party to any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably Company is a party or by which its Assets may be expected to be paid by bound is in default under or in breach of such contract and no event has occurred which with the Company passage of time or giving of notice or both would result in a default or breach under any of its Subsidiaries would exceed One Million Dollars such contract.
($1,000,000c) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company There has been made available to Parent copies (i) a true and complete copy of all written contracts and commitments listed in Section 3.10 each of the Company Disclosure Schedulecontracts listed on Schedule 3.14(a), summaries together with all amendments, waivers or other changes thereto; and (ii) a complete description of all oral contracts and commitments listed in Section 3.10 of to which the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company a party or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under by which any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case their Assets may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractbe bound.
Appears in 1 contract
Samples: Merger Agreement (Opus360 Corp)
Contracts and Commitments. (a) Schedule 3.12 lists each of the following contracts or agreements (if any) of each of the Acquired Companies and Affiliated Property Owners:
(i) material management contracts with respect to the Properties;
(ii) all material documents evidencing or creating indebtedness for borrowed money, or giving rise to a guarantee of such indebtedness, of the Acquired Companies or of an Affiliated Property Owner relating to a Property with a remaining principal balance in excess of $100,000;
(iii) partnership agreements, limited liability company agreements and joint venture agreements to which any Acquired Company is a party (and having as another party any Person who is not an Acquired Company);
(iv) leases relating to any material personal property leased by the Acquired Companies or any Affiliated Property Owner or other real property leased by the Acquired Companies or any Affiliated Property Owner;
(v) all of the employment agreements between any of the Acquired Companies and any of the Acquired Companies Employees in effect as of the date hereof (the "Employment Agreements"), any severance agreement or arrangement with any Acquired Companies Employee, and all agreements pursuant to which consulting services are rendered to any Acquired Company that are likely to involve payments in excess of $100,000 per year;
(vi) agreements granting to any unaffiliated third party a first-refusal, first-offer or other right to purchase or acquire any of the Interests;
(vii) agreements materially limiting or restricting the ability of any Acquired Company or any Affiliated Property Owner to enter into or engage in any geographic area or line of business other than as provided in any Leases or reciprocal easement agreements or similar agreements affecting the Properties; and
(viii) agreements that will not be terminated on or before the Closing, or that cannot be terminated within thirty (30) days of the Closing, between any Acquired Company and any Partner or any Partner's Affiliates (other than an Acquired Company or an Affiliated Property Owner) that commit any one or more of the Acquired Companies or Affiliated Property Owners to pay, in the aggregate, more than $40,000 per year.
(ix) agreements entered into since March 31, 2002 pursuant to which any Acquired Company incurred an obligation to pay any amounts in respect of indemnification obligations, purchase price adjustment or otherwise in connection with (A) any acquisition or disposition of assets, (B) merger, consolidation or other business combination, or (C) series or group of related transactions or events of a type specified in (A) or (B).
(b) True and complete copies of the contracts and agreements disclosed pursuant to Section 3.12(a) hereof have been made available to the Buyer. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule 3.12 (i) each of contract and agreement disclosed pursuant to Section 3.12(a) hereof is valid and binding in all material respects on the Material Contracts Acquired Company or Affiliated Property Owner party thereto and, to the Company's Knowledge, on the other party or other parties thereto, and is in full force and effecteffect in accordance with its respective terms, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge upon consummation of the Companytransactions contemplated by this Agreement and assuming that all consents, approvals, authorizations and other actions set forth on Schedule 3.6 have been obtained and all other parties to the Material Contracts havefilings and notifications set forth on Schedule 3.6 have been made, each such contract and agreement shall continue in full force and effect in all material respectsrespects in accordance with its respective terms without penalty, performed their obligations and are not acceleration of payment or other adverse consequence (including any diminution of management or other control rights with respect to the Acquired Companies or the Affiliated Property Owners, subject to "key person" provisions in default under the Material Contractsagreements relating to Properties listed on Schedule 3.12), (iii) none of the Company Acquired Companies or applicable SubsidiaryAffiliated Property Owners, as the case may beapplicable, has not given is in material breach of, or received material default under, any notice of default under any of the Material Contractssuch contract or agreement, (iv) and no event has occurred or condition exists that, with but for the giving of notice, the notice or passage of time, would result in such a breach or both, would constitute a default by the Acquired Company or applicable SubsidiaryAffiliated Property Owner party thereto, as the case may be, or, and (iv) to the knowledge of the Company's Knowledge, any no other party under to any of the Material Contractssuch contract or agreement is in material breach thereof or material default thereunder, (v) neither the Company or applicable Subsidiaryand no event exists that, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time but for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third or passage or time, would result in such a breach or default by the other party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractthereto.
Appears in 1 contract
Samples: Merger Agreement (Macerich Co)
Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth in on the Company SEC Reports or on Section 3.10 of "Contracts Schedule" attached hereto, neither the Company Disclosure Schedule, none of the Company or Seller nor ------------------ any of its Subsidiaries is a party to or bound by any agreementby, contractwhether written or oral, commitment or other written instrument of the following typeany:
(ai) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal;
(ii) any loan agreementcontract for the employment of any officer, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or individual employee or other person on a full-time or consulting basis or any severance agreements;
(iii) agreement or instrument indenture relating to (i) the borrowing of money or obtaining extensions to mortgaging, pledging or otherwise placing a Lien on any of credit its assets;
(iv) contract under which the Seller or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $25,000;
(v) agreements with respect to the lending or investing of funds;
(vi) license or royalty agreements;
(vii) guaranty of any obligation, other than endorsements made for collection;
(viii) management, consulting, advertising, marketing, promotion, technical services, advisory or other contract or other similar arrangement relating to the design, marketing, promotion, management or operation of the Business;
(ix) outstanding powers of attorney executed on behalf of the Seller;
(x) lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $10,000 annually;
(xi) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it;
(xii) contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 days or less notice without penalties or involving more than $10,000;
(xiii) any confidentiality agreement or similar arrangement;
(xiv) contract which prohibits it from freely engaging in business anywhere in the world; or
(xv) other agreement material to it whether or not entered into in the Ordinary Course of Business.
(b) Except as disclosed on the Contracts Schedule, (i) no contract or ------------------ commitment required to be disclosed on the Contracts Schedule has been breached ------------------ or canceled by the Company other party and neither the Seller nor any Stockholder has knowledge of any anticipated breach by any other party to any contract set forth on the Contracts Schedule, (ii) no customer or supplier has indicated in writing ------------------ or orally to the Seller, any of its Subsidiaries or any Stockholder that it shall stop or decrease the rate of business done with the Seller or any of its Subsidiaries or (ii) that it desires to renegotiate its contract or current arrangement with the loaning of money or granting extensions of credit (other than student loans) by the Company Seller or any of its Subsidiaries;
, (biii) any agreement pursuant to which the Company or any Seller and each of its Subsidiaries has purchased, generated have performed all the obligations required to be performed by them in connection with the contracts or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating commitments required to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions be disclosed on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Contracts Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under or in breach of ------------------ any contract or commitment required to be disclosed on the Material ContractsContracts Schedule, (iii) ------------------ and no event has occurred which with the Company passage of time or applicable Subsidiary, as the case may be, has not given giving of notice or received any notice of both would result in a default under any of the Material Contractsor breach thereunder, (iv) no event has occurred or condition exists that, with neither the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under Seller nor any of its Subsidiaries has any present expectation or intention of not fully performing any obligation pursuant to any contract set forth on the Material ContractsContracts Schedule, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor each agreement is legal, valid, binding, ------------------ enforceable and in full force and effect and will continue as such following the consummation of the Offer transactions contemplated hereby.
(c) The Seller has provided the Purchaser with a true and correct copy of all written contracts which are required to be disclosed on the Contracts --------- Schedule, in each case together with all amendments, waivers or other changes -------- thereto (all of which are disclosed on the Merger shall (A) constitute a default under, (B) give rise Contracts Schedule). The Contracts ------------------ --------- Schedule contains an accurate and complete description of all material terms of -------- all oral contracts referred to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contracttherein.
Appears in 1 contract
Contracts and Commitments. Except (a) Neither the Company nor any Company Subsidiary is, as set forth of the Agreement Date, a party to (collectively, the “Company Material Contracts”):
(i) any collective bargaining agreement or other Contract with any Union;
(ii) any Loan Amendment, Material Loan Agreement and other Contract or indenture or similar instrument relating to Indebtedness (without regard to clause (2) in the Company SEC Reports or on Section 3.10 last sentence of the Company Disclosure Schedule, none definition thereof) of the Company or any of its Subsidiaries is Company Subsidiary or to mortgaging, pledging or otherwise placing a party to or bound by Lien (other than a Permitted Lien) on any agreement, contract, commitment or other written instrument portion of the following type:assets of the Company or any Company Subsidiary;
(aiii) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit guaranty by the Company or any Company Subsidiary of its Subsidiaries any obligation for Indebtedness (without regard to clause (2) in the last sentence of the definition thereof) or other material guaranty by the Company or any Company Subsidiary;
(iv) any Company Lease;
(v) any individual lease or other Contract under which the Company or any Company Subsidiary is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $1,000,000;
(vi) any individual lease or other Contract under which the Company or any Company Subsidiary is lessor of or permits any third party to hold or operate any personal property for which the annual rental exceeds $1,000,000;
(vii) other than purchase orders entered into in the ordinary course of business consistent with past practice, any Contract with any Company Material Customer or Company Material Supplier;
(viii) any material Intellectual Property Agreements, other than (A) Non-Negotiated Vendor Contracts; (B) Contracts for the non-exclusive license of Intellectual Property granted by the Company or any Company Subsidiary to customers in the ordinary course of business; and (C) Open Source Licenses;
(ix) any Contract that purports to limit the ability of the Company or any Company Subsidiary from competing with any Person, operating or doing business in any location, market or line of business (other than, for the avoidance of doubt, any field of use or geographical limitations under the Company’s or any Company Subsidiary’s ordinary course license agreements that do not otherwise restrict competition);
(x) any Contract providing for indemnification by the Company or any Company Subsidiary of any Person, except for any such Contracts with reasonable or customary limitations liability (including exclusions therefrom) that are entered into in the ordinary course of business consistent with past practice;
(xi) any Contract that (A) contains any “most favored nation” or similar provision in favor of any other Person, or (iiB) grants to any other Person any exclusive rights, rights of first refusal, rights of first negotiation or similar rights;
(xii) any Contract that would require the loaning disposition of money any material assets or granting extensions line of credit business of the Company or any Company Subsidiary;
(other than student loansxiii) any joint venture, strategic alliance and similar Contract;
(xiv) any Contract entered into in the last two (2) years for the settlement of any Action for which the Company or any Company Subsidiary has any ongoing liability or obligation;
(xv) any Contract requiring or providing for any capital expenditure by the Company or any Company Subsidiary in excess of $1,000,000;
(xvi) any Contract relating to the acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) by the Company or any Company Subsidiary of its Subsidiaries;any Person or material line of business entered into during the past two (2) years or the future acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person or material line of business; and
(bxvii) any agreement pursuant to which Contract, excluding Company Leases, that requires (A) the Company payment or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended delivery by the Company or any Company Subsidiary of its Subsidiaries;
cash or other consideration in an amount or having a value in excess of $1,000,000 in the aggregate per Contract or series of Contracts with the same party, or (dB) any agreement by which the Company or any performance of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries Company Subsidiary having a value in excess of One Million Dollars ($1,000,000);1,000,000 in the aggregate per Contract or series of Contracts with the same party.
(fb) any agreement for the lease of real property by the Each Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts Contract is in full force and effect, (ii) and is the legal, valid and binding obligation of either the Company or applicable Subsidiary, as the case may beany Company Subsidiary which is party thereto, and, to the knowledge Knowledge of the Company, all of the other parties thereto, enforceable against each of them in accordance with its terms, subject to any Enforceability Exceptions. Neither the Company nor any Company Subsidiary is in material breach of, or material default under any Company Material Contract, and, to the Knowledge of the Company, the other party to each Company Material Contracts have, in all material respects, performed their obligations and are Contract is not in material default under thereunder. No event has occurred that with the Material Contracts, (iii) lapse of time or the giving of notice or both would constitute a material breach or default on the part of the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, Subsidiary or, to the knowledge Knowledge of the Company, any other party under any Contract listed on Schedule 4.9(a) of the Company Disclosure Schedules. No party to any Company Material Contracts, (v) neither Contract has given the Company or applicable Subsidiary, as any Company Subsidiary written notice of its intent to terminate or materially modify or amend the case may be, nor, terms and conditions of any Company Material Contract (except with respect to the knowledge Loan Amendments to the Material Loan Agreements entered into on the Agreement Date), and no party has given the Company or any Company Subsidiary written notice of the Company, any material claim or dispute with respect to any Company Material Contract or written notice claiming that any other party has waivedis in breach of, or extended the time for the performance ofdefault under, any material obligations under the Company Material Contracts Contract. The Company has made available to Otonomo true, correct and (vi) neither the execution complete copies of this Agreement nor the each Company Material Contract, together with all amendments, modifications or supplements thereto. Upon consummation of the Offer or transactions contemplated by this Agreement, each Company Material Contract shall remain in full force and effect at the Merger shall (A) constitute a default under, (B) give rise Effective Time without any loss of benefits thereunder and without the need to cancellation rights under, (C) require the giving of notice to any third party under, (D) require obtain the consent of any counterparty underparty thereto with respect to the transactions contemplated by this Agreement or any other Transaction Agreement, in each case except for the expiration, termination or (E) otherwise adversely affect cancellation of any Company Material Contract pursuant to its terms as of the rights of the Company or any Subsidiary under, any Material ContractAgreement Date.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure ScheduleSchedule 4.12(a), none of the Company or any of its Subsidiaries no Seller Entity is a party to or bound by any agreement, contract, commitment or other written instrument of the following typeany:
(ai) agreement with any loan agreementlabor union or any bonus, origination agreementpension, indentureprofit sharing, credit facilityretirement or any other form of deferred compensation plan or any stock purchase, securitization agreementphantom stock, mortgagestock appreciation, security agreementstock option or similar plan or practice, pledge agreementwhether formal or informal, deed of trust, bond, note, guaranty, surety, trust agreement and/or other or any severance agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or arrangement;
(ii) management agreement, contract for the loaning employment of money any officer, partner, individual employee or granting extensions other person on a full-time, part-time or consulting basis or providing for the payment of credit (any cash or other than student loans) by compensation in excess of $50,000 annually or benefits upon the Company or any sale of its Subsidiariesthe Business;
(biii) agreement or indenture relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any of such Seller Entity’s assets or letter of credit arrangements;
(iv) agreements with respect to the lending or investing of funds; DocuSign Envelope ID: 527E44C1-3B8F-43DC-92D2-5F1F96B5B037
(v) inbound or outbound license or royalty agreements or other contracts with respect to any Proprietary Rights;
(vi) lease or agreement pursuant to under which such Seller Entity is lessee of or holds or operates any property, real or personal, owned by any other party for which the Company annual rental exceeds $25,000 in the aggregate;
(vii) lease or agreement under which such Seller Entity is lessor of or permits any of its Subsidiaries has purchasedthird party to hold or operate any property, generated real or sold student loans personal, owned or controlled by such Seller Entity;
(viii) distributor, vendor, customer or maintenance agreements which involve consideration in excess of Five Million Dollars ($5,000,000) in principal amount50,000 annually;
(cix) other contract or group of related contracts with the same party continuing over a period of more than twelve months from the date or dates thereof, not terminable by such Seller Entity upon thirty (30) days’ or less notice without penalty or involving more than $25,000 in the aggregate;
(x) agreement which prohibits such Seller Entity from freely engaging in business anywhere in the world or that otherwise restricts any activities of any Seller Entity (including any co-existence or other agreement that restricts the use of any Proprietary Rights and any agreements that include “most-favored-nations” or similar provisions);
(xi) agreement relating to the extension marketing, advertising or promotion of insurance such Seller Entity’s products or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiariesservices;
(dxii) any agreement by which the Company franchise or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiariesagency agreements;
(exiii) agreements relating to ownership of or investments in any open purchase order business or contract for capital expenditures by the Company or any of its Subsidiaries enterprise, including investments in excess of One Million Dollars ($1,000,000)joint ventures and minority equity investments;
(fxiv) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(lxv) any agreement not entered into in the Ordinary Course of Business or that is material salesto the business, marketing financial condition, results of operations or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty prospects of such Seller Entity which such Seller Entity makes or surety agency agreementreceives annual payments of not less than $25,000 in the aggregate; or
(oxvi) agreement with any other contractInsider or any individual related by marriage or adoption to any such Insider or any entity in which any such Person owns any beneficial interest.
(b) Except as specifically disclosed on Schedule 4.12(b), agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid no Material Contract has been cancelled by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreementother party thereto, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the CompanySeller Parties, all breached in any material respect by the other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contractsparty thereto, (iiiii) the Company or applicable Subsidiary, as the case may be, each Seller Entity has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material performed all obligations under the each Material Contracts Contract required to be performed by such Seller Entity and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.there DocuSign Envelope ID: 527E44C1-3B8F-43DC-92D2-5F1F96B5B037
Appears in 1 contract
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement or as set forth in on the attached "Contracts Schedule" or the attached "Employee Benefits Schedule," neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries Subsidiary is a party to or bound by any agreement, contract, commitment written or other written instrument of the following typeoral:
(ai) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any loan agreementother employee benefit plan or arrangement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other or any collective bargaining agreement or instrument any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis providing annual compensation in excess of $100,000 or having a remaining term of 3 years or longer, or contract relating to loans to officers, directors or Affiliates;
(iiii) contract under which the borrowing of Company or any Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $10,000;
(iv) agreement or indenture relating to borrowed money or obtaining extensions other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of credit assets of the Company and its Subsidiaries;
(v) guarantee of any obligation in excess of $10,000 (other than by the Company of a Wholly-Owned Subsidiary's debts or a guarantee by a Subsidiary of the Company's debts or another Subsidiary's debts);
(vi) lease or agreement under which the Company or any Subsidiary is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $100,000;
(vii) lease or agreement under which the Company or any Subsidiary is lessor of or permits any third party to -35- hold or operate any property, real or personal, owned or controlled by the Company or any Subsidiary;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves payments in any period of 12 consecutive months in excess of $100,000;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including, without limitation, any Intellectual Property);
(x) warranty agreement with respect to its Subsidiaries services rendered or its products sold or leased;
(iixi) the loaning agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xii) sales, distribution or franchise agreement;
(xiii) agreement with a term of money or granting extensions of credit (other more than student loans) six months which is not terminable by the Company or any of its SubsidiariesSubsidiary upon less than 30 days notice without penalty;
(bxiv) contract, agreement or other arrangement (A) with any agreement pursuant to which the Company officer, director, stockholder, employee or (B) involving an aggregate of $50,000 or more in any period of 12 consecutive months, with Affiliate, or any Affiliate of its Subsidiaries has purchasedany officer, generated director, stockholder or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amountemployee;
(cxv) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries prohibiting it from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) freely engaging in any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating competing anywhere in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreementworld; or
(oxvi) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company its operations and business prospects or involves a consideration in excess of $120,000 annually (excluding any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”purchase order involving less than $250,000). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 1 contract
Samples: Purchase Agreement (United Usn Inc)
Contracts and Commitments. (a) Except as set forth in the Company filed as an exhibit to Parent’s SEC Reports or set forth on Section 3.10 of Schedule 4.15, and except as contemplated by this Agreement, neither Parent, nor the Company Disclosure ScheduleParent Subsidiaries, none of nor the Company or any of its Subsidiaries entities listed on Schedule 4.1(b) is a party to or bound by any agreement, oral or written contract, obligation or commitment or other written instrument of any type in any of the following typecategories:
(ai) agreements or arrangements that provide for employment other than at will or that contain severance pay, understandings with respect to tax arrangements, understandings with respect to expatriate benefits, or post-employment liabilities or obligations;
(ii) agreements or plans under which benefits will be increased or accelerated by the occurrence of any loan agreementof the transactions contemplated by this Agreement, origination agreementor under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) agreements, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement contracts or instrument commitments currently in force relating to the disposition or acquisition of assets other than in the ordinary course of business, or relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise;
(iiv) agreements, contracts or commitments for the borrowing purchase of money materials, supplies or obtaining extensions of credit by equipment, under which the Company aggregate payments for the past twelve (12) months exceeded $100,000, which are with sole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which Parent or any of its the Parent Subsidiaries is absolutely or contingently liable for (iiA) the loaning performance of money any other Person, firm or granting extensions of credit corporation (other than student loansParent or the Parent Subsidiaries), (B) by the Company whole or any part of its the indebtedness or liabilities of any other Person, firm or corporation (other than Parent or the Parent Subsidiaries), or (C) indemnification obligations to officers and directors;
(vi) powers of attorney authorizing the incurrence of a material obligation on the part of Parent or the Parent Subsidiaries;
(bvii) any agreement pursuant to agreements, contracts or commitments which the Company limit or restrict (A) where Parent or any of its the Parent Subsidiaries has purchasedmay conduct business, generated (B) the type or sold student loans in excess lines of Five Million Dollars business ($5,000,000current or future) in principal amount;
which they may engage, or (cC) any agreement relating to the extension acquisition of insurance assets or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended stock (the “Higher Education Act”), tangible or intangible) by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company Parent or any of its the Parent Subsidiaries;
(dviii) agreements, contracts or commitments, under which the aggregate payments or receipts for the past 12 months exceeded $100,000, containing any agreement by which the Company with respect to a change of control of Parent or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Parent Subsidiaries;
(eix) any open purchase order agreements, contracts or contract commitments for capital expenditures the borrowing or lending of money, or the availability of credit (except credit extended by the Company Parent or any of its the Parent Subsidiaries to customers in excess the ordinary course of One Million Dollars ($1,000,000business and consistent with past practice);
(fx) any agreement hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the lease exchange of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreementcurrency; or
(oxi) any other agreement, contract or commitment that would be otherwise required to be filed as an exhibit to a periodic report under the Exchange Act, as provided by Rule 601 of Regulation S-K promulgated under the Exchange Act. Each contract, agreement or commitment of the type described in this Section 4.15 is referred to herein as a “Parent Contract.”
(ib) Neither Parent nor any of the Parent Subsidiaries, nor to the knowledge of Parent any other party to a Parent Contract, has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under (nor does there exist any condition under which, with respect to which the aggregate amount that passage of time or the giving of notice, or both, could reasonably be expected to be paid by the Company cause such a breach, violation or default under) any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in Parent Contract, other than any twelve (12)-month period following the date of this Agreementbreaches, violations or defaults which have not had, or could not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(iic) that Each Parent Contract is otherwise material a valid, binding and enforceable obligation of Parent and to the Company or any knowledge of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 Parent, of the Company Disclosure Scheduleother party or parties thereto, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleaccordance with its terms, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) except where the Company failure to be valid, binding, enforceable and in full force and effect has not had, or applicable Subsidiarycould not reasonably be expected to have, as individually or in the case may beaggregate, and, a Parent Material Adverse Effect and to the knowledge extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of the creditors’ rights governing or by general principles of equity.
(d) An accurate and complete copy of each Parent Contract has been made available (including via XXXXX) to Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Quepasa Corp)
Contracts and Commitments. Except as set forth (a) Schedule 3.13(a) in the Company SEC Reports or on Section 3.10 Disclosure Schedule sets forth a list as of the Company Disclosure Schedule, none date of this Agreement of each of the following types of Contracts to which the Company or any of its Subsidiaries is a party (other than one-time purchase orders and statements of work) (such Contracts set forth or required to or bound by any agreementbe set forth on Schedule 3.13(a), contracteach, commitment or other written instrument of a “Material Contract”); provided that Employee Benefit Plans listed on Schedule 3.17 in the following type:Disclosure Schedule do not have to be listed (provided that such Contracts may still constitute a “Material Contract” hereunder):
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) any employment Contract or consulting Contract with any director, officer, employee or individual independent contractor of the borrowing Company or any of money its Subsidiaries pursuant to which the Company or obtaining extensions its Subsidiaries have future Liability, excluding for such purpose, any future Liabilities in respect of credit Options, in excess of $150,000 per annum with respect to such director, officer, employee or individual independent contractor’s base compensation or is not terminable by the Company and its Subsidiaries upon notice of thirty (30) calendar days or less;
(ii) any covenant not to compete granted by the Company or any of its Subsidiaries in favor of a third party or that otherwise restricts the ability of the Company or any of its Subsidiaries to enter into, compete or engage in any business or activity;
(iii) any Contract or group of related Contracts with respect to a single transaction or series of related transactions under which (A) the Company or any of its Subsidiaries is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third party or (iiB) the loaning Company or any of money its Subsidiaries is a lessor or granting extensions sublessor of, or makes available for use by any third party, (x) any real property or (y) tangible personal property owned or leased by the Company or such Subsidiary which requires payments in excess of credit $100,000 per annum and is not terminable for convenience by the Company and its Subsidiaries upon notice of thirty (30) calendar days or less;
(iv) any Contract relating to the lending, incurrence, assumption, or guarantee of any Indebtedness (not including clauses (ix)-(xii) of the definition thereof) (other than student loansintercompany loans among the Company and its Subsidiaries, advances to employees of the Company or any of its Subsidiaries or trade credit provided, purchases of equipment or materials made under conditional sales contracts and surety bonds, performance bonds or similar instruments, in each case incurred in the Ordinary Course);
(v) any partnership, strategic alliance or joint venture agreement;
(vi) any Contract (other than any standard purchase order, master services agreement or pricing agreement) for the sale, distribution, or servicing of goods or services that provides for payments to the Company or any of its Subsidiaries in excess of $250,000 per annum and is not terminable for convenience by the Company and its Subsidiaries upon notice of thirty (30) calendar days or less;
(vii) any Contract with a Key Customer, Key Supplier or Governmental Authority;
(viii) any Contract granting the exclusive right to purchase or distribute products or services to any Person (including, as the case may be, the Company or any of its Subsidiaries);
(bix) any agreement pursuant to which Contract granting a “most favored nation” or similar provision in favor of any Person (including, as the case may be, the Company or any of its Subsidiaries);
(x) any Contract that obligates the Company or any of its Subsidiaries has purchased, generated to make any earn-out or sold student loans in excess similar payments based on future performance of Five Million Dollars ($5,000,000) in principal amountan acquired business or assets;
(cxi) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans Contract for the Company purchase of goods or any of its Subsidiaries;
(e) any open purchase order or contract services that provides for capital expenditures annual payments by the Company or any of its Subsidiaries in excess of One Million Dollars $250,000 and is not terminable for convenience by the Company and its Subsidiaries upon notice of thirty ($1,000,000)30) calendar days or less;
(fxii) any agreement for Contract (A) containing exclusivity, minimum quantity obligations, “take or pay” obligations or other similar restrictions; or (B) granting a right of first refusal, first offer or first negotiation, in each case, in favor of any Person (including, as the lease of real property by case may be, the Company or any of its Subsidiaries);
(gxiii) any contract collective bargaining agreement or agreement that subjects other Contract with any labor union, labor organization or other similar representative of employees of the Company and its Subsidiaries;
(xiv) any settlement or similar Contract pursuant to which the Company or any of its Subsidiaries to restrictions on will have any outstanding material obligations (not including customary confidentiality obligations) after the competitive conduct Closing Date;
(xv) any Contract for capital expenditures or the acquisition of their businesses or prohibits or otherwise restricts fixed assets in excess of $100,000;
(xvi) any material Permits;
(xvii) any Contract for the sale of any assets of the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;other than in the Ordinary Course; or
(hxviii) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement Contract relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from acquisition by the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined operating business or the operating assets or capital stock of any other Person entered into after December 31, 2022, and any letters of intent in Section 3.19(c));or respect of any potential acquisitions not yet consummated.
(kb) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available for inspection by Parent a true and correct copy of each Contract, lease, license, instrument or other agreement listed or required to Parent copies of all written contracts and commitments be listed on Schedule 3.13(a) in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto Schedule (collectively, the “Material Contracts”). Except as disclosed on Schedule 3.13(b) in Section 3.10 the Disclosure Schedule, the Company or the applicable Subsidiary or Subsidiaries party thereto, and, to the Knowledge of the Company, each applicable counterparty, has performed all material obligations required to be performed by it to date under the Material Contracts and is not (with or without the lapse of time or the giving of notice, or both) in material breach or default thereunder. Each Material Contract is a legal, valid and binding obligation of the Company Disclosure Schedule (i) each of or the Material Contracts applicable Subsidiary or Subsidiaries party thereto, is in full force and effect, (ii) effect and is enforceable against the Company or the applicable Subsidiary, as the case may be, Subsidiary or Subsidiaries party thereto and, to the knowledge Knowledge of the Company, all other parties to the Material Contracts havecounterparties thereto in accordance with its terms, in all material respectseach case, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, except as the case such enforceability may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default be limited by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractEnforceability Exceptions.
Appears in 1 contract
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreementSchedule 4.7(a) sets forth a complete list of the Contracts to which the Company and its Subsidiary are a party, origination agreementare bound by, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to receive benefits under which are (i) material Contracts not made in the borrowing ordinary course of money or obtaining extensions of credit by the Company or business (including any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement Contracts pursuant to which the Company or its Subsidiary received funding from a Seller or an Affiliate of a Seller); (ii) any Contract relating to the borrowing of money by it or the guarantee by it of any such obligation; (iii) a Contract that by its Subsidiaries has purchasedterms either requires the Company or its Subsidiary to do business with the contract party on an exclusive basis or restricts or limits the Company from owning, generated managing or sold student loans operating any business or in excess of Five Million Dollars any geographical location ($5,000,000including non-competition agreements); (iv) in principal amount;
any joint venture or partnership agreement; (cv) any agreement relating that grants any right of first refusal or right of first offer or similar right to third parties or that limits or purports to limit the extension ability of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or its Subsidiary in any material respect to pledge, sell, transfer or otherwise dispose of its Subsidiaries;
any material amount of assets or business; (dvi) any agreement by which the Company or any of its Subsidiaries services student loans Contract providing for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement material future payments that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customersare conditioned, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part part, on a change of control with respect to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right Subsidiary; (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(lvii) any material salesInsurance Contract; (viii) any material agency, broker, sale representative, marketing or advertising agreement;
similar Contract; (mix) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount Contract that could reasonably be expected to be paid by contains a “most favored nation” clause obligating the Company or its Subsidiary to change the material terms and conditions of such Contract based on better terms or conditions provided to other parties in similar Contracts; (x) any Contract relating to any merger or business combination concerning the Company or its Subsidiary or the acquisition or disposition of any assets or any Person during the last five years; (xi) any Contract with any director, officer, employee or Affiliate of the Company or its Subsidiaries would exceed One Million Dollars Subsidiary; and ($1,000,000xii) any currently effective Contract with any customer set forth in Schedule 4.24, any twelve (12)-month period following material Contract of the date of this Agreement, Company or (ii) that its Subsidiary based on aggregate expenditures and any other Contract which is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 Subsidiary (the Contracts of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed type covered in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto clauses (collectivelyi) through (xii), the “Material Contracts”). .
(b) Except as disclosed set forth in Section 3.10 of the Company Disclosure Schedule 4.7(b), (i) each of Material Contract is valid and binding on the Material Contracts is Company and its Subsidiary and in full force and effect, effect and is valid and binding on the other parties thereto; (ii) the Company or applicable Subsidiary, as the case may be, and its Subsidiary (and, to the knowledge Knowledge of the Company, all other parties to the Material Contracts have, any counterparty thereto) have each performed in all material respects, respects all obligations required to be performed their obligations and are not in default by them to date under the each Material Contracts, (iii) Contract. Neither the Company nor its Subsidiary is in material breach or applicable Subsidiary, as the case may be, has not given or received any notice of default under any order, writ, judgment, decree, Contract or other instrument to which it is a party or by which it or any of its assets or properties is bound, whether entered into in the Material Contractsordinary course of business or otherwise and whether written or oral, (iv) no and there has not occurred any event has occurred or condition exists that, with the lapse of time or giving of notice or both, would constitute such a material breach or default. The Company has not received notice of any cancellation, material breach of, or default under (or any condition which, with the passage of time or the giving of notice, the passage of timewould cause a material breach of, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under), any Material Contract.
(c) A true, correct and complete copy of each Material Contract has been delivered to Buyer prior to the date of this Agreement.
(d) Except as set forth in Schedule 4.7(d), the enforceability after the Closing by Buyer of the Material Contracts shall not be affected in any material respect by the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and no notice to, or consent, approval or waiver is required from any other party to a Material Contract.
Appears in 1 contract
Contracts and Commitments. Except as set Section 4.19 of the Disclosure Schedule sets forth in a list of all material agreements, Contracts and commitments to which the Company SEC Reports or on Section 3.10 of any Company Subsidiary is a party or by which the Company, any Company Subsidiary or their respective assets are bound (each, a "Material Contract"), including, without limitation:
(a) agreements, contracts, commitments or arrangements involving Intellectual Property;
(b) employment agreements or severance agreements or employee termination arrangements that are not terminable at will by the Company Disclosure Schedule, none or a Company Subsidiary without penalty;
(c) any change of control agreements with employees of the Company or any Company Subsidiary;
(d) agreements, contracts, commitments or arrangements containing any covenant limiting the ability of its Subsidiaries the Company or any Company Subsidiary to engage in any line of business or to compete with any business or person;
(e) agreements or contracts with any officer, director or employee of (i) the Company or (ii) any Company Subsidiary (other than employment, severance and change of control agreements covered by clause (b) or (c) above);
(f) agreements or contracts under which the Company or any Company Subsidiary has borrowed or loaned money, or any note, bond, indenture, mortgage, installment obligation or other evidence of indebtedness for borrowed or loaned money or any guarantee of such indebtedness, in each case, relating to amounts in excess of $5,000;
(g) joint venture agreements or other agreements involving the sharing of profits;
(h) leases pursuant to which personal or real property is a party leased to or bound by from the Company or any Company Subsidiary;
(i) powers of attorney from the Company or any Company Subsidiary;
(j) guaranties, suretyships or other contingent agreements of the Company or any Company Subsidiary;
(k) all agreements, contracts, commitments and arrangements between the Company or any Company Subsidiary and any Governmental Entity;
(l) any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument arrangement relating to (i) the borrowing of money or obtaining extensions of credit by capital expenditures with respect to the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or Subsidiary and involving future payments which exceed $5,000 in any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement12 month period;
(m) any employment agreement, contract, commitment or arrangement relating to the acquisition of assets (other than in the ordinary course of business consistent with past practice) or any capital stock of any business enterprise;
(n) any student loan guaranty investment banking or surety agency other professional services agreement; or;
(o) any contracts (other contract, agreement or commitment than those covered by clause (ia) with respect through (n) above) pursuant to which the aggregate amount that could reasonably be expected to be paid by Company and the Company Subsidiaries will receive or pay in excess of $5,000 over the life of the contract;
(p) any other material agreements, Contracts and commitments whether or not entered into in the ordinary course of business; and
(q) all proposed arrangements or contracts of the Company or the Company Subsidiaries which the Company reasonably expects to be near consummation and of a type that if entered into would be a Contract described in clauses (a) through (o) above. Neither the Company, any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this AgreementCompany Subsidiary nor, or (ii) that is otherwise material to the Company Stockholder's and the Company's knowledge, any other party thereto, is in material breach of or in material default under any of its SubsidiariesMaterial Contract. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Each such Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts Contract is in full force and effect, (ii) and is a legal, valid and binding obligation of the Company or and/or the applicable Subsidiary, as the case may be, Company Subsidiaries and, to the knowledge Stockholder's and the Company's knowledge, each of the Company, all other parties to the Material Contracts havethereto, enforceable in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, accordance with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractits terms.
Appears in 1 contract
Contracts and Commitments. Except as set (a) Schedule 4.11(a) sets forth in the Company SEC Reports or on Section 3.10 with respect to each of the Company Disclosure Schedule, none of the Company or any of and its Subsidiaries is a party to any contract (or bound by any agreementgroup of related contracts) (all such contracts, contract, commitment or other written instrument of the following type:“Material Contracts”):
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) relating to the borrowing incurrence of money Indebtedness or obtaining extensions of credit by to the Company mortgaging, pledging or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit otherwise placing a Lien (other than student loansa Permitted Lien) by on any properties or assets of the Company or any of its Subsidiaries;
(bii) any agreement with respect to the lending or investing of funds;
(iii) with respect to Intellectual Property Rights (other than customer agreements or other agreements pursuant to which the Company or any of its Subsidiaries has purchasedlicensed off-the-shelf commercial software), generated including any rights, license, royalty or sold student loans other similar contract;
(iv) under which it is a lessee of, or holds or operates, any Tangible Personal Property owned by any other Person calling for aggregate payments in excess of Five Million Dollars ($5,000,000) in principal amount10,000 annually;
(cv) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by each customer contract that the Company reasonably expects to generate annual recurring revenue of $10,000 or any of its Subsidiariesmore;
(dvi) any agreement by calling for payments in calendar year 2010 in excess of $10,000 annually pursuant to which the Company or any of and its Subsidiaries services student loans for any subcontracts work to third party or by which any third party services student loans for the Company or any of its Subsidiariesparties;
(evii) any open purchase order or contract calling for capital expenditures aggregate payments by the Company or any of its Subsidiaries in excess of One Million Dollars $10,000 ($1,000,000unless terminable by the Company or its Subsidiaries without payment or penalty upon no more than sixty (60) days’ notice);
(fviii) imposing any agreement for the lease of real property by confidentiality or secrecy obligation on the Company or any of its Subsidiaries, excluding standard confidentiality or secrecy provisions contained in agreements with customer, vendors or prospective customers or vendors entered into in the Ordinary Course of Business and consistent with past practice and excluding confidentiality agreements entered into in connection with the Transaction;
(gix) involving a commitment to make any contract capital expenditure in excess of $10,000 in the aggregate;
(x) constituting an outstanding powers of attorney (or agreement that subjects comparable arrangement) executed by or on behalf of the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts Subsidiaries; or
(xi) containing a covenant restricting the Company or any of its Subsidiaries from soliciting customers, vendors competing in any business in any geographical area or employees of third parties;using any Company Intellectual Property.
(hb) Each of the Material Contracts is a legal, valid and binding obligation of the Company or its applicable Subsidiary, is in full force and effect and is enforceable by the Company or such Subsidiary in accordance with its terms. Each of the Material Contracts have been entered into in the Ordinary Course of Business in all material respects, except as set forth in Schedule 4.11(b). Neither the Company nor any joint ventureof its Subsidiaries is (with or without the lapse of time or the giving of notice, partnershipor both) in breach in any material respect under any contract listed on Schedule 4.11(a), royalty Schedule 4.15(d) or similar agreement involving Schedule 4.16, except for such breaches, defaults or claims that, individually or in the sharing aggregate, have not resulted in, and would not reasonably be expected to result in, a Material Adverse Change of profits and/or expenses between the Company. Except as disclosed on Schedule 4.11(a), Schedule 4.15(d) or Schedule 4.16, as applicable, to the Knowledge of the Company, none of the other parties to any Material Contract is (with or without the lapse of time or the giving of notice, or both) in breach in any material respect thereunder nor has any event occurred that with notice or lapse of time would constitute a material breach or permit termination or acceleration thereof, except for such breaches, defaults or claims that, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, a Material Adverse Change of the Company. Except as disclosed on Schedule 4.11(a), Schedule 4.15(d) or Schedule 4.16, as applicable, neither the Company nor any Subsidiary has received any written notice of the intention of any party to terminate any Material Contract and, there is no basis therefor. The Company has delivered or made available to the Buyer a true and complete copy of each Material Contract as in effect on the date of this Agreement.
(c) Except as set forth on Schedule 4.11(c), all of the Material Contracts may be assigned to the Buyer free of cost or expense without obtaining the consent or approval of any other Person or do not require any cost or expense or the consent or approval of any other Person in connection with the transactions contemplated hereby. Neither the Company nor any Subsidiary of the Company is a party to any contract providing for any payments to any Person resulting from the consummation of the transactions contemplated hereby, except as set forth on Schedule 4.11(c). To the Knowledge of the Company, no event has occurred or circumstance exists under or by virtue of any Material Contract that (with or without notice or lapse of time) would cause the creation of any Lien affecting any of the assets of the Company or any Subsidiary of the Company. Neither the Company nor any Subsidiary of the Company has given to or received from any other Person, at any time since January 1, 2010, any written (or to the Knowledge of the Company, oral) notice or other communication regarding any actual, alleged, possible or potential violation or breach of, or default under, any Material Contract. There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any amounts paid or payable to the Company or any Subsidiary of the Company under current or completed Material Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation. Except to the extent set forth on Schedule 4.11(c), no customer or other party to any of the Material Contracts has given written (or to the Knowledge of the Company, oral) notice to the Company of any plan or intention to terminate, to cancel or otherwise materially and adversely modify its relationship with the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (to decrease materially its usage, purchase or any letter distribution of intent, term sheet the services or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any products of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 1 contract
Contracts and Commitments. Except as set forth in (a) To the Company SEC Reports or on Section 3.10 Company’s knowledge, Schedule 5.9(a) attached hereto lists all of the following Contracts of the Company Disclosure Scheduleand its Subsidiaries which are currently in effect as of the date hereof (and, none as identified on Schedule 5.9(a), the “Material Contracts”):
(i) Contracts (other than purchase orders entered into in the ordinary course of business) which involve commitments to make capital expenditures or which provide for the purchase of goods or services by the Company or any of its Subsidiaries is from any one Person under which the undelivered balance of such products or services has a party to or bound by any agreement, contract, commitment or other written instrument purchase price in excess of the following type:Twenty-Five Thousand Dollars ($25,000);
(aii) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed Contracts (other than purchase orders entered into in the ordinary course of trust, bond, note, guaranty, surety, trust agreement and/or other agreement business) which provide for the sale of products or instrument services by the Company or its Subsidiaries and under which the undelivered balance of such products or services has a sale price in excess of Twenty-Five Thousand Dollars ($25,000);
(iii) Contracts relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) Subsidiaries, to the loaning of money or granting extensions of credit (other than student loans) by the Company or its Subsidiaries of a Lien on any of its Subsidiariesassets, or any guaranty by the Company or its Subsidiaries of any obligation or Liability in any case involving a Liability in excess of Twenty-Five Thousand Dollars ($25,000);
(biv) any agreement Contracts with dealers, distributors, brokers or sales representatives which are likely to involve payments in excess of Twenty-Five Thousand Dollars ($25,000);
(v) Contracts relating to advertising or media commitments for its products or services which are likely to involve payments in excess of Twenty-Five Thousand Dollars ($25,000);
(vi) Contracts pursuant to which the Company or its Subsidiaries is a lessor or a lessee of any property, Personal Property or real property, or holds or operates any tangible Personal Property owned by another Person, except for any leases of personal property under which the aggregate annual rent or lease payments do not exceed Twenty-Five Thousand Dollars ($25,000);
(vii) Contracts relating to the manufacture or packaging of any of the Company’s or its Subsidiaries has purchased, generated or sold student loans Subsidiaries’ products which are likely to involve payments in excess of Twenty-Five Million Thousand Dollars ($5,000,000) in principal amount25,000);
(cviii) any agreement relating to Contracts for the extension of insurance use, license or the providing sublicense of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency Proprietary Rights owned or other entity of the principal of and/or accrued interest on any student loan extended licensed by the Company or its Subsidiaries or otherwise used in the Business (other than any license of mass-marketed or otherwise generally available software);
(ix) any power of attorney (whether revocable or irrevocable) given to any Person by the Company or its Subsidiaries;
(dx) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures Contracts by the Company or any of its Subsidiaries not to compete in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to any geographical area or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably Company or its Subsidiaries is the beneficiary of any non-compete provision;
(xi) Contracts restricting the right of the Company or its Subsidiaries to use or disclose any information in their possession or with respect to which the Company or its Subsidiaries is the beneficiary of any confidentiality, nondisclosure or non-use provision;
(xii) any partnership, joint venture or other similar arrangements;
(xiii) any employment agreements, severance agreements, bonus agreements and non-competition agreements with employees of the Company or its Subsidiaries including, without limitation, all contracts involving Bonus Payments;
(xiv) any Contract with any officer, director, shareholder or any of their respective Affiliates except for employment agreements with its officers (which shall be expected to be paid identified as an Affiliate contract on Schedule 5.9(a)); and
(xv) any other Contract by the Company or any of its Subsidiaries would exceed One Million Dollars which is material to the operation of the Business.
($1,000,000b) in Except as disclosed on the attached Schedule 5.9(b): (i) neither the Company nor its Subsidiaries has materially breached or cancelled any twelve (12)-month period following the date of this Agreement, or Contract; (ii) that to the Company’s Knowledge, none of the Company’s or its Subsidiaries’ Contracts have been breached in any respect or canceled by the other party which has not been duly cured or reinstated; (iii) to the Company’s Knowledge, neither the Company nor its Subsidiaries is otherwise in receipt of any written claim of default under any Contract; (iv) to the Company’s Knowledge, no event has occurred which with the passage of time or the giving of notice or both would result in a material breach or default under any Contract or create in any Person the right to accelerate, suspend, terminate, modify, cancel or exercise any other material right under any Contract; (v) no Person has given written notice to the Company or its Subsidiaries of repudiation of any provision of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts Contract; and (vi) neither the execution Company nor its Subsidiaries has received any written notice of this Agreement nor any, and to the consummation of the Offer or the Merger shall (A) constitute a default underCompany’s and its Subsidiaries Knowledge there is no, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent impending change of any counterparty under, relationship with any customer or (E) otherwise adversely affect any of the rights supplier of the Company or its Subsidiaries or other Person with whom the Company or its Subsidiaries has a material business relationship. To the Company’s and its Subsidiaries’ Knowledge, each Contract is valid, binding and in full force and effect and enforceable in accordance with its terms. Except as disclosed on Schedule 5.9(b), all of the Material Contracts are either terminable at will or on not more than 90 days advance notice by the Company or its Subsidiaries and in either case without penalty.
(c) Except as disclosed on Schedule 5.9(a), the Company and its Subsidiaries has made available to Parent true, correct and complete copies of all of the Material Contracts together with all amendments or waivers thereof.
(d) Each of the Company’s and its Subsidiaries’ Contracts have been entered into without the commission of any Subsidiary underact by or on behalf of the Company, alone or in concert with any other Person, or any consideration having been paid or promised, that, in either case, is or would be in violation of any Law.
(e) Except as disclosed on Schedule 5.9(e), the Company has obtained all consents from third parties required under the Material ContractContracts which are necessary to consummate the transactions contemplated hereby. The consummation of the transactions contemplated by this Agreement will not result in the termination or breach of any of the Material Contracts.
Appears in 1 contract
Samples: Merger Agreement (Affinity Media International Corp.,)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 (a) Contracts. Schedule 3.9.(a) of the Company Disclosure Schedule, none Letter sets forth a complete and accurate list of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant all Contracts to which the Company or any Protonex LLC is a party or by which the Company or Protonex LLC or their assets are bound (including oral agreements) of its Subsidiaries has purchased, generated or sold student loans the following categories:
(i) Contracts not made in excess the ordinary course of Five Million Dollars business that are not otherwise required to be disclosed pursuant to clauses ($5,000,000ii)-(xviii) in principal amountbelow;
(cii) all agreements, programs, policies, arrangements or other Contracts for the employment or engagement of any current or former officer, employee or Contingent Worker on a full time, part time, consulting or other basis;
(iii) All employee benefit plans and compensation plans or arrangements, including ERISA plans and non-ERISA plans, employee stock purchase plans, stock option plans, and other equity incentive compensation arrangements;
(iv) Contracts containing covenants (including confidentiality provisions if applicable) limiting the freedom of the Company or Protonex LLC (or any of their subsidiaries) to engage in any line of business, expand the geographical scope of business anywhere in the world, compete with any Person or that otherwise have the effect of restricting in any material respect the Company or Protonex LLC (or any of their subsidiaries) from the development, manufacture, marketing or distribution of products and/or services, including without limitation, non-competition, non-solicitation and standstill obligations, or any contract, agreement or arrangement containing any exclusivity, noncompetition or most favored pricing terms to which the Company or Protonex LLC is subject;
(v) Contracts containing restrictive covenant agreements (including confidentiality, non-competition, and non-solicitation) between the Company or Protonex LLC and any employee or Contingent Worker of the Company or Protonex LLC;
(vi) Contracts with any Company Stockholder, any Affiliate of any Company Stockholder or any other Affiliate of the Company or Protonex LLC (“Affiliate Agreements”);
(vii) Contracts exceeding $50,000 relating to the extension manufacture, distribution and shipment of insurance or the providing of any guarantee, pursuant Products to the Higher Education Act Company’s or Protonex LLC’s customers;
(viii) options with respect to any property, real or personal, whether the Company or Protonex LLC shall be the grantor or grantee thereunder;
(ix) Contracts involving future expenditures or Liabilities that have generated or are reasonably expected to generate more than $200,000 in expense during the twenty-four month period beginning twelve (12) months prior to the Interim Balance Sheet Date and ending twelve (12) months after the Interim Balance Sheet Date;
(x) Contracts that have generated or are reasonably expected to generate more than $200,000 in revenue in any consecutive twelve (12) month period during the twenty four month period beginning twelve (12) months prior to the Interim Balance Sheet Date and ending twelve (12) months after the Interim Balance Sheet Date;
(xi) Contracts or commitments relating to commission arrangements with any officer, individual employee, consultant or other Person;
(xii) promissory notes, loans, indentures, evidences of 1965Indebtedness, as amended letters of credit, guarantees, or other instruments or agreements relating to an obligation to pay money, whether the Company or Protonex LLC shall be the borrower, lender or guarantor thereunder or whereby any assets of the Company or Protonex LLC are pledged (excluding credit provided by the “Higher Education Act”Company or Protonex LLC in the ordinary course of business to purchasers of the Company’s or Protonex LLC’s services or products);
(xiii) any Contract with the United States, by state or local government or any federal agency or department thereof;
(xiv) Leases of real property;
(xv) Leases of personal property not cancelable (without Liability) within 30 calendar days;
(xvi) written warranties, guaranties and or other entity of the principal of and/or accrued interest on any student loan similar undertakings with respect to contractual performance extended by the Company or any Protonex LLC, except as set for the on Schedule 3.33 of its Subsidiariesthe Company Disclosure Letter;
(dxvii) any agreement by which the Company joint venture, partnership and other Contracts (however named) involving a sharing of profits, losses costs or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures Liabilities by the Company or Protonex LLC with any other Person; and
(xviii) material Contracts relating to the development, ownership, use or licensing of any patents, trademarks, copyrights, or other Intellectual Property, including agreements with current or former employees, consultants, or contractors regarding the disposition, development, appropriation or the nondisclosure of any of its Subsidiaries in excess the Intellectual Property of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any Protonex LLC other than the Company’s standard form of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customersNon-Disclosure, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries Non-Solicitation and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Invention Assignment Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has delivered or made available to Parent true, correct and complete copies of all written contracts and commitments of the Contracts listed in Section 3.10 on Schedule 3.9.(a) of the Company Disclosure ScheduleLetter, summaries of including all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications amendments and supplements thereto thereto. All Contracts and Leases listed (collectively, the or required to be listed) on Schedule 3.9.(a) are referred to herein as “Material Contracts.”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 1 contract
Contracts and Commitments. Except as set forth in the Company SEC Reports or on (a) Section 3.10 3.15(a) of the Company Seller Disclosure ScheduleSchedule sets forth, none as of the date hereof, a list of the following Contracts to which the Company or any of its Subsidiaries the Company Subsidiary is a party to or bound by any agreement, contract, commitment or other written instrument of the following typeparty:
(ai) any Contract with any director, officer, employee, consultant or agent providing for (A) severance, change-in-control or retention benefits, (B) the increase or acceleration of benefits payable as a result of the Transactions, or (C) aggregate payments in any calendar year in excess of $100,000;
(ii) any Contract to forgive any indebtedness in excess of $5,000 of any Person to the Company or the Company Subsidiary;
(iii) any Contract providing for the purchase of real property;
(iv) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or promissory note or other agreement or instrument Contract relating to indebtedness for borrowed money;
(iv) any Contract to guaranty the borrowing obligations of money any third party (including Sellers or obtaining extensions any Affiliate of credit Sellers) or to indemnify any third party (other than indemnification of customers, resellers, distributors, agents, suppliers, licensors or licensees in respect of intellectual property rights or in connection with the sale or licensing to customers, in the ordinary course of business, of products or services of the Company or the Company Subsidiary or indemnification obligations of the Company or the Company Subsidiary in favor of officers, directors, employees and other agents contained in the bylaws or other governing documents of the Company or the Company Subsidiary);
(vi) any Contract which restricts the ability of the Company or the Company Subsidiary to engage in any business activity in any geographic area or line of business or which restricts the ability of the Company or the Company Subsidiary to compete with any Person;
(vii) any Contract for the sale or other disposition of any material asset or portion of the assets of the Company or the Company Subsidiary, other than in the ordinary course of business;
(viii) any Contract obligating the Company or the Company Subsidiary to make aggregate payments in excess of $100,000 in any fiscal year to any third party which is not terminable by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company Subsidiary without penalty or any of its Subsidiariesfurther liability exceeding $10,000 upon 90 days’ notice or less;
(bix) other than those listed in Sections 3.15(a)(x) and 3.15(a)(xi) of the Disclosure Schedule, any agreement Contract pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans the Company Subsidiary reasonably expects to receive aggregate payments in excess of Five Million Dollars $250,000 in any fiscal year;
($5,000,000x) Contracts with the resellers of the Company and the Company Subsidiary that represent (i) the top 25 resellers based on the amount of aggregate revenues generated by such resellers in principal amountthe three-months ended January 31, 2004 and (ii) the top 25 resellers based on the number of merchants represented by such resellers in the three-months ended January 31, 2004;
(xi) any Contract, other than those listed in Sections 3.15(a)(i) through 3.15(a)(x) of the Disclosure Schedule, on which the Purchased Business is substantially dependent or as to which a default under or termination of such Contract would result in a Material Adverse Effect.
(b) Section 3.15(b) of the Seller Disclosure Schedule sets forth, as of the date hereof, a list of all Contracts to which Sellers or any of their Affiliates (other than the Company or the Company Subsidiary) is a party by which the Purchased Business or assets or properties of the Company or the Company Subsidiary are bound or that relate to the Purchased Business and which would be required to be disclosed on Section 3.15(a) of the Seller Disclosure Schedule if the Company were a party thereto.
(c) any agreement relating Sellers have provided or made available to Purchaser a correct and complete copy of each Material Contract (or, in the extension of insurance or the providing case of any guaranteeoral Contract, pursuant to a written summary of the Higher Education Act of 1965, as amended (the “Higher Education Act”material terms thereof), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement together with any Governmental Authority;
(l) any material sales, marketing amendments or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any side letters thereto in effect as of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement. Each Material Contract is, or (ii) that is otherwise material to the Company or any Knowledge of Sellers, valid, binding and enforceable in accordance with its Subsidiaries. The Company has made available to Parent copies of all written contracts terms (except for the Enforceability Limitations) and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect. There is no existing material default or material breach by Sellers, (ii) the Company, the Company Subsidiary or applicable Subsidiary, as the case may be, any other Affiliate of Sellers under any Material Contract to which it is a party and, to the knowledge Knowledge of Sellers, no other party to any Material Contract is in material default or material breach thereunder. To the CompanyKnowledge of Sellers, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists thatwhich, with the giving notice or lapse of notice, the passage of time, time or both, would constitute a material breach or default by the Company or applicable Subsidiarypermit termination, as the case may be, or, to the knowledge of the Company, any other party modification or acceleration under any of the Material Contracts, (v) neither the Company Contract or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, impair any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights right of the Company or the Company Subsidiary to exercise and obtain the benefit of any Subsidiary under, options contained in any Material Contract. None of Sellers, the Company or the Company Subsidiary (i) has received written notice from any party to a Material Contract indicating such party’s intent to terminate a Material Contract, or (ii) is bound by a written forbearance agreement with respect to a Material Contract.
Appears in 1 contract
Samples: Stock Sale Agreement (Infospace Inc)
Contracts and Commitments. (a) Except as set forth in on Schedules 2.12(a)(i)-(xix) and as disclosed on Schedule 2.14(c) the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of and its Subsidiaries is are not a party to or bound by otherwise obligated under any agreement, contract, commitment or other written instrument of the following typefollowing, whether written or oral:
(ai) any loan agreementAny contract, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to purchase order providing for the sale of products, the provision of services or warranty liability (iA) the borrowing in excess of money or obtaining extensions of credit $100,000, in any such case, by the Company or any of its Subsidiaries to any other person or entity or (iiB) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement otherwise pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess accepted the terms and conditions of Five Million Dollars ($5,000,000) in principal amountthe other party thereto;
(cii) any agreement relating to the extension of insurance Any single contract or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract providing for capital expenditures an expenditure by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company 100,000 or any of its Subsidiaries;
(gcontracts or purchase orders with the same or affiliated vendor(s) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid providing for an expenditure by the Company or any of its Subsidiaries in excess of $100,000;
(iii) Any contract providing for an expenditure by the Company or any of its Subsidiaries for the purchase, lease or sale of any real property;
(iv) Any contract, bid or offer to sell products or to provide services to third parties which (A) the Company or any of the Company’s Subsidiaries knows or has reason to believe is at a price which would exceed One Million Dollars ($1,000,000) result in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material a net loss to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to ’s Subsidiaries on the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company sale of such products or applicable Subsidiary, as the case may be, has not given or received any notice provision of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default undersuch services, (B) give rise contains terms or conditions which the Company or any of the Company’s Subsidiaries cannot reasonably expect the Company or its Subsidiaries to cancellation rights undersatisfy or fulfill in whole or in part, or (C) require to the giving of notice to any third party underextent not provided in the Data Room, (D1) require the consent of any counterparty underwould permit such a Third Party to seek or recover consequential damages, (2) does not contain a cap on damages or (E3) otherwise adversely affect any provides for liquidated damages;
(v) Any purchase commitment for materials, supplies, component parts or other items or services in excess of the rights normal, ordinary, usual and current requirements of the Company or any Subsidiary underof its Subsidiaries or at a price in excess of the current reasonable market price (A) at the time of such commitment or (B) at the time of expected delivery of such materials, supplies, component parts or other items or services;
(vi) Any contract pursuant to which the Company or any of its Subsidiaries is the lessee or sublessee of, or holds or operates, any Material Contracttangible personal property owned or leased by any other Person or entity (other than leases of personal property leased in the Ordinary Course of Business with annual lease payments no greater than $50,000);
(vii) Any contract pursuant to which the Company or any of its Subsidiaries is the lessor, sublessor or lessee of, or permits any Third Party to operate, any real or personal property owned or leased by any Shareholder or an officer or employee of the Company or any of its Subsidiaries or any Affiliate thereof;
(viii) Any revocable or irrevocable power of attorney granted to any Person for any purpose whatsoever;
(ix) Any loan agreement, indenture, promissory note, conditional sales agreement, mortgage, security agreement, pledge, letter of credit arrangement, guarantee, endorsement, foreign exchange contract, commodity contract, interest rate or other derivative contract, accommodation or other similar type of contract or agreement, and in any event, including each instrument, contract or agreement evidencing or relating to Indebtedness (together, in each applicable case, with the outstanding principal balance thereof, accrued but unpaid interest thereon, prepayment penalties associated therewith and total payoff amount as of the payoff date specified thereon);
(x) Any assumption, surety, guarantee, indemnity or other similar type contract or agreement or guaranteeing the obligations of or indemnifying another Person;
(xi) Any arrangement or other agreement which involves (A) a sharing of profits, (B) future payments of $150,000 or more per annum to other persons, or (C) any joint venture, partnership or similar contract or arrangement.
(xii) Any sales agency, sales representation, consulting, distributorship or franchise agreement that is not terminable in 30 days or less without cost or penalty;
(xiii) Any contract (A) prohibiting competition by the Company or any of the Company’s Subsidiaries, (B) prohibiting the Company or any of its Subsidiaries or their employees from freely engaging in any business anywhere in the world, or (C) prohibiting the disclosure of trade secrets or other confidential or proprietary information (in the case of (C), other than nondisclosure agreements or nondisclosure provisions entered into in the Ordinary Course of Business);
(xiv) Any contract or commitment not made in the Ordinary Course of Business;
(xv) Any contract pursuant to which the Company or any of its Subsidiaries has entered into or has agreed to enter into any hedging or similar transactions;
(xvi) Any contract pursuant to which the Company or any of its Subsidiaries has acquired or disposed of or has agreed to acquire or dispose of any securities or any business or product line or the like;
(xvii) Any license, sublicense, assignment or agreement that is included in or related to the Company Intellectual Property other than nondisclosure agreements entered into in the Ordinary Course of Business;
(xviii) Any contract which does not specifically provide for a limitation on the liability of the Company or any of its Subsidiaries which has not been provided in the Data Room; and
(xix) Any other contract or commitment which is not cancelable without penalty on 30 days’ notice or less and which is not specifically described on any other Schedule to this Agreement or which was not provided in the Data Room.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ixia)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan The Company currently is party to intellectual property assignment agreements, a sponsored research agreement, origination agreementemployment agreements, indentureconfidentiality agreements, credit facilityconsulting agreements, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries research and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduletesting agreements, and all modifications and supplements thereto professional service provider agreements (collectively, the “Material Contracts”). Except as disclosed With these exception, the Company has no:
(i) Contracts (other than purchase orders entered into in Section 3.10 the ordinary course of business) which involve commitments to make capital expenditures or which provide for the purchase of goods or services by the Company from any one Person under which the undelivered balance of such products or services has a purchase price in excess of Ten Thousand Dollars ($10,000);
(ii) Contracts (other than purchase orders entered into in the ordinary course of business) which provide for the sale of products or services by the Company or Parent and under which the undelivered balance of such products or services has a sale price in excess of Ten Thousand Dollars ($10,000);
(iii) Contracts relating to the borrowing of money by the Company, to the granting by the Company of a Lien on any of its assets, or any guaranty by the Company of any obligation or liability in any case involving a liability in excess of Ten Thousand Dollars ($10,000);
(iv) Contracts pursuant to which the Company is a lessor or a lessee of any property, personal or real, or holds or operates any tangible personal property owned by another Person, except for any leases of personal property;
(v) Contracts for the use, license or sublicense of any Proprietary Rights owned or licensed by the Company or otherwise used in the Business (other than any license of mass-marketed or otherwise generally available software);
(vi) any power of attorney (whether revocable or irrevocable) given to any Person by the Company;
(vii) Contracts by the Company not to compete in any business or in any geographical area or with respect to which the Company is the beneficiary of any non-compete provision;
(viii) Contracts restricting the right of the Company Disclosure Schedule to use or disclose any information in their possession or with respect to which the Company is the beneficiary of any confidentiality, nondisclosure or non-use provision;
(iix) each any partnership, joint venture or other similar arrangements;
(x) any employment agreements, severance agreements, bonus agreements and non-competition agreements with employees of the Company; and
(xi) any Contract with any officer, director, shareholder or any of their respective Affiliates except for employment agreements with its officers which shall be identified on Schedule 5.9(a)).
(b) The Company has not materially breached or cancelled any Material Contract; to the Company’s Knowledge, none of the Company’s Material Contracts have been breached in any respect or canceled by the other party which has not been duly cured or reinstated; to the Company’s Knowledge, the Company is not in receipt of any written claim of default under any Material Contract; to the Company’s Knowledge, no event has occurred which with the passage of time or the giving of notice or both would result in a material breach or default under any Contract or create in any Person the right to accelerate, suspend, terminate, modify, cancel or exercise any other material right under any Company Material Contract; no Person has given notice to the Company of repudiation of any provision of any Material Contract; and the Company has not received any notice of any, and to the Company’s Knowledge there is no, impending change of any business relationship with any Person with whom the Company has a material business relationship. To the Company’s Knowledge, each Material Contract is valid, binding and in full force and effect, effect and enforceable in accordance with its terms.
(iic) Each of the Company Company’s Material Contracts has been entered into without the commission of any act by or applicable Subsidiary, as the case may be, and, to the knowledge on behalf of the Company, all alone or in concert with any other parties to the Material Contracts havePerson, or any consideration having been paid or promised, that, in all material respectseither case, performed their obligations and are not is or would be in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent violation of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractLaw.
Appears in 1 contract
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreementSchedule 2.14 contains a complete and accurate list of all contracts, origination agreementagreements, indenturecommitments, credit facilityinstruments and obligations (whether written or oral, securitization agreement, mortgage, security agreement, pledge agreement, deed contingent or otherwise) of trust, bond, note, guaranty, surety, trust agreement and/or other agreement the Dialysis Companies (or instrument the Sellers relating to the Dialysis Business) concerning the following matters (the "Company Agreements"):
(i) the borrowing lease (as lessee or lessor) or license (as licensee or licensor) of money any real or obtaining extensions of credit by the Company personal property (tangible or any of its Subsidiaries or intangible);
(ii) the loaning employment or engagement of money any officer, director, employee, consultant or granting extensions of credit agent;
(other than student loansiii) by any relationship with any person or entity affiliated with or related to the Company Sellers or the Dialysis Companies or any officer, director, employee, consultant or agent;
(iv) any arrangement limiting the freedom of its Subsidiariesany of the Dialysis Companies, or any other person with respect to the Dialysis Business to compete in any manner in any line of business or requiring any of the Dialysis Companies to share profits;
(v) any arrangement that could reasonably be anticipated to have a material adverse effect on any of the Dialysis Companies or the Dialysis Business, financial or otherwise;
(vi) any arrangement not in the ordinary course of business;
(vii) any power of attorney, whether limited or general, granted by or to any of the Dialysis Companies, or any other person with respect to the Dialysis Business; and
(viii) any other arrangement that requires performance for a period of more than 90 days or that requires payments in excess of $50,000.
(b) any agreement pursuant The Sellers have delivered to which RCG true and complete copies of all Company Agreements that are in writing. Except as indicated on Schedule 2.14, the Company or Agreements are valid and effective in accordance with their terms, and there is not under any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
such contracts (i) any business acquisition existing or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid claimed default by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no Dialysis Companies or the Sellers or their Affiliates or event has occurred which with notice or condition exists that, with the giving of notice, the passage lapse of time, or both, would constitute a material default by any of the Dialysis Companies or the Sellers or their Affiliates or (ii) to the knowledge of the Sellers, any existing or claimed default by any other party or event which with notice or the lapse of time, or both, would constitute a material default by any such party. Except as indicated on Schedule 2.14, the continuation, validity and effectiveness of the Company Agreements will not be affected by the Transactions, and the Transactions will not result in a breach of or applicable Subsidiarydefault under, as or require the case may beconsent of any other party to, any of the Company Agreements. There is no actual or, to the knowledge of the CompanySellers, threatened termination, cancellation or limitation of any other party under Company Agreements that would have a material adverse effect on any of the Material ContractsDialysis Companies or the Dialysis Business, (v) neither the Company financial or applicable Subsidiary, as the case may be, nor, to otherwise. To the knowledge of the CompanySellers, there is no pending or threatened bankruptcy, insolvency or similar proceeding with respect to any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractAgreements.
Appears in 1 contract
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 4.25 of the Company NeoStem Disclosure ScheduleStatement, none of the Company as described in a NeoStem SEC Report or as set forth as an exhibit in a NeoStem SEC Report, neither NeoStem nor any of its Subsidiaries is a party to or bound by any agreement, existing contract, obligation or commitment or other written instrument of any type in any of the following typecategories:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) 4.25.1 contracts for the borrowing of money or obtaining extensions of credit purchase by the Company NeoStem or any of its Subsidiaries of medicines, materials, supplies or equipment which are not cancelable upon 90 days’ or less notice and which either (i) have not been entered into in the ordinary course of business and consistent with past practice or (ii) provide for purchase prices substantially greater than those presently prevailing for such materials, supplies or equipment, or (iii) contracts obligating NeoStem or its Subsidiaries to make capital expenditures in excess of $50,000;
4.25.2 contracts under which NeoStem or any of its Subsidiaries has, except by way of endorsement of negotiable instruments for collection in the ordinary course of business and consistent with past practice, become absolutely or contingently or otherwise liable for (i) the performance of any other person, firm or corporation under a contract, or (ii) the loaning whole or any part of money the indebtedness or granting extensions liabilities of credit (any other person, firm or corporation;
4.25.3 powers of attorney outstanding from NeoStem or any of its Subsidiaries other than student loans) as issued in the ordinary course of business and consistent with past practice with respect to customs, insurance, patent, trademark or tax matters, or to agents for service of process;
4.25.4 contracts under which any amount payable by NeoStem or any of its Subsidiaries is dependent upon, or calculated in accordance with, the Company revenues or earnings (or any component thereof of NeoStem or any of its Subsidiaries;
(b) 4.25.5 contracts with any agreement pursuant to which the Company director, officer, employee or affiliate of NeoStem or any of its Subsidiaries has purchasedother than in such person’s capacity as a director, generated officer or sold student loans in excess employee of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company NeoStem or any of its Subsidiaries;
(d) any agreement by 4.25.6 contracts which the Company limit or restrict where NeoStem or any of its Subsidiaries services student loans for any third party may conduct its business or by the type or line of business in which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company NeoStem or any of its Subsidiaries in excess of One Million Dollars ($1,000,000)may engage;
(f) 4.25.7 contracts with any agreement party for the lease loan of real property by the Company money or availability of credit to or from NeoStem or any of its Subsidiaries;
Subsidiaries (g) any contract or agreement that subjects the Company except credit extended by NeoStem or any of its Subsidiaries to restrictions on its customers in the competitive conduct ordinary course of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries business and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transactionconsistent with past practice);
(j) 4.25.8 any material hedging, option, derivative or other similar transaction; or
4.25.9 any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) Authority or, to NeoStem's knowledge, any material salesGovernment Authority contractor, marketing with regard to any product or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty service sold or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid provided by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its SubsidiariesNeoStem. The Company has made available to Parent True and complete copies of all written contracts contracts, obligations and commitments listed in Section 3.10 4.25 of the Company NeoStem Disclosure ScheduleStatement have been delivered or made available to CBH. Except as set forth in Section 4.25 of the NeoStem Disclosure Statement, summaries none of all oral contracts NeoStem or its Subsidiaries or, to the knowledge of NeoStem, any other party is in breach of or default under any of the contracts, obligations and commitments listed in Section 3.10 4.25 of the Company NeoStem Disclosure Schedule, and all modifications and supplements thereto Statement or under any other NeoStem Contracts (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of NeoStem, no facts or circumstances exist which could reasonably support the Companyassertion of any such breach or default) except for breaches and defaults which would not, singly or in the aggregate with all other parties to the such breaches, have a NeoStem Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractAdverse Effect.
Appears in 1 contract
Samples: Merger Agreement (NeoStem, Inc.)
Contracts and Commitments. (a) Except as set forth in on Schedules 2.12(a)(i)-2.12(a)(xvi) and as disclosed on Schedule 2.14(c), the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of and its Subsidiaries is are not a party to or bound by otherwise obligated under any agreement, contract, commitment or other written instrument of the following typefollowing, whether written or oral, which are currently in effect or which were entered into during the 12 months preceding the date hereof:
(ai) any loan agreementAny contract, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to purchase order providing for the sale of products, the provision of services or warranty liability in excess of Three Hundred Fifty Thousand Dollars (i) the borrowing of money or obtaining extensions of credit $350,000), in any such case, by the Company or any of its Subsidiaries to any other person or entity;
(ii) the loaning of money Any single contract or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract providing for capital expenditures an expenditure by the Company or any of its Subsidiaries in excess of One Million Hundred Thousand Dollars ($1,000,000);
(f100,000) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(gcontracts or purchase orders with the same or affiliated vendor(s) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid providing for an expenditure by the Company or any of its Subsidiaries in excess of Two Hundred Fifty Thousand Dollars $(250,000);
(iii) Any contract providing for an expenditure by the Company or any of its Subsidiaries for the purchase, lease or sale of any real property;
(iv) Any contract, bid or offer to sell products or to provide services to third parties which (A) the Company or any of the Company’s Subsidiaries knows or has reason to believe is at a price which would exceed One Million Dollars ($1,000,000) result in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material a net loss to the Company or any of its Subsidiaries. The Company has made available to Parent copies the Company’s Subsidiaries on the sale of all written contracts and commitments listed in Section 3.10 such products or provision of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto such services or (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (iB) each of the Material Contracts is in full force and effect, (ii) contains terms or conditions which the Company or applicable Subsidiaryany of the Company’s Subsidiaries cannot reasonably expect the Company or its Subsidiaries to satisfy or fulfill in whole or in part;
(v) Any purchase commitment for materials, as the case may besupplies, and, component parts or other items or services which to the knowledge of the CompanyCompany are in excess of the normal, all other parties to the Material Contracts haveordinary, in all material respects, performed their obligations usual and are not in default under the Material Contracts, (iii) current requirements of the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of its Subsidiaries or at a price in excess of the Material Contractscurrent reasonable market price (A) at the time of such commitment or (B) at the time of expected delivery of such materials, supplies, component parts or other items or services;
(ivvi) Any contract pursuant to which the Company or any of its Subsidiaries is the lessee or sublessee of, or holds or operates, any tangible personal property owned or leased by any other Person or entity (other than leases of personal property leased in the Ordinary Course of Business with annual lease payments no event has occurred greater than Fifty Thousand Dollars ($50,000));
(vii) Any contract pursuant to which the Company or condition exists thatany of its Subsidiaries is the lessor, sublessor or lessee of, or permits any third party to operate, any real or personal property owned or leased by any Stockholder or an officer or employee of the Company or any of its Subsidiaries or any Affiliate thereof;
(viii) Any revocable or irrevocable power of attorney granted to any Person for any purpose whatsoever;
(ix) Any loan agreement, indenture, promissory note, conditional sales agreement, mortgage, security agreement, pledge, letter of credit arrangement, guarantee, endorsement, foreign exchange contract, commodity contract, interest rate or other derivative contract, accommodation or other similar type of contract or agreement, and in any event, including each instrument, contract or agreement evidencing or relating to Indebtedness (together, in each applicable case, with the giving outstanding principal balance thereof, accrued but unpaid interest thereon, prepayment penalties associated therewith and total payoff amount as of noticethe payoff date specified thereon);
(A) Any assumption, the passage of timesurety, guarantee, support, or bothother similar type of contract or agreement guaranteeing or supporting the obligations of another Person or (B) except in the Ordinary Course of Business, would constitute any indemnity or other similar type of contract or agreement indemnifying another Person;
(xi) Any arrangement or other agreement which involves (A) a default sharing of profits or (B) any joint venture, partnership or similar contract or arrangement.
(xii) Any sales agency, sales representation, consulting, distributorship or franchise agreement that is not terminable in 90 days or less without cost or penalty;
(xiii) Any contract (A) prohibiting competition by the Company or applicable Subsidiaryany of the Company’s Subsidiaries, as (B) prohibiting the case may be, Company or any of its Subsidiaries or, to the knowledge of the Company, their employees from freely engaging in any other party under any of business anywhere in the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waivedworld, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require prohibiting the giving disclosure of notice trade secrets or other confidential or proprietary information (in the case of (C), other than nondisclosure agreements entered into in the Ordinary Course of Business);
(xiv) Any contract or commitment not made in the Ordinary Course of Business;
(xv) Any contract pursuant to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of which the Company or any Subsidiary under, of its Subsidiaries has entered into or has agreed to enter into any Material Contracthedging or similar transactions;
(xvi) Any contract pursuant to which the Company or any of its Subsidiaries has acquired or disposed of or has agreed to acquire or dispose of any securities or any business or product line or the like;
(xvii) The Company Intellectual Property Agreements that comprise the licenses associated with the top ten customers by revenue in calendar year 2011; and
(xviii) Any Third Party Intellectual Property Agreements.
Appears in 1 contract
Samples: Merger Agreement (Ixia)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 4.25 of the Company NeoStem Disclosure ScheduleStatement, none of the Company as described in a NeoStem SEC Report or as set forth as an exhibit in a NeoStem SEC Report, neither NeoStem nor any of its Subsidiaries is a party to or bound by any agreement, existing contract, obligation or commitment or other written instrument of any type in any of the following typecategories:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) 4.25.1 contracts for the borrowing of money or obtaining extensions of credit purchase by the Company NeoStem or any of its Subsidiaries of medicines, materials, supplies or equipment which are not cancelable upon 90 days' or less notice and which either (i) have not been entered into in the ordinary course of business and consistent with past practice or (ii) provide for purchase prices substantially greater than those presently prevailing for such materials, supplies or equipment, or (iii) contracts obligating NeoStem or its Subsidiaries to make capital expenditures in excess of $50,000;
4.25.2 contracts under which NeoStem or any of its Subsidiaries has, except by way of endorsement of negotiable instruments for collection in the ordinary course of business and consistent with past practice, become absolutely or contingently or otherwise liable for (i) the performance of any other person, firm or corporation under a contract, or (ii) the loaning whole or any part of money the indebtedness or granting extensions liabilities of credit (any other person, firm or corporation;
4.25.3 powers of attorney outstanding from NeoStem or any of its Subsidiaries other than student loans) as issued in the ordinary course of business and consistent with past practice with respect to customs, insurance, patent, trademark or tax matters, or to agents for service of process;
4.25.4 contracts under which any amount payable by NeoStem or any of its Subsidiaries is dependent upon, or calculated in accordance with, the Company revenues or earnings (or any component thereof of NeoStem or any of its Subsidiaries;
(b) 4.25.5 contracts with any agreement pursuant to which the Company director, officer, employee or affiliate of NeoStem or any of its Subsidiaries has purchasedother than in such person's capacity as a director, generated officer or sold student loans in excess employee of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company NeoStem or any of its Subsidiaries;
(d) any agreement by 4.25.6 contracts which the Company limit or restrict where NeoStem or any of its Subsidiaries services student loans for any third party may conduct its business or by the type or line of business in which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company NeoStem or any of its Subsidiaries in excess of One Million Dollars ($1,000,000)may engage;
(f) 4.25.7 contracts with any agreement party for the lease loan of real property by the Company money or availability of credit to or from NeoStem or any of its Subsidiaries;
Subsidiaries (g) any contract or agreement that subjects the Company except credit extended by NeoStem or any of its Subsidiaries to restrictions on its customers in the competitive conduct ordinary course of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries business and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transactionconsistent with past practice);
(j) 4.25.8 any material hedging, option, derivative or other similar transaction; or
4.25.9 any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) Authority or, to NeoStem's knowledge, any material salesGovernment Authority contractor, marketing with regard to any product or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty service sold or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid provided by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its SubsidiariesNeoStem. The Company has made available to Parent True and complete copies of all written contracts contracts, obligations and commitments listed in Section 3.10 4.25 of the Company NeoStem Disclosure ScheduleStatement have been delivered or made available to CBH. Except as set forth in Section 4.25 of the NeoStem Disclosure Statement, summaries none of all oral contracts NeoStem or its Subsidiaries or, to the knowledge of NeoStem, any other party is in breach of or default under any of the contracts, obligations and commitments listed in Section 3.10 4.25 of the Company NeoStem Disclosure Schedule, and all modifications and supplements thereto Statement or under any other NeoStem Contracts (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of NeoStem, no facts or circumstances exist which could reasonably support the Companyassertion of any such breach or default) except for breaches and defaults which would not, singly or in the aggregate with all other parties to the such breaches, have a NeoStem Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractAdverse Effect.
Appears in 1 contract
Samples: Merger Agreement (China Biopharmaceuticals Holdings Inc)
Contracts and Commitments. Except as (a) Schedule 3.12(a) and the leases set forth in Schedule 3.13 comprise in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is aggregate a party to or bound by any agreement, contract, commitment or other written instrument of the following typetrue and complete list of:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition Contracts between the Seller or divestiture agreement (a Program Affiliate, on the one hand, and any Third Party, on the other, involving per annum payments in excess of [***] regarding research, development, manufacture, sale, distribution, or any letter of intent, term sheet service with respect to the HIV Program or draft agreement relating to any such pending transaction)the MEK Program;
(jii) any contract relating in whole outstanding purchase order or in part to supply agreement issued by the licensing to or from the Company Seller or any Program Affiliate in connection with the Programs representing an obligation in excess of its Subsidiaries [***]
(iii) all joint venture, strategic alliance, partnership or similar agreements to which Seller or any Program Affiliate is a party that provide for the manufacture, marketing, sale or distribution of any material Intellectual Property Right (as defined in Section 3.19(c))products or services of the Programs;
(kiv) any contract or agreement material Contracts with any Governmental AuthorityAffiliate of Seller or current or former officer, director or stockholder of Seller or its Affiliates relating to the Programs other than inter-company services agreements;
(lv) any material salesContracts containing covenants of Seller or any Program Affiliates not to compete in any line of business or any geographical area relating to the Programs, marketing or advertising agreementcovenants of any other Person not to compete with Seller or any Program Affiliates anywhere in the world in the specific areas of the Programs;
(mvi) outstanding agreements of guaranty, surety or indemnification, direct or indirect, by Seller or any employment contractProgram Affiliates in respect of the Programs other than express and implied product and service warranties and indemnities included in purchase orders, commercial Contracts, and other Contracts in the ordinary course of business;
(nvii) any student loan guaranty or surety agency agreement; orContracts other than the Assumed contracts that, to Seller’s knowledge, impose a material Lien other than a Permitted Lien on any of the Transferred Assets;
(oviii) any Contracts for the sale of any of the Transferred Assets or any Contracts for the grant to any Person of any preferential rights to purchase any of the Transferred Assets of the Programs;
(ix) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise Contracts material to the Company or Programs involving per annum payments in excess of [***]; and
(x) any other Assumed Contracts with aggregate obligations in excess of its Subsidiaries. The Company [***]
(b) Seller has made available delivered to Parent Purchaser copies of all written contracts the documents identified on Schedule 3.12(a) and commitments listed in Section 3.10 Schedule 3.13.
(c) Each of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Assumed Contracts is in full force and effecteffect and is the legal, valid and binding obligation of Seller or (iiSeller’s transferring Affiliate(s) the Company or applicable Subsidiarywhere appropriate), as the case may beenforceable against it in accordance with its terms, andsubject to Enforceability Exceptions. Neither Seller nor any Program Affiliate(s) is, to the knowledge of the CompanySeller’s knowledge, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contractsany Assumed Contract, (iii) the Company or applicable Subsidiarynor to Seller’s knowledge, as the case may beis any other party in default thereunder, has not given or received any notice of default under any of the Material Contracts, (iv) and no event has occurred that with the lapse of time or condition exists that, with the giving of notice, the passage of time, notice or both, both would constitute a default by the Company or applicable Subsidiary, as the case may be, or, thereunder. No party to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither Assumed Contracts has given Seller or any Program Affiliate written notice of the Company or applicable Subsidiary, as the case may be, nor, exercise of any termination rights with respect thereto. Except for Third Party consents to the knowledge Assumed Contracts listed on Schedule 3.12(c), no Transfer of the Company, an Assumed Contract to Purchaser pursuant hereto requires any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, other Person or will constitute a breach or default thereunder (E) otherwise adversely affect any including a breach or default after giving notice or the lapse of the rights of the Company or any Subsidiary under, any Material Contracttime).
Appears in 1 contract
Samples: Asset Purchase Agreement (Ardea Biosciences, Inc./De)
Contracts and Commitments. (a) Except as set forth in on the attached Contracts Schedule, ------------------ neither the Company SEC Reports nor any Subsidiary as of the date of this Agreement is a party to or is bound to any of the following (each, a "Material Contract"): -----------------
(i) Contract involving payments of more than $150,000 per year and relating to the borrowing of money or to placing a Lien on Section 3.10 any of the assets, other than Permitted Liens;
(ii) license or royalty agreement involving expected payments of more than $150,000 per year;
(iii) Contract that would impose any geographic restrictions upon the ability of the Company Disclosure Scheduleand the Subsidiaries from freely engaging in their businesses anywhere in the world;
(iv) guaranty of any obligation of any Person (other than the Company or the Subsidiaries);
(v) Contract relating to the supply, none manufacturing, distribution, marketing, advertising or promotion of products or services (whether by the Company or each Subsidiary or for the Company or each Subsidiary) involving in any such case payments of more than $250,000 per year (other than sales or purchases made pursuant to purchase orders in the ordinary course of business);
(vi) Contract relating to the pending acquisition or sale of a business, business unit or product line having a fair market value in excess of $100,000 or for the Sale of the assets of the Company or any Subsidiary (other than the sale of its Subsidiaries inventory in the ordinary course of business consistent with past practice) for consideration in excess of $100,000;
(vii) consulting agreement providing for payments thereunder in excess of $100,000 per year;
(viii) Contract under which a Person (other than the Company or any Subsidiary) is advanced or loaned an amount exceeding $100,000;
(ix) joint venture agreements, partnerships or similar Contracts providing for the sharing of profits, losses, costs or liabilities; any Contract relating to earn-outs, deferred payments or similar payments of more than $125,000 per year; any other Contract, other than Real Property Leases, which involve the expenditure of or receipt of more than $250,000 per year (other than sales or purchases made pursuant to purchase orders in the ordinary course of business); any employment or consulting Contract with any Person that provides for annual compensation in excess of $100,000; Contracts with any Governmental Entity providing for payments in excess of $100,000 or not otherwise in the ordinary course of business; or
(x) other than any Real Property Lease, any employment agreement required to be made available to Buyer under Section 4.13, ------------ or any ordinary course purchase order from a party to or bound by any agreement, contract, commitment or other written instrument customer of the following type:
(a) any loan agreementBusiness, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit Contract that cannot be terminated at will by the Company or any Subsidiary (A) within 12 months of its Subsidiaries the Closing Date and (B) without incurring a termination fee or (ii) the loaning penalty of money or granting extensions of credit (other more than student loans) by the Company or any of its Subsidiaries;$100,000.
(b) any agreement pursuant Except as set forth on the attached Contracts Schedule, ------------------ each Contract required to which be disclosed on the attached Contracts Schedule is ------------------ in full force and effect and is the legal, valid and binding obligation of the Company and/or any Subsidiary, enforceable against it/them in accordance with its terms. Neither the Company nor any Subsidiary is in violation of or in default under (nor does there exist any condition which upon the passage of its Subsidiaries has purchasedtime or the giving of notice would cause such a violation of or default under) any Contract required to be disclosed on the attached Contracts --------- Schedule, generated except as set forth on the attached Contracts Schedule or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;except -------- ------------------ for violations or defaults that would not reasonably be expected to have a Material Adverse Effect.
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent Buyer true and complete copies of all written contracts and commitments Contracts listed in Section 3.10 of on the Company Disclosure attached Contracts Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.------------------
Appears in 1 contract
Contracts and Commitments. (a) Except for leases required to be disclosed pursuant to Sections 4.12 and 4.13 hereof, Plans required to be disclosed pursuant to Section 4.17(a) hereof and insurance policies required to be disclosed by Section 4.20 hereof, Schedule 4.21(a) attached hereto contains a list of each contract, subcontract, agreement, commitment, option, note, bond, mortgage, indenture, deed of trust, guarantee, franchise or license which: (i) (A) requires payments in excess of Five Hundred Thousand Dollars ($500,000.00); (B) contains the terms and conditions: (I) upon which any person is employed or engaged as an officer, general manager, or consultant; or (II) upon which any severance or other termination payments are payable; (C) provides preferential rights to purchase any material quantity of any assets; (D) limits the freedom of any party to engage in any business in any geographic area; (E) contains any "change in control" provision which would be breached by the consummation of the transactions contemplated by this Agreement; or (F) contains the terms of any guaranty of the payment or performance of any liabilities or obligations the cost of the payment or performance of which liabilities or obligations exceeds, in the aggregate, an amount equal to Five Hundred Thousand Dollars ($500,000); and (ii) (A) Seller is a party to and relates primarily to any Automotive Filter Company (hereinafter individually referred to as a "Seller Contract" and collectively as the "Seller Contracts"); or (B) any Automotive Filter Company is a party to or the beneficiary of (hereinafter individually referred to as a "Automotive Filter Company Contract" and collectively as the "Automotive Filter Company Contracts").
(b) Prior to the date hereof Seller has delivered or otherwise made available to Buyer, true and complete copies of the Seller Contracts and the Automotive Filter Company Contracts including all amendments thereof and modifications thereto.
(c) Except as set forth in the Company SEC Reports or on Section 3.10 Schedule 4.21(c) attached hereto, each of the Seller Contracts and the Automotive Filter Company Disclosure ScheduleContracts are valid, none of binding and in full force and effect and enforceable in accordance with its terms except to the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to extent that: (i) the borrowing of money such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or obtaining extensions of credit by the Company other similar laws now or any of its Subsidiaries or hereafter in effect relating to creditors rights; and (ii) the loaning remedy of money or granting extensions specific performance and injunctive and other forms of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant equitable relief may be subject to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating equitable defenses and to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity discretion of the principal of and/or accrued interest on court before which any student loan extended by the Company or any of its Subsidiaries;
proceeding therefore may be brought; (d) any agreement by which the Company Except as set forth in Schedule 4.21(d) attached hereto, Seller is not in material default (and no event or any condition exists which, with notice, lapse of its Subsidiaries services student loans for any third party time or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any both would constitute a material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (idefault) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or obligations under any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Seller Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the CompanySeller, all there is no basis for any claim that any other parties to any of the Material Seller Contracts haveis in material default with respect to its obligations under such Seller Contracts; and (e) Except as set forth in Schedule 4.21(e) attached hereto, none of the Automotive Filter Companies is in all material respectsdefault (and no event or condition exists which, performed their with notice, lapse of time or both would constitute a material default) with respect to the obligations and are not in default under the Material Contracts, (iii) the of any Automotive Filter Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Automotive Filter Company or applicable Subsidiary, as the case may be, orContracts and, to the knowledge of the CompanySeller, there is no basis for any claim that any other party under to any of the Material Contracts, (v) neither the Automotive Filter Company or applicable Subsidiary, as the case may be, nor, Contracts is in material default with respect to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material its obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the such Automotive Filter Company or any Subsidiary under, any Material ContractContracts.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in on the attached Schedule 2.13, neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following typefollowing, whether written or oral:
(ai) any loan agreementpension, origination agreementprofit sharing, indenturestock option, credit facilityemployee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise) to employees, securitization agreementformer employees or consultants, mortgageor any other employee benefit plan or arrangement, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other or any collective bargaining agreement or instrument relating to any other contract with any union, labor organization or similar employee representative, or severance agreements, programs, policies or arrangements;
(iii) any contract for the borrowing employment of money any officer, individual employee or obtaining extensions of credit by other Person on a full-time, part-time, consulting or other basis;
(iii) any contract under which the Company or any of its Subsidiaries has advanced or loaned money to, guaranteed an amount for the benefit of or made an Investment in any other Person;
(iiiv) the loaning of any agreement or indenture relating to borrowed money or granting extensions other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or group of credit assets of the Company or any of its Subsidiaries;
(v) any lease or agreement pursuant to which the Company or any of its Subsidiaries is lessee of or holds or operates any property, real or personal, owned by any other than student loansparty, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $10,000;
(vi) any lease or agreement pursuant to which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company or any of its Subsidiaries;
(bvii) any agreement contract or group of related contracts, excluding any customer contract, with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $25,000 (and not otherwise disclosed pursuant to which this Section 2.13);
(viii) any contract or agreement (A) relating to the licensing of any Intellectual Property Right by the Company or any of its Subsidiaries has purchasedto a third party or by a third party to the Company or any of its Subsidiaries (other than licenses for generally available commercial, generated unmodified, “off the shelf” Software used solely for the internal use of the Company and its Subsidiaries for an aggregate fee, royalty or sold student loans other consideration for any such Software or group of related Software licenses of no more than $10,000), (B) for any Embedded Software or (C) affecting the ability of the Company or any of its Subsidiaries to use or enforce any Intellectual Property Right (including concurrent use agreements, settlement agreements and consent to use agreements);
(ix) any contract or agreement, excluding any customer contract, with a term of more than six months which is not terminable upon less than thirty (30) days’ notice without penalty and involves consideration in excess of Five Million Dollars ($5,000,000) in principal amount10,000 annually, except any contract or agreement related to Section 2.13(a)(vii);
(cx) any agreement relating contract or agreement, excluding any customer contract, regarding any material indemnification provided to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(dxi) any contract or agreement by which prohibiting the Company or any of its Subsidiaries services student loans from freely engaging in any business or competing anywhere in the world, granting most favored nation pricing or exclusive rights to a counterparty or requiring it to purchase all or substantially all of its requirements for a product or service from a particular Person;
(xii) any third party material non-disclosure or by which confidentiality agreements (other than agreements with Buyer);
(xiii) any third party services student loans for settlement, conciliation or similar agreement with any Governmental Authority or that will require the Company or any of its Subsidiaries;Subsidiaries to pay consideration after the execution date of this Agreement in excess of $10,000; or
(exiv) any open purchase order other agreement, excluding any customer contract, which is material to their operations or business prospects. The description of all contracts, leases, agreements and instruments identified on Schedule 2.13 identify all amendments and other modifications to such agreements.
(b) Each of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 2.13 (each, together with each contract for capital expenditures or agreement included on Schedule 2.11, 2.12 or 2.14, and any contract or agreement with Visa, PricewaterhousCoopers or Orrick or any of their respective subsidiaries, a “Material Contract”) is valid, binding and enforceable in accordance with its terms against the Company or any of its Subsidiaries and, to the Company’s and its Subsidiaries’ Knowledge, the other parties thereto and is in full force and effect. Except as set forth on Schedule 2.13, (i) the Company and its Subsidiaries have performed all material obligations required to be performed by them under each Material Contract and the Company and its Subsidiaries (with or without the lapse of time or the giving of notice, or both) are not in material breach or default thereunder, (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) under any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material ContractsContract, (iii) no Material Contract is currently subject to or, to the Company’s and its Subsidiaries’ Knowledge, expected to be subject to cancellation or any other material modification by the other party thereto, or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery, and (iv) the Company and its Subsidiaries do not have Knowledge of any material breach or applicable Subsidiaryanticipated breach by the other parties to any Material Contract. There are no renegotiations of, as the case may beor attempts or requests to renegotiate or outstanding rights to renegotiate, has not given or received any notice terms of default under any of the Material Contracts, .
(ivc) no event Buyer has occurred or condition exists that, been supplied with the giving a true and correct copy of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge each of the Companywritten contracts, any other party under any leases, agreements and instruments and an accurate description of each of the Material Contractsoral arrangements, (v) neither the Company or applicable Subsidiarycontracts and agreements which are referred to on Schedule 2.13, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts together with all amendments and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent an accurate description of any counterparty under, waivers or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractother changes thereto.
Appears in 1 contract
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreementSchedule 3.12(a) lists all Material Contracts (as hereinafter defined) as of the date hereof. For purposes of this Agreement, origination agreement“Material Contracts” shall mean, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing all Contracts, involving any payments in an amount in excess of money $1,000,000 within a twelve (12) month period; (ii) all acquisition, disposition, merger, asset or obtaining extensions of credit stock purchase or sale Contracts entered into by the Company or any of its Subsidiaries within six (6) years prior to the date hereof providing for continuing obligations or (ii) the loaning Liabilities of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
; (biii) any agreement pursuant to all Contracts which provide for, or relate to, the incurrence by the Company or any Subsidiary of its Subsidiaries has purchased, generated Indebtedness for borrowed money in an aggregate amount greater than $2,000,000; (iv) all guaranties of indebtedness of persons other than the Company or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan Subsidiary extended by the Company or any of its Subsidiaries;
; (dv) any agreement by which all Contracts that limit or purport to limit the Company or any of its Subsidiaries services student loans for from engaging in any third party line of business or by which in a business in a geographic area or during any third party services student loans for the Company or any period of its Subsidiaries;
time; (evi) any open purchase order material license or contract for capital expenditures other material Contract in respect of any Intellectual Property; (vii) all material joint venture, partnership or similar arrangements or agreements involving a sharing of profits, losses, costs or Liabilities by the Company or any of its Subsidiaries in excess with any other person; (viii) all collective bargaining Contracts and plant closing Contracts with any labor union, trade union or other employee representative, body or organization of One Million Dollars ($1,000,000);
(f) any agreement for the lease a group of real property by the Company or any employees of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct under which there are open or continuing obligations of their businesses or prohibits or otherwise restricts the Company or its Subsidiaries; (ix) all Contracts with any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
the Significant Customers and Suppliers (hexcluding purchase orders); (x) any joint venture, partnership, royalty or similar agreement involving written Contract providing for the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from indemnification by the Company or any of its Subsidiaries of any material Intellectual Property Right Person for any Liability, other than in the ordinary course of business; and (as defined in Section 3.19(c));
(kxi) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to “material contracts” within the Material Contracts have, meaning set forth in all material respects, performed their obligations and are not in default Item 601(b)(10) of Regulation S-K promulgated under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material ContractExchange Act.
Appears in 1 contract
Samples: Merger Agreement (Jarden Corp)
Contracts and Commitments. (a) Except as set forth in the Company SEC Reports or on Section 3.10 Documents, Schedule 3.11(a) of the Company Disclosure ScheduleSchedule sets forth a true, none correct and complete list of the following contracts (written or oral) to which the Company or any of its Subsidiaries a Subsidiary is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to and under which the Company or any of its Subsidiaries has purchasedany rights or obligations, generated contingent or sold student loans otherwise, (including every material amendment, modification or supplement to the foregoing): (i) any contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC on the date hereof, (ii) partnership or joint venture agreements, (iii) any material contracts of employment or consultancy with employees or contracts with any non-employee representatives or agents, (iv) any contracts or agreements which limit or restrict the Company or any Subsidiary or any employee thereof from engaging in any business in any jurisdiction, (v) agreements for the purchase, sale or lease of any properties or assets (other than in the ordinary course of business), (vi) all bonds, debentures, notes, loans, credit or loan agreements or commitments, mortgages, indentures or guarantees or other agreements or contracts relating to the borrowing of money involving amounts in excess of Five Million Dollars $1 million, (vii) agreements with unions, independent contractor agreements requiring payments by the Company in excess of $5,000,0001 million and leased or temporary employee agreements requiring payments by the Company in excess of $1 million, (viii) in principal amount;
leases of any real or personal property involving annual rent of $1 million or more, (cix) any agreement relating contract with any Governmental Authority, (x) license or royalty bearing contracts requiring payments by or to the extension Company in excess of insurance or the $200,000 per year except off-the-shelf software, (xi) any contract providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended for indemnification by the Company or any Subsidiary against any charge of its Subsidiaries;
infringement of Intellectual Property Rights, (dxii) any agreement by which contract with any director, officer or other Affiliate of the Company or any of its Subsidiaries services student loans for the Subsidiaries, (xiii) any third party voting, "standstill" or similar agreement, (xiv) any contract requiring payment by which any third party services student loans for or to the Company or any in excess of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures $1 million per year that is not terminable by the Company or its Subsidiaries on notice of 90 days or less, (xv) any contract granting a right of first refusal or first negotiation, (xvi) all other contracts, agreements or commitments involving payments made by or to the Company or a Subsidiary of $1.0 million or more including customer contracts and contracts with suppliers and (xvii) any commitment or agreement to enter into any of the foregoing (individually, a "Material Contract" and collectively, "Material Contracts"). Except for agreements or commitments disclosed in the Company SEC Documents or on Schedule 3.11(a) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating is a party to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the business of the Company or any of its Subsidiaries. The Company has heretofore made available to Parent complete and correct copies of each Material Contract in existence as of the date hereof, together with any and all written contracts material amendments and commitments listed in Section 3.10 supplements thereto and material "side letters" and similar documentation relating thereto. To the Company's Knowledge, except as set forth on Schedule 3.11(a) of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 none of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) contracts to which the Company or applicable Subsidiaryany of its Subsidiaries is a party, and no bid outstanding as of the date of this Agreement (if accepted or awarded), would result in a Loss Contract, in each case may bein the reasonable judgment of the Company's management as of the date of this Agreement. For purposes of this Agreement, and"Loss Contract" means any contract with a total contract value in excess of $250,000 that, to the knowledge Knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractnegative gross margin.
Appears in 1 contract
Samples: Merger Agreement (Bha Group Inc)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on (i) Section 3.10 4.1(n)(i) of the Company Disclosure Schedule, none Schedule sets forth an accurate and complete list of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument each of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement oral or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant written Contracts to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third Seller is a party or by which its assets are bound (collectively, “Material Contracts”):
(A) any third party services student loans for the Company or any of its SubsidiariesReal Property Lease;
(eB) any open purchase order Contract (or contract group of related Contracts) for capital expenditures by the Company lease or license of personal property (including Intellectual Property) to or from any Person;
(C) agreements or series of its Subsidiaries related agreements with customers or distributors involving aggregate payments to Seller in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) 50,000 in any twelve (12)-month period following period;
(D) any Contract (or group of related Contracts) for the date purchase or sale of this Agreementraw materials, commodities, supplies, products or other personal property (including Intellectual Property) or for the furnishing or receipt of services involving aggregate payments by Seller in excess of $50,000 in any twelve (12)-month period;
(E) any Contract concerning a partnership or joint venture;
(F) any Contract (or group of related Contracts) under which Seller has created, incurred, assumed or guaranteed any Indebtedness, or under which Seller has imposed or become subject to any Encumbrance on any of its assets, tangible or intangible;
(G) any Contract concerning non-disclosure, confidentiality, non-competition or non-solicitation;
(H) any Contract between Seller and any of Seller’s other Affiliates;
(I) any profit sharing, equity option, equity purchase, equity appreciation, deferred compensation, severance, change of control or other material plan or arrangement for the benefit of the current or former officers, directors, managers, employees or independent contractors of Seller;
(J) any collective bargaining agreement;
(K) any Contract for the employment of any individual on a full-time, part-time, consulting, or other basis or that provides for severance benefits;
(L) any Contract under which Seller has advanced or loaned any amount to Seller’s officers, directors, managers or employees;
(M) any Contract under which Seller has made any advance or loan to any other Person;
(N) any settlement, conciliation, or similar Contract;
(O) any agreement that (i) limits the freedom of Seller to compete in any line of business or with any Person or in any area (including any agreement that contains any non-competition or non-solicitation provision) or that would so limit the freedom of Purchaser or its Affiliates after the Closing, (ii) contains exclusivity obligations or restrictions binding on Seller or that is otherwise material to the Company would be binding on Purchaser or any of its Subsidiaries. The Company has made available Affiliates after the Closing or (iii) contains most favored nations provisions binding on the Business; and
(P) Contract, not otherwise identified above, pursuant to Parent copies of all written contracts and commitments listed in Section 3.10 which Seller is obligated as of the Company Disclosure ScheduleClosing Date to make payments in excess of $25,000 during the 12-month period following the Closing Date.
(ii) Seller has delivered to Purchaser a true, summaries complete and correct copy of all each Material Contract and a written summary setting forth the material terms and conditions of each oral contracts Material Contract. With respect to each such Contract: (A) such Contract is legal, valid, binding, enforceable and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect; (B) Seller is not, (ii) the Company and to Seller’s Knowledge, no other party is in breach or applicable Subsidiarydefault, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred that with notice or condition exists that, with the giving lapse of notice, the passage of time, time or both, both would constitute a breach or default by the Company or applicable Subsidiarypermit termination, as the case may be, or, to the knowledge of the Company, any other party modification or acceleration under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts such Contract; and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving no party has repudiated any provision of notice such Contract or threatened to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material terminate such Contract.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:EXECUTION COPY
(a) The Assumed Contracts shall consist of all written or oral contracts to which any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement Seller is a party or instrument relating to is bound and which (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant are to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating be performed in whole or in part after the Closing Date and (ii) relate to the licensing Business, which include, without limitation, the contracts listed on Disclosure Schedule 3.07, or with respect to those contracts marked with an asterisk, such portion of the contract that relates to the Business. All such contracts with the following characteristics are listed on Disclosure Schedule 3.07:
(i) requiring the expenditure of funds for goods or from the Company or any services in excess of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c))$2,500;
(kii) any contract marketing agreement or understanding including any chain marketing agreement, calendar marketing agreement, agreement with any Governmental Authorityfor scoreboard or sign display, promotional discount letter, special arrangements, whether providing for discounts, incentive awards or otherwise;
(liii) restricting the right of any material salesSeller to compete, marketing whether by restricting territories, customers or advertising agreementotherwise, in any line of business or territory;
(miv) requiring any employment contractSeller to purchase its requirements for any goods or services from any one or more parties;
(nv) with any student loan guaranty officer, director, or surety agency agreementgreater-than-five-percent-shareholder of any Seller with any spouse, in-law, child, sibling or parent of any such person or with any company or other organization in which any of the foregoing has, to Sellers' knowledge, a material direct or indirect financial interest;
(vi) relating to participation in a cooperative, partnership or joint venture;
(vii) imposing confidentiality requirements on any Seller;
(viii) for political contributions or for charitable contributions involving a commitment to make contributions for more than one year or involving more than $2,500 in the aggregate or individually; or
(oix) any other contract, agreement or commitment relating to the distribution of products.
(b) There are no (i) consignments or "sale or return" arrangements; (ii) any agreements requiring any Seller to share any profits, revenues, cash flows or Taxes that EXECUTION COPY relate to the Business; or (iii) guarantees of the indebtedness of any customer of, or supplier to, the Business, or loans or advances other than accounts receivable to such persons or entities.
(c) No Seller has received any notice of cancellation or termination in connection with respect to which any Assumed Contract. No party has repudiated any portion of any Assumed Contract. Each Assumed Contract is enforceable in all material respects in accordance with its terms in a manner that obtains for, or imposes upon, the aggregate amount that could reasonably be expected to be paid parties the primary benefits and obligations of such agreements.
(d) Upon the consummation of the transaction contemplated by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is Assumed Contract will remain in full force and effecteffect on substantially similar terms.
(e) To Sellers' knowledge, there are no pending or threatened bankruptcy, insolvency, or similar proceedings with respect to any party to any Assumed Contract.
(iif) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no No event has occurred that (whether with or condition exists that, with the giving of without notice, lapse of time or the passage happening or occurrence of time, or both, any other event) would constitute a default thereunder by the Company any Seller or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, by any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Assumed Contract.
(g) With respect to any Assumed Contracts that were originally between Consolidated and a third party, such Assumed Contracts have been validly assigned by Consolidated to either or both Sellers.
Appears in 1 contract
Samples: Asset Acquisition Agreement (Coca Cola Bottling Co Consolidated /De/)
Contracts and Commitments. (a) Except as set forth in on Schedule 5.10(a) (and other than a Plan), neither the Company SEC Reports nor any of its Subsidiaries is a party to any:
(i) collective bargaining agreement with any labor union, labor organization or on Section 3.10 works council representing employees of the Company Disclosure Scheduleor any of its Subsidiaries;
(ii) Contract with any officer, none director or employee of the Company or any of its Subsidiaries that (A) provides for base annual compensation in excess of $250,000, (B) provides for the payment of compensation or benefits upon or in connection with the consummation of the transactions contemplated by this Agreement or (C) provides for the payment of severance, termination or notice payments or benefits (other than statutory payments and benefits required by Law) upon a termination of the applicable person’s employment or service with the Company or any of its Subsidiaries;
(iii) any settlement, conciliation or similar agreement with any Governmental Body or similar Contract pursuant to which (a) the Company or any of its Subsidiaries will have any outstanding payment obligation in excess of $20,000 after the date of this Agreement, or (b) material non-monetary obligations will be imposed on either the Company or its Subsidiaries after the date of this Agreement;
(iv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries (excluding, for the avoidance of doubt, in respect of any customs, licensing, bid, surety or performance bonds, or any similar instruments);
(v) guaranty of any obligation for borrowed money or other guaranty;
(vi) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $100,000;
(vii) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds $100,000;
(viii) other than purchase orders or statements of work entered into in the ordinary course of business, Contract or group of related Contracts with any Material Customer;
(ix) other than purchase orders or statements of work entered into in the ordinary course of business, Contract or group of related Contracts with any Material Supplier;
(x) material Contracts relating to the licensing of material Intellectual Property by the Company or any of its Subsidiaries to a third-party or by a third-party to the Company or any of its Subsidiaries, other than (A) licenses for commercially available, Off-The-Shelf software or (B) non-exclusive licenses granted in the ordinary course of business;
(xi) Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or material line of business entered into since the Lookback Date or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or material line of business;
(xii) all Contracts that grant a third Person any right of first refusal or right of first offer or that otherwise purport to limit the ability of the Company or any of its Subsidiaries to own, sell, transfer, pledge or otherwise dispose of any material portion of the assets or business of the Company or any of its Subsidiaries (other than the Ancillary Agreements) or that purports to limit the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xiii) Contracts with material data vendors under which the Company or any of its Subsidiaries has acquired data that is used in any of the Company’s or any of its Subsidiaries’ models that are made available as of the date of this Agreement;
(xiv) any Contract providing for the development, modification or delivery, deposit into escrow, or release from escrow, of any Company Intellectual Property, independently or jointly, by or for the Company or any of its Subsidiaries (other than Contracts from employment and independent contractor agreements) or that otherwise materially and adversely affects the use or enforcement by the Company or any of its Subsidiaries of any Company Intellectual Property (including any settlement agreement, covenant not to assert and consent to use), in each case, other than Contracts with employees or any contingent workers that are on the Company’s standard forms;
(xv) all Contracts to which the Company or any of its Subsidiaries is a party to that provide for any joint venture, partnership or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by similar arrangement with the Company or any such Subsidiary, excluding the Governing Documents of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of and its Subsidiaries;
(bxvi) all Leases;
(xvii) all Contracts between the Company and/or its Subsidiaries, on the one hand, and any agreement pursuant Company Affiliated Person, on the other hand;
(xviii) all Government Contracts involving any payments to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);500,000 per annum; and
(fxix) any agreement for commitment to enter into any Contract of the lease of real property by the Company or any of its Subsidiaries;type described above.
(gb) any contract or agreement that subjects the Company or any As of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreementhereof, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Contracts listed on Schedule 5.10(a) (each, a “Material Contracts Contract”) is in full force and effect, (ii) and is a legal, valid and binding obligation of the Company or applicable Subsidiary, as a Subsidiary of the case may beCompany which is party thereto, and, to the knowledge of the Company, all of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Except as set forth on Schedule 5.10(b), as of the date hereof, neither the Company nor any Subsidiary of the Company (as applicable) is in material default (with or without notice or lapse of time or both) under any Material Contract, and, to the knowledge of the Company, the other party to each Material Contracts have, in all material respects, performed their obligations and are Contract is not in material default under the Material Contracts, (iiiwith or without notice or lapse of time or both) the Company or applicable Subsidiarythereunder. Except as set forth on Schedule 5.10(b), as the case may be, has not given or received any notice of default under any of the Material Contractsdate hereof, (iv) no event has occurred that with the lapse of time or condition exists that, with the giving of notice, the passage of time, notice or both, both would constitute a material breach or default by (with or without notice or lapse of time or both) on the part of the Company, or any Subsidiary of the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to Contract. To the knowledge of the Company, as of the date hereof, (i) no party to any other Material Contract has exercised any termination rights with respect thereto, and (ii) no party has waived, or extended the time for the performance of, given written notice of any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise dispute with respect to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract. The Company has made available to Parent true and correct copies of each Material Contract (including all amendments, exhibits, attachments, waivers and other changes thereto).
Appears in 1 contract
Contracts and Commitments. Except as set (a) Schedule 3.9(a) sets forth in the Company SEC Reports or on Section 3.10 a complete and correct list of all agreements of the Company Disclosure Schedule, none following types to which either of the Company or any of its Subsidiaries Parent Parties is a party to or bound by any agreement(collectively, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to "Parent Material Contracts"): (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or agreements that would be required to be filed as exhibits to Required Reports; (ii) agreements for the loaning purchase, sale or distribution of money products, materials, commodities, supplies or granting extensions other personal property, or for the furnishing or receipt of credit services, the performance of which will extend over a period of more than one year or involve consideration payable by any party in excess of $10,000 in any one year; (iii) loan agreements, indentures, letters of credit, mortgages, notes and other debt instruments; (iv) agreements containing any "change of control" provisions; (v) agreements, arrangements or understandings with any shareholder, employee, director or officer either of the Parent Parties or with any affiliate of any thereof; (vi) agreements prohibiting either of the Parent Parties from engaging or competing in any line of business or limiting such competition; (vii) joint venture, partnership and similar agreements; (viii) acquisition or divestiture agreements relating to the (A) sale or purchase of assets or stock either of the Parent Parties (other than student loanssales of inventory in the ordinary course of business) by or (B) the Company purchase of assets or stock of any other person (other than the purchase of its Subsidiaries;inventory, supplies or equipment in the ordinary course of business); (ix) brokerage, finder's or financial advisory agreements; (x) guarantees of indebtedness for borrowed money of any person; (xi) reseller, agent and dealer agreements; (xii) licensing and rights arrangements for any Parent Intellectual Property; and (xiii) agreements that, individually or together with one or more related agreements, are material to the assets, financial condition, business, prospects or operations either of the Parent Parties.
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity All of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries Parent Material Contracts are valid and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 binding agreements of the Company Disclosure ScheduleParent, summaries of all oral contracts enforceable in accordance with their terms, and commitments listed in Section 3.10 there is no default by either of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, Parent Parties or, to the knowledge of the CompanyParent, any other party under any such Parent Material Contract except as set forth on Schedule 3.9(b). None of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, other parties to the knowledge Parent Material Contracts has notified either of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent Parent Parties of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any intention to terminate a Parent Material Contract.
(c) True and complete copies of all Parent Material Contracts have been delivered to the Target or made available for inspection.
Appears in 1 contract
Contracts and Commitments. Except as set forth in Section 3.18 of the Seller Disclosure Letter, neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following typeto:
(a) any loan agreementpartnership agreements or joint venture agreements which require a payment, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed or delivery of trust, bond, note, guaranty, surety, trust agreement and/or other agreement assets or instrument relating to (i) services beyond the borrowing of money or obtaining extensions of credit 2006-2007 ski season and which are not terminable by the Company on 30 days or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by less notice without penalty to the Company or any of its Subsidiaries, or which contain exclusivity arrangements which will be binding upon Affiliates of the Company (other than a Subsidiary thereof) following the Closing;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchasedwould be required to pay severance to any director, generated officer, employee or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amountconsultant;
(c) any material agreement with another person or entity limiting or restricting the ability of the Company or its Subsidiaries to enter into or engage in any market or line of business;
(d) any material brokerage agreements;
(e) any agreements for the sale of any of the assets of the Company or its Subsidiaries other than in the ordinary course of business or for the grant to any person or entity of any preferential rights to purchase any of its assets;
(f) any agreement relating to the extension acquisition by the Company or its Subsidiaries of insurance any operating business or the providing assets or capital stock of any guaranteeother corporation, pursuant entity or business entered into during the last twelve (12) months;
(g) any material agreements relating to the Higher Education Act incurrence, assumption, surety or guarantee of 1965any indebtedness other than ASC-Level Financings;
(h) any material agreements (other than agreements granting rights to use readily available commercial Software and having an acquisition price of less than $50,000 in the aggregate for all such agreements and agreements allowing the use of Company trademarks, as amended tradenames and the like in connection with promotional activities) (i) granting or obtaining any right to use any Intellectual Property or (ii) restricting the “Higher Education Act”), by any federal agency or other entity rights of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries, or permitting other Persons, to use or register any Intellectual Property of the Company;
(di) any agreement by material agreements under which the Company or any of its Subsidiaries services student has made advances or loans for to any third party entity or by individual (which any third party services student loans for shall not include advances made to an employee of the Company or any in the ordinary course of its Subsidiaries;business consistent with past practice); or
(ej) except for agreements described in Section 3.18(a), any open purchase order other agreement (or contract for capital expenditures by group of related agreements) the performance of which presently requires aggregate payments be made to or from the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for 100,000 per year. Each of the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects contracts to which the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries is a party and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected is required to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in set forth on Section 3.10 3.18 of the Company Seller Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto Letter (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 , a true and complete copy of the Company Disclosure Schedule (i) each of which has been delivered or made available to the Material Contracts Purchasers prior to the date hereof is in full force and effecteffect and is the legal, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge valid and binding obligation of the Company, all other parties enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). With respect to each Material Contract, neither the Company nor its Subsidiaries nor, to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any Knowledge of the Company, any other party, is in material breach of violation of, or default under, any such Material ContractsContract, (iv) and no event has occurred or condition exists thatoccurred, with is pending or, to the Knowledge of the Company, is threatened, which, after the giving of notice, the passage with lapse of time, or bothotherwise, would constitute a material breach or default by the Company or applicable Subsidiary, as the case may be, its Subsidiaries or, to the knowledge Knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any such Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure ScheduleSchedule 4.11 hereto, none of the Company or any of its Subsidiaries Seller is not a party to or bound by any agreementby, contractwhether written or oral, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to any: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) contract for the employment of any officer, individual employee or other person on a full-time, part-time or consulting basis or any severance agreements; (iii) agreement or indenture relating to the borrowing of money or obtaining extensions of credit by the Company to mortgaging, pledging or otherwise placing a Lien on any of the Purchased Assets; (iv) license or royalty agreements; (v) lease or agreement under which Seller is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; (vi) lease or agreement under which Seller is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it for which annual rental exceeds $50,000; (vii) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than six months or involves a sum in excess of $50,000 or which may not be terminable with less than six months' notice; (viii) contract relating to the distribution, marketing or sales of its Subsidiaries products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000; (ix) franchise agreements, (x) agreements, contracts or understandings pursuant to which Seller subcontracts work to third parties; (xi) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or (iixii) any other agreement which Seller deems material to the loaning Business taken as a whole whether or not entered into in the ordinary course of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;business.
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule 4.11, (i) each all of the Material Assumed Contracts is are in full force and effect, have not been amended or modified as of the Closing, and are valid, binding and enforceable in accordance with their respective terms, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of Seller, no Assumed Contract has been breached or canceled by the Companyother party since December 31, all other parties to the Material Contracts have1995, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) Seller has, to its knowledge, performed all of the Company or applicable Subsidiary, as obligations required to be performed by Seller in connection with the case may be, has Assumed Contracts and is not given or received in receipt of any notice claim of default under any such contract or commitment.
(c) Seller has provided Buyer with a true and correct copy of the Material all Assumed Contracts, (iv) no event and has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, made available to the knowledge of the Company, any other party under any of the Material Buyer those written contracts referred to on Schedule 4.11 which are not Assumed Contracts, (v) neither the Company in each case together with all amendments, waivers or applicable Subsidiaryother changes thereto. To Seller's knowledge, as the case may be, nor, Schedule 4.11 contains an accurate and complete description of all material terms of all oral contracts referred to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contracttherein.
Appears in 1 contract
Contracts and Commitments. (a) Except for any Leases or guarantees entered into in connection with any Leases, or as set forth in on the Company SEC Reports or on Section 3.10 of the Company Disclosure Contracts and Commitments Schedule, none of and except for agreements entered into by any Group Company after the date hereof in accordance with Section 8.01, no Group Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following typewritten:
(ai) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement material Contract or instrument indenture relating to (i) the borrowing of money or obtaining extensions to mortgaging, pledging or otherwise placing a material Lien on any material portion of credit the assets of the Group Companies;
(ii) material guaranty of any obligation for borrowed money or other material guaranty;
(iii) lease or Contract under which it is lessee, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $1,000,000 (excluding the Leases);
(iv) Contract that is a settlement, conciliation or similar agreement with any Governmental Body pursuant to which any Group Company will have any material outstanding obligations after the date of this Agreement;
(v) Contract (or group of related Contracts) with any (A) Specified Customer or (B) Specified Supplier;
(vi) Contract which (A) imposes a restriction on the geographies or businesses in which the Companies may operate the Business (including covenants not to compete or conduct business in any territory) other than non-exclusive license agreements entered into in the Ordinary Course of Business (B) contains exclusivity obligations or similar restrictions binding on the Company or any of its Subsidiaries or (ii) the loaning that would be binding on Purchaser or any of money or granting extensions of credit its Affiliates (other than student loans) by the Company or any of its Subsidiaries) after Closing, including granting any exclusive rights with respect to any Owned Intellectual Property, or (C) contains exclusivity obligations or similar restrictions binding on any counterparty or (D) provides “most favored nation” or similar provisions;
(vii) lease or Contract under which it is lessor of or permits any third party to hold or operate any personal property for which the annual rental exceeds $500,000 (excluding the Leases);
(viii) Contract or group of related Contracts, excluding purchase orders, with the same party for the purchase of products or services that provide for annual payments by a Group Company in excess of $2,500,000 during the trailing twelve (12) month period ending on the date of the Latest Balance Sheet and cannot be cancelled by a Group Company without penalty or without more than sixty (60) days’ notice;
(ix) Contracts for the employment of, or the provision of consulting services by, any officer, director, employee, individual independent contractor or other natural Person on a full-time, part-time, consulting or other basis (A) providing target annual cash compensation in excess of $325,000 or (B) not terminable upon less than thirty (30) days’ notice and without any liability to the Group Companies;
(x) Contracts pursuant to which a Group Company (A) obtains a license or other right to use, or covenant not to be sued, under any Licensed Intellectual Property, except for rights and/or licenses to Off-The-Shelf Software or Open Source Software or (B) grants a license or other right to use, or covenant not to be sued, under any Owned Intellectual Property, in each case of clauses (A) and (B), other than (1) non-exclusive licenses granted to or from customers in the Ordinary Course of Business, (2) confidentiality agreements, non-disclosure agreements and employee agreements on substantially the Company’s form as has previously been provided to Purchaser, or (3) agreements in which the licenses or rights to Intellectual Property granted are merely incidental to the transaction contemplated and granted on a non-exclusive basis (provided, that, agreements referenced in clauses (1)-(3) shall be deemed to be Material Contracts);
(xi) separation, change in control, retention, severance (or any Contract providing for the provision of severance) or similar Contracts with any current or former (to the extent of any ongoing liability) employee, officer, director or independent contractor of the Group Companies;
(xii) Contracts relating to any completed material business acquisition by any Group Company within the last two (2) years; or
(xiii) other than purchase and sale orders received by the Group Companies in the Ordinary Course of Business, any written contractual obligation (or group of related contractual obligations) for the purchase or sale of inventory, raw materials, commodities, supplies, goods, products, equipment or other personal property, in each case, with any Specified Customer or Specified Supplier.
(b) any agreement pursuant The Purchaser has been supplied with a true and correct copy of all written Contracts that are required to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions be disclosed on the competitive conduct Contracts and Commitments Schedule as of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto Agreement (collectively, the “Material Contracts”).
(c) No Group Company has, in any material respect, violated or breached, or committed any default under, any Material Contract. Except as disclosed in Section 3.10 To the knowledge of the Company Disclosure Schedule (i) each Company, no other Person has materially violated or breached, or committed any material default under, any Material Contract. No event has occurred and is continuing through any Group Company’s actions or inactions that will result in a material violation or breach of any of the provisions of any Material Contracts Contract, and each Contract is in full force and effect. To the Company’s knowledge, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge none of the Company, all other parties to any such Contract is (with or without the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company lapse of time or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a ) in breach or default by in any material respect thereunder. As of the Company or applicable Subsidiary, as the case may be, ordate hereof, to the knowledge Company’s knowledge, other than as disclosed on the Contracts and Commitments Schedule, neither the Company nor any Company Subsidiary has received written notice to the effect that any customer with purchases from the Company and or Company Subsidiaries in excess of $250,000 for the Companytwelve-month period ending on the date hereof intends to cancel or terminate any such Contract or relationship or materially reduce purchases thereunder, or to exercise or not to exercise any option to renew thereunder, and neither the Company nor any Company Subsidiary has received notice to the effect that any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require Contract intends to breach or attempt to materially and detrimentally alter the consent terms of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material such Contract.
Appears in 1 contract
Samples: Equity Purchase and Merger Agreement (Roper Technologies Inc)
Contracts and Commitments. (a) Except as set forth in on Schedule 3.09(a), neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following typewritten:
(ai) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other (A) collective bargaining agreement or instrument contract with any trade union or other labor organization or (B) Contract with any current or former employee, director or independent contractor providing for future severance, change in control, retention, stay-pay or similar payments;
(ii) written bonus, pension, profit sharing, stock option, employee stock purchase, retirement or other form of deferred compensation plan, other than as described in Section 3.13(a) or the Disclosure Schedules relating thereto;
(A) Contract for the employment of any officer, individual employee or other person on a full-time, part-time or other basis providing for fixed compensation in excess of or equal to $125,000 per annum (other than standard offer letters for at-will employment) or relating to loans to officers, directors or Affiliates pursuant to which it has any material obligation or (iB) Contract with any independent contractor or consultant providing for fixed compensation in excess of or equal to $125,000 per annum;
(iv) (A) agreement or indenture relating to the borrowing of money or obtaining extensions to mortgaging, pledging or otherwise placing a Lien on any material portion of credit their assets, or (B) Contract under which it has advanced or loaned any other Person, that is not an Affiliate of the Company, amounts exceeding, in the aggregate, $100,000;
(v) guaranty of any obligation for Indebtedness or other material guaranty;
(vi) settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which the Company or its Subsidiaries will be required, after the date of this Agreement, to satisfy any monetary or material non-monetary obligations;
(vii) lease or agreement under which it is lessee or lessor of, or holds or operates any material personal property owned by any other party, or permits any third party to hold or operate any material personal property owned or controlled by it, in each case for which the annual rental exceeds $150,000;
(viii) Leased Real Property lease;
(ix) agreements relating to any completed material business acquisition by the Company or any of its Subsidiaries within the last three (3) years or pursuant to which the Company or any of its Subsidiaries has remaining obligations or liabilities;
(iix) Contract pursuant to which (A) the loaning Company or any of money its Subsidiaries are licensed or granting extensions of credit otherwise permitted by a third party to use any Intellectual Property owned by such third party (other than student loansnon-exclusive licenses to the Company or any of its Subsidiaries of commercially available, unmodified "off the shelf" software where the aggregate fee, royalty or other consideration (including maintenance fees) for any such software or group of related software licenses is no more than $25,000 annually, or (B) any third party is licensed or otherwise permitted to use any Intellectual Property owned or held exclusively by the Company or any of its Subsidiaries;
(bxi) any agreement pursuant to Contract which limits or prohibits the Company or any of its Subsidiaries has purchased, generated from competing or sold student loans freely engaging in excess of Five Million Dollars ($5,000,000) business anywhere in principal amountthe world;
(cA) joint venture, partnership or similar agreement related to the creation or development of Intellectual Property by or for the Company or any of its Subsidiaries, or (B) Contract providing for the assignment, ownership, creation or development of any Intellectual Property;
(A) Contract that limits the freedom or right of the Company or any of its Subsidiaries to use Intellectual Property owned by the Company or any of its Subsidiaries, (B) any settlement contract, consent-to-use or settlement agreement relating to the extension of insurance Intellectual Property, or the providing of (C) any guarantee, pursuant Contract granting any exclusive rights to any third party with respect to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended Intellectual Property owned by the Company or any of its Subsidiaries;
(dxiv) any agreement Contract which is not terminable by which the Company or any applicable Subsidiary upon less than sixty (60) days' notice without penalty or additional liability and involves payments in excess of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries$250,000 annually;
(exv) any open purchase order other Contract which involves a consideration in excess of $150,000 annually; or
(xvi) any other Contract that is outside the ordinary course of business which involves a consideration in excess of $10,000 executed within the thirty (30) days prior to the date hereof.
(b) The Company has delivered or contract for capital expenditures made available to the Purchaser true and correct copies of all written Material Contracts and an accurate description of all oral arrangements or Material Contracts that are required to be set forth on Schedule 3.09(a), together with all material amendments, waivers or other changes thereto.
(c) Except as set forth on Schedule 3.09(c), (i) each of the Company and its Subsidiaries has performed in all material respects all material obligations required to be performed by it and is not in material default under, in material breach of, nor in receipt of any written Claim of material default or material breach under, any Material Contract; (ii) no event has occurred which, with the passage of time or the giving of notice or both, would result in a material default or material breach by the Company or any of its Subsidiaries in excess under any Material Contract; and (iii) as of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, andhereof, to the knowledge of the Company, all Company there is no material breach or threatened material breach by (or non-ordinary course notice of non-renewal or termination from (other than any automatic non-renewals or terminations in accordance with such Material Contract's terms)) the other parties to any Material Contract. Except for those that have terminated or expired in accordance with their terms, all of the Material Contracts haveand plans set forth on Schedule 3.09(a) or required to be set forth on Schedule 3.09(a) (collectively, in all material respects, performed their obligations and are not in default under the "Material Contracts") are valid and in full force and effect and constitute legal, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material valid and binding obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any such Subsidiary, and are enforceable against the Company or such Subsidiary underin accordance with their respective terms, any Material Contractand, to the Company's knowledge, constitute legal, valid and binding obligations of the other party or parties thereto, enforceable against such party or parties in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors' rights and general principles of equity affecting the availability of specific performance and other equitable remedies.
Appears in 1 contract
Samples: Membership Unit Purchase Agreement (U.S. Silica Holdings, Inc.)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement or as set forth in on the attached "Contracts Schedule" or the attached "Employee Benefits Schedule," neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries Subsidiary is a party to or bound by any agreement, contract, commitment written or other written instrument of the following typeoral:
(a) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any loan agreementother employee benefit plan or arrangement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other or any collective bargaining agreement or instrument relating to (i) the borrowing of money any other contract with any labor union, or obtaining extensions of credit by the Company severance agreements, programs, policies or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiariesarrangements;
(b) contract for the employment of any agreement pursuant to which the Company officer, individual employee or any of its Subsidiaries has purchasedother Person on a full-time, generated part-time, consulting or sold student loans other basis providing annual compensation in excess of Five Million Dollars ($5,000,000) 100,000 or contract relating to loans to officers, directors or Affiliates which, in principal amountthe aggregate, exceed $50,000;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by contract under which the Company or Subsidiary has advanced or loaned any of its Subsidiariesother Person amounts in the aggregate exceeding $50,000;
(d) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any agreement by which material asset or material group of assets of the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of and its Subsidiaries;
(e) guarantee of any open purchase order or contract for capital expenditures obligation in excess of $25,000 (other than by the Company of a Wholly-Owned Subsidiary's debts or any a guarantee by a Subsidiary of its Subsidiaries in excess of One Million Dollars ($1,000,000the Company's debts or another Subsidiary's debts);
(f) lease or agreement under which the Company or any agreement Subsidiary is lessee of or holds or operates any property, real or personal, owned by any other party, except for the any lease of real or personal property under which the aggregate annual rental payments do not exceed $50,000;
(g) other than as set forth on the Assets Schedule, lease or agreement under which the Company or any Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third partiesSubsidiary;
(h) any joint venture, partnership, royalty contract or similar agreement involving group of related contracts with the sharing same party or group of profits and/or expenses between affiliated parties the Company or any performance of its Subsidiaries and any third partywhich involves consideration in excess of $100,00 per annum;
(i) any business acquisition assignment, license, indemnification or divestiture agreement (or any letter of intent, term sheet or draft agreement relating with respect to any such pending transaction)intangible property (including, without limitation, any Intellectual Property Rights) having a value in excess of $50,000;
(j) any contract relating in whole express warranties with respect to its services rendered or in part to the licensing to its products sold or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c))leased;
(k) agreement under which it has granted any contract or agreement with Person any Governmental Authorityregistration rights (including, without limitation, demand and piggyback registration rights);
(l) any material sales, marketing distribution or advertising franchise agreement;
(m) contract or agreement prohibiting it from freely engaging in any employment contract;business or competing anywhere in the world; or
(n) any student loan guaranty or surety agency agreement; orother agreement which is material to its operations and business prospects and involves a consideration in excess of $50,000 annually.
(oii) All of the contracts, agreements and instruments set forth on the Contracts Schedule are valid, binding and enforceable in accordance with their respective terms. The Company and each Subsidiary have performed all obligations required to be performed by them under the contracts, agreements and instruments listed on the Contracts Schedule and are not in default under or in breach of nor in receipt of any other claim of default or breach under any contract, agreement or commitment (i) instrument listed on the Contracts Schedule; no event has occurred which with respect to which the aggregate amount that could reasonably be expected to be paid passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company or any Subsidiary under any contract, agreement or instrument to which the Company or any Subsidiary is subject; neither the Company nor any Subsidiary has any present expectation or intention of its Subsidiaries would exceed One Million Dollars not fully performing all such obligations; and neither the Company nor any Subsidiary has knowledge of any breach or anticipated breach by the other parties to any contract, agreement, instrument or commitment listed on the Contracts Schedule.
($1,000,000iii) in The Contracts Schedule shall list each Burger King Franchise Agreement and shall disclose the termination date of each such agreement. The Company has neither any twelve (12)-month period following knowledge nor any reason to believe that any franchise agreement terminating within five years after the date of this AgreementAgreement will not, or if so requested by the Company, be renewed on substantially similar terms and without a cost per restaurant in excess of $40,000 for the successor franchise fee payable to Burger King Corporation in connection with such renewal.
(iiiv) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies the Investors' special counsel a true and correct copy of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force written instruments, plans, contracts and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge agreements and an accurate description of each of the Companyoral arrangements, contracts and agreements which are referred to on the Contracts Schedule, together with all amendments, waivers or other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractchanges thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in on Schedule 3.09(a), neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following typewritten:
(ai) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other (A) collective bargaining agreement or instrument contract with any trade union or other labor organization or (B) Contract with any current or former employee, director or independent contractor providing for future severance, change in control, retention, stay-pay or similar payments;
(ii) written bonus, pension, profit sharing, stock option, employee stock purchase, retirement or other form of deferred compensation plan, other than as described in Section 3.13(a) or the Disclosure Schedules relating thereto;
(iii) (A) Contract for the employment of any officer, individual employee or other person on a full-time, part-time or other basis providing for fixed compensation in excess of $150,000 per annum (other than standard offer letters for at-will employment) or relating to loans to officers, directors or Affiliates pursuant to which it has any material obligation or (iB) Contract with any independent contractor or consultant providing for fixed compensation in excess of $150,000 per annum;
(iv) (A) agreement or indenture relating to the borrowing of money or obtaining extensions to mortgaging, pledging or otherwise placing a Lien on any material portion of credit their assets, or (B) Contract under which it has advanced or loaned any other Person, that is not an Affiliate of the Company, amounts exceeding, in the aggregate, $100,000;
(v) guaranty of any obligation for Indebtedness or other material guaranty;
(vi) settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which the Company or its Subsidiaries will be required, after the date of this Agreement, to satisfy any monetary or material non-monetary obligations;
(vii) lease or agreement under which it is lessee or lessor of, or holds or operates, any material personal property owned by any other party, or permits any third party to hold or operate any material personal property owned or controlled by it, in each case for which the annual rental exceeds $150,000;
(viii) agreements relating to any completed material business acquisition by the Company or any of its Subsidiaries within the last three (3) years or pursuant to which the Company or any of its Subsidiaries has remaining obligations or liabilities;
(iiix) Contract pursuant to which (A) the loaning Company or any of money its Subsidiaries are licensed or granting extensions of credit otherwise permitted by a third party to use any Intellectual Property owned by such third party (other than student loansnon-exclusive licenses to the Company or any of its Subsidiaries of commercially available “off the shelf” software that is not material to the Business), or (B) any third party is licensed or otherwise permitted to use any Intellectual Property owned or held exclusively by the Company or any of its Subsidiaries;
(bx) any agreement pursuant to Contract which limits or prohibits the Company or any of its Subsidiaries has purchased, generated from competing or sold student loans freely engaging in excess of Five Million Dollars ($5,000,000) business anywhere in principal amountthe world;
(cA) joint venture, partnership or similar agreement related to the creation or development of Intellectual Property by or for the Company or any of its Subsidiaries, or (B) Contract providing for the assignment, ownership, creation or development of any Intellectual Property;
(A) Contract that limits the freedom or right of the Company or any of its Subsidiaries to use Intellectual Property owned by the Company or any of its Subsidiaries, (B) any settlement contract, consent-to-use or settlement agreement relating to the extension of insurance Intellectual Property, or the providing of (C) any guarantee, pursuant Contract granting any exclusive rights to any third party with respect to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended Intellectual Property owned by the Company or any of its Subsidiaries;
(dxiii) Contract which is not terminable by it upon less than sixty (60) days’ notice without penalty or additional liability and involves payments in excess of $250,000 annually; or
(xiv) any agreement by other Contract which involves a consideration in excess of $500,000 annually.
(b) The Company has delivered or made available to the Purchaser true and correct copies of all written Contracts and an accurate description of all oral arrangements or Contracts that are required to be set forth on Schedule 3.09(a), together with all material amendments, waivers or other changes thereto.
(c) Except as set forth on Schedule 3.09(c), (i) each of the Company or any of and its Subsidiaries services student loans for has performed in all material respects all material obligations required to be performed by it and is not in material default under, in material breach of, nor in receipt of any third party written Claim of material default or by which material breach under, any third party services student loans for Material Contract; (ii) no event has occurred which, with the Company passage of time or any the giving of its Subsidiaries;
(e) any open purchase order notice or contract for capital expenditures both, would result in a material default or material breach by the Company or any of its Subsidiaries in excess under any Material Contract; and (iii) as of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customersdate hereof, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 knowledge of the Company Disclosure Schedulethere is no material breach or threatened material breach by (or non-ordinary course notice of non-renewal or termination from (other than any automatic non-renewals or terminations in accordance with such Material Contract’s terms)) the other parties to any Material Contract. Except for those that have terminated or expired in accordance with their terms, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, Contracts and all modifications and supplements thereto plans set forth on Schedule 3.09(a) or required to be set forth on Schedule 3.09(a) (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is are valid and in full force and effecteffect and constitute legal, (ii) valid and binding obligations of the Company or applicable such Subsidiary, as and are enforceable against the case may beCompany or such Subsidiary in accordance with their respective terms, and, to the knowledge Company’s knowledge, constitute legal, valid and binding obligations of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any or parties thereto, enforceable against such party or parties in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge availability of the Company, any specific performance and other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractequitable remedies.
Appears in 1 contract
Contracts and Commitments. Except as set forth in (a) All contracts, agreements and commitments to which the Company SEC Reports or on Section 3.10 any Subsidiary is a party or is bound (and which provide for payment by the Company or any Subsidiary or receipt by the Company or any Subsidiary of more than $100,000 over the life of the contract, agreement or commitment or which are otherwise material to the Company and the Subsidiaries, taken as a whole) are listed in Schedule 6.9 of the Company Disclosure Schedule, none of .
(b) Neither the Company or nor any of its Subsidiaries Subsidiary is a party to or bound by any agreementagreements, contractcontracts or commitments which individually or when aggregated with all related agreements, commitment contracts or other written instrument commitments, provide for the grant of any preferential rights to purchase or lease any of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company Company's or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;Subsidiary's assets.
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has delivered or made available to Parent and Sub true and complete copies of all each written contracts and commitments agreement, contract or commitment listed in Section 3.10 Schedule 6.9 of the Company Disclosure Schedule, as well as true and accurate summaries of all any oral agreement listed thereon.
(d) The enforceability of the agreements, contracts and commitments referred to in this Section 6.9 will not be affected in any respect by the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(e) No purchase contracts or commitments of the Company or any Subsidiary are in excess of the normal, ordinary and usual requirements of the Company or any Subsidiary, or to the best knowledge of the Company, were entered into at prices in excess of those available in the industry in arm's length transactions on the respective dates thereof.
(f) Except as set forth in Schedule 6.9(f), neither the Company nor any Subsidiary is a party to or bound by any outstanding agreements, arrangements or contracts with any of its officers, directors, employees, agents, consultants, advisors or sales representatives (or any affiliates of such persons) that (i) are cancelable by it only upon notice of longer than 30 days and with the imposition of a liability, penalty or premium, (ii) require non-cancelable payment by the Company or any Subsidiary of over $50,000, or (iii) provide for any bonus or other payment based on the sale of the Company or any portion thereof.
(g) Except as set forth in Schedule 6.9(f), neither the Company nor any Subsidiary is a party to or bound by any employment agreement, consulting agreement or any other agreement that contains any provision for severance or termination pay liabilities or obligations (including, without limitation, change of control or "golden parachute" provisions).
(h) Neither the Company nor any Subsidiary is a party to or bound by:
(i) any material mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money by the Company or any Subsidiary;
(ii) any guaranty, direct or indirect, by the Company or any Subsidiary of any material obligation for borrowings or otherwise, excluding endorsements made for collection in the ordinary course of business;
(iii) any obligation to make payments, contingent or otherwise, of over $100,000 in the aggregate arising out of any prior acquisition of the business, assets or stock of other persons, other than with respect to acquisitions of food or supplies in the ordinary course of business;
(iv) any collective bargaining agreement with any labor union;
(v) except as set forth in Schedule 6.9(h)(v), any agreement containing noncompetition or other limitations restricting the conduct of the business of the Company or any Subsidiary; and
(vi) except as set forth in Schedule 6.2, any partnership, joint venture or similar agreement.
(i) Neither the Company nor any Subsidiary is bound by any agreement or arrangement for the sale of any of the assets or capital stock of the Company or the Subsidiaries or for the grant of any preferential rights to purchase any of the assets or capital stock of the Company or the Subsidiaries.
(j) With respect to each contract and agreement listed in Section 3.10 Schedule 6.9 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectivelyexcept as set forth therein, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts such contracts and agreements is valid, binding and in full force and effect, (ii) effect and is enforceable by the Company (or applicable its Subsidiary, as the case may be) in accordance with its terms, andsubject to bankruptcy, insolvency, reorganization and other laws and judicial decisions of general applicability relating to the knowledge or affecting creditors' rights and to general principles of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.equity;
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in on the Company SEC Reports or on Section 3.10 of the Company Disclosure attached Contracts Schedule, none of neither the Company or Partnership nor any of its Subsidiaries is a party to any written or bound by any agreement, contract, commitment or other written instrument of the following typeoral:
(ai) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed contract involving payments of trust, bond, note, guaranty, surety, trust agreement and/or other agreement more than $1,000,000 per year or instrument relating to (i) the borrowing of money money, or obtaining extensions to mortgaging, pledging or otherwise placing a lien on any of credit by the Company assets of the Partnership or any of its Subsidiaries or Subsidiaries, other than Permitted Liens;
(ii) license or royalty agreement involving expected payments of more than $100,000 in the loaning aggregate;
(iii) contract that grants exclusive rights or that would impose any significant restrictions upon the ability of money or granting extensions the Partnership and its Subsidiaries to freely engage in their businesses anywhere in the world;
(iv) guaranty of credit any obligation of any Person (other than student loansthe Partnership or its Subsidiaries);
(v) contract relating to the supply, manufacturing, distribution, marketing, advertising or promotion of products or services (whether by the Company Partnership or its Subsidiaries or for the Partnership or its Subsidiaries) involving in any such case payments of more than $500,000 per year (other than sales or purchases made pursuant to purchase orders in the ordinary course of business);
(vi) contract relating to the pending acquisition or sale of a business, the capital stock of another Person or assets having a fair market value in excess of $1,000,000;
(vii) employment agreement or consulting agreement providing for payments thereunder in excess of $100,000 per year;
(viii) contract under which a Person (other than the Partnership or any of its Subsidiaries) is advanced or loaned an amount exceeding $10,000;
(ix) agreement for the sale, lease, license, rental or disclosure of any list, record or database of the Partnership or any of its Subsidiaries;
(x) contract for joint ventures, strategic alliances or partnerships (other than the organizational documents of the Partnership and its Subsidiaries); or
(xi) contract for capital expenditures in excess of $250,000.
(b) any agreement pursuant Each contract required to which be disclosed on the Company attached Contracts Schedule is in full force and effect and is the legal, valid and binding obligation of the Partnership or its Subsidiaries, enforceable against them in accordance with its terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principals of equity affecting the availability of specific performance and other equitable remedies. Neither the Partnership, any of its Subsidiaries has purchasednor, generated to the Partnership’s Knowledge, any other party thereto, is in material violation of or sold student loans in excess default under (nor does there exist any condition which upon the passage of Five Million Dollars ($5,000,000time or the giving of notice would cause such a violation of or default under) in principal amount;any contract required to be disclosed on the attached Contracts Schedule, except as set forth on the attached Contracts Schedule.
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, Except as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions set forth on the competitive conduct of their businesses or prohibits or otherwise restricts Contracts Schedule, the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company Partnership has made available to Parent Buyer true and correct copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of on the Company Disclosure attached Contracts Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Yell Finance Bv)
Contracts and Commitments. (a) Except as for the contracts, commitments, agreements, leases and licenses set forth in on Schedule 4.10(a), as of the date of this Agreement, neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreementwritten or, contractto the Company’s knowledge, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to oral: (i) agreement for the borrowing employment of money any officer, individual employee or obtaining extensions of credit other individual on a full time or consulting basis; (ii) loan agreement or indenture relating to Indebtedness; (iii) lease or agreement under which it is the lessee of, or holds or operates, any tangible personal property owned by any other Person for which the annual rental exceeds $100,000 and which is not terminable on 60 or fewer days notice by the Company or any of its Subsidiaries without material liability; (iv) contract, or (ii) group of related contracts with the loaning of money or granting extensions of credit same Person (other than student loanspurchase orders entered into in the ordinary course of business), which (A) by the Company or any of its Subsidiaries;
terms requires (bx) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures payments by the Company or any of its Subsidiaries in excess of One Million Dollars $100,000 annually or in excess of $200,000 over the remaining term of such contract or (y) payments to the Company or any of its Subsidiaries in excess of $1,000,000250,000 annually or in excess of $500,000 over the remaining term of such contract and (B) is not terminable on 60 or fewer days notice by the Company or any of its Subsidiaries without material liability; (v) contract containing covenants materially limiting the ability of the Company or any of its Subsidiaries to compete in any line of business (other than exclusivity arrangements entered into in the ordinary course of business);
; (fvi) license by which the Company or any of its Subsidiaries is granted the right to use Intellectual Property material to the conduct of its business, other than licenses for commercial software that is “off-the-shelf” or widely available; (vii) joint venture, partnership or similar contract or agreement involving a sharing of profits, losses, costs or liabilities by the Company and its Subsidiaries; (viii) contract that provides for the lease radio or television broadcast of real property any events organized or conducted by the Company or any of its Subsidiaries;
; (gix) guarantee of any Indebtedness or other obligations of any other Person; (x) any contract or agreement that subjects relating to the sponsorship of any events of the Company or any of its Subsidiaries providing for annual payments to restrictions on the competitive conduct Company or its Subsidiaries in excess of their businesses or prohibits or otherwise restricts $250,000; (xi) any agreement for the use of venues for events of the Company or any of its Subsidiaries from soliciting customersoccurring after the date hereof that is material to the operation of the Company Business as currently conducted, vendors or employees of third parties;
(hxii) any joint venturesanctioning agreements with any professional motor sports association (each contract, partnershipcommitment, royalty agreement, lease or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
license described in subsections (i) any business acquisition or divestiture agreement – (or any letter of intentxii) above, term sheet or draft agreement relating to any such pending transactiona “Material Contract”);.
(jb) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent the Buyer Parties true, correct and complete copies of all written contracts and commitments listed in Section 3.10 Material Contracts. With respect to each Material Contract, except (x) as set forth on Schedule 4.10(b) or (y) where the failure of any of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “following to be true would not have a Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule Adverse Effect: (i) each of the Material Contracts agreement is legal, valid, binding and enforceable and in full force and effecteffect with respect to the Company or one of its Subsidiaries, and to the Company’s knowledge, is legal, valid, binding, enforceable and in full force and effect with respect to each other party thereto, in either case subject to the effect of bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and except as the availability of equitable remedies may be limited by general principles of equity; and (ii) none of the Company Company, any of its Subsidiaries and, to the Company’s knowledge, any other party is in breach or applicable Subsidiary, as the case may bedefault, and, to the knowledge of the Company’s knowledge, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred which with notice or condition exists that, with the giving lapse of notice, the passage of time, time or both, both would constitute a breach or default by the Company or applicable SubsidiaryCompany, as the case may be, any of its Subsidiaries or, to the knowledge of the Company’s knowledge, any such other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waivedparty, or extended the time for the performance ofpermit termination, any material obligations modification or acceleration, under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractsuch agreement.
Appears in 1 contract
Contracts and Commitments. Except as set forth in the Company SEC Reports or on a) Section 3.10 5.09 of the Company Disclosure ScheduleSchedules, none of lists the Company or any of its Subsidiaries following contracts to which Seller’s Choice is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule ):
(i) each any pledge, conditional sale or title retention contract, security contract, personal property lease and lease purchase contract to or from any Person providing for aggregate lease payments in excess of $10,000;
(ii) any contract (or group of related contracts) for the purchase or sale of supplies, products or other personal property or for the furnishing or receipt of services which involve aggregate consideration in excess of $10,000;
(iii) any contract related to indebtedness;
(iv) any contract containing material non-competition provisions by Seller’s Choice or which otherwise limits the ability of Seller’s Choice to engage in any activity anywhere in the world;
(v) any contract for the employment of any individual on a full-time, or part-time basis, and any severance agreement, non-compete, confidentiality, trade secrets or similar agreement with or by employees of Seller’s Choice; and any other contract with any current or former employee or Person whereby the consummation of the transactions contemplated by the hereby would cause Seller’s Choice to make a payment or provide other consideration to such employee or Person;
(vi) any other contract (or group of related contracts) the performance of which involves aggregate consideration to be paid by Seller’s Choice in excess of $10,000;
(vii) any contract with Seller or any of its Affiliates;
(viii) any contract concerning the sale or acquisition (by merger, purchase or sale of assets or equity or otherwise) of a business or a portion thereof or assets relating thereto;
(ix) any contract with a Governmental Authority; and
(x) any contract that provides for capital expenditures in excess of $10,000 for any single project or related series of projects.
(i) Each Material Contracts Contract is a legal, valid, binding and enforceable and in full force and effect, effect against Seller’s Choice and each other party thereto; (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge neither of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations Seller and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, Seller’s Choice nor, to the knowledge of the CompanySeller and Seller’s Choice’s, any other party thereto, is in breach or default and no event has waived, occurred which with notice or extended the lapse of time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) would constitute a breach or default underor permit termination, (B) give rise to cancellation rights undermodification or acceleration, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, under any Material Contract; and (iii) Seller and Seller’s Choice have not received written notice that any party to a Material Contract intends to cancel, not renew or terminate such Material Contract or to exercise or not exercise any option under such Material Contract.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Jerrick Media Holdings, Inc.)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on (a) Section 3.10 3.8 of the Company Sellers Disclosure Schedule, none Schedules sets forth each of the Company following Contracts to which any of Sellers or any of their Subsidiaries is a party or bound with respect to or relating to the Product Operations, other than Contracts with Buyer or any of its Affiliates (the “Business Contracts”):
(i) any Contract pursuant to which any Seller or any of its Subsidiaries is a party to purchases products or bound by services in excess of $500,000 in any agreementyear, contract, commitment excluding any sales orders or purchase orders relating thereto (other written instrument of the following type:than In-Bound Licenses) and excluding any Contracts for Infrastructure Assets;
(aii) each Contract which provides for “exclusivity” or any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed similar requirement in favor of trust, bond, note, guaranty, surety, trust agreement and/or any Person other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company than Sellers or any of its Subsidiaries their Subsidiaries, or each Contract under which Sellers are restricted in any material respect in the distribution, licensing, marketing, purchasing, development or manufacturing of the Seller Products;
(iiiii) the loaning any settlement agreement or settlement-related agreement (including any agreement under which any threatened or asserted employment-related claim is settled) in each case that contains any on-going material obligation of money or granting extensions of credit (other than student loans) by the Company Sellers or any of its their Subsidiaries;
(biv) any agreement Contract granting a right of first refusal or first negotiation with respect to the sale of any of the Purchased Assets;
(v) each Purchased Contract;
(vi) each Contract providing for payments of royalties, franchise fees or commissions to third Persons with respect to the Product Operations;
(vii) each (i) In-Bound License (including libraries provided by foundries), other than (A) Open Source Licenses, (B) Contracts for commercially available off-the-shelf Software (including SaaS agreements) available for an annual aggregate fee of $50,000 or less, and in each case that is not incorporated into any Seller Products, (C) Contracts for Infrastructure Assets, (D) commercial Contracts to the extent including ancillary licenses to use a third Person’s Marks or feedback; (E) licenses granted in Contributor Assignment Agreements; (F) license rights received by Sellers from members of a SSO through a Seller’s membership in a SSO, and (G) confidentiality agreements; and (ii) Out-Bound License, other than (1) confidentiality and non-disclosure agreements; and (2) non-exclusive licenses in Contracts with consultants, contractors and vendors to the extent granting licenses in connection with the counterparty’s provisions of products or services to or for any of the Sellers; and (3) license rights granted by Sellers to members of an SSO through Seller’s membership in an SSO that is set forth in Section 3.9(k) of the Sellers Disclosure Schedules.
(viii) any Contract granting a Lien (other than a Permitted Lien) upon any Purchased Asset; and
(ix) each Contract providing for any license or franchise granted by any Seller pursuant to which the Company or any of its Subsidiaries such Seller has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating agreed to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for provide any third party with access to source code or by which to provide for source code to be put in escrow or to refrain from granting license or franchise rights to any third party services student loans for the Company or any of its Subsidiaries;other Person.
(eb) any open purchase order or contract for capital expenditures by the Company or any As of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has Sellers have made available to Parent Buyer true and correct copies of all Business Contracts, together, in each case, with all written contracts amendments or other changes thereto. Each Business Contract is a valid and commitments listed in Section 3.10 binding obligation of the Company Disclosure Schedule, summaries of all oral contracts applicable Seller or its Subsidiaries and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or . The applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in Seller and its Subsidiaries have performed all material respects, obligations required to be performed their obligations by it under each Business Contract. There exists (and are is not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (ivalleged to exist) no material breach or material default (or event has occurred that with or condition exists that, with without notice or the giving of notice, the passage lapse of time, or both, would constitute a default by material breach or material default) on the Company part of the applicable Seller, its Subsidiaries or applicable Subsidiary, as the case may be, its Affiliates or, to the knowledge Knowledge of Sellers, on the Company, part of any other party thereto under any of the Material Contracts, Business Contract. No event is occurring or has occurred (v) neither the Company or applicable Subsidiary, as in the case may be, norof any event with respect to a third party under any Business Contract, to the knowledge Knowledge of the CompanySellers) that with or without notice or lapse of time would permit termination, modification, or acceleration, under any Business Contract. None of Seller, its Subsidiaries or its Affiliates or any other party thereto has waived, repudiated any provision of any Business Contract. There are no circumstances that are reasonably likely to have an adverse effect on the ability of the applicable Seller or extended the time for the performance of, any material its Subsidiaries to perform their respective obligations under any Business Contract. With respect to all Business Contracts that obligate the Material Contracts and (vi) neither the execution applicable Seller or its Subsidiaries to purchase all or part of this Agreement nor the consummation its requirements of the Offer Seller Products, such Seller or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractits applicable Subsidiaries have met such purchase obligations required by such Business Contracts.
Appears in 1 contract
Samples: Asset Purchase Agreement (Seagate Technology Holdings PLC)
Contracts and Commitments. (i) Except as set forth in Schedule 3.1(j) or Schedule 3.1(h)(i), neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries Subsidiary is a party to or bound by any agreementContract of any kind which is to be performed, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating as to (i) the borrowing of money or obtaining extensions of credit by which the Company or any of its Subsidiaries Subsidiary may have any right or (ii) obligation, on or after the loaning of money or granting extensions of credit (Closing Date other than student loans) by the Company or any of its Subsidiaries;than:
(bA) any agreement Contracts which have been entered into in the ordinary course of business consistent with past practice (including purchase orders, leases and general contracts relating to store construction); or
(B) Contracts pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, andis or would be obligated to expend, or entitled to the knowledge of the Companyreceive, all other parties less than $250,000 in any 12-month period or which is subject to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) cancellation by the Company or applicable the Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of upon less than three months' notice, the passage without incurring any expenditure and without penalty or increased cost.
(ii) Each Contract required to be disclosed in Schedule 3.1(j) and each Lease Agreement identified as a significant Lease Agreement on Schedule 3.1(h)(i) (each, a "Material Contract") is a valid and binding agreement of time, or both, would constitute a default by the Company or applicable a Subsidiary, as the case may be, or, to and (assuming in the knowledge case of each Material Contract other than the Company, any Samix Acquisition Agreements and the VisionWorks Acquisition Agreement the due authorization of parties other party under any of the Material Contracts, (v) neither than the Company or applicable such Subsidiary, as the case may be) enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability affecting creditors' rights and to general equity principles, except, in the case of each Material Contract (other than the Samix Xxxuisition Agreements and the VisionWorks Acquisition Agreement) for any failure of validity or enforceability which, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect. Except as set forth on Schedule 3.1(i), (i) the Company and its Subsidiaries have complied in all respects with all contractual and administrative requirements of insurers and other third party payors with whom the Company and/or any of the Subsidiaries have or are conducting business, except for any failure of compliance which, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect, (ii) since January 3, 1998, neither the Company nor any Subsidiary, nor, to the knowledge of Company's and the CompanyManagement Sellers' knowledge, any other party thereto has waivedterminated, cancelled or extended the time for the performance ofsubstantially modified any Material Contract and, any material obligations under the Material Contracts and (viiii) neither the execution of this Agreement Company nor any Subsidiary nor, to the consummation of Company's and the Offer Management Sellers' knowledge, any other party thereto is in default under any Material Contract, except for any default or breach which, individually or in the Merger shall (A) constitute aggregate, would not be reasonably likely to have a default underMaterial Adverse Effect. Except as otherwise disclosed on Schedule 3.1(j), (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, there are no Contracts between or (E) otherwise adversely affect among any of the rights Company and/or any of the Subsidiaries, on the one hand, and any officer or director of the Company or any Subsidiary underor any person owning five percent (5%) or more of the outstanding shares of Common Stock or Preferred Stock or any respective family member or affiliate of such officer, any Material Contractdirector, stockholder or note holder, on the other hand.
Appears in 1 contract
Samples: Recapitalization Agreement (Eye Care Centers of America Inc)
Contracts and Commitments. Except as set forth in (a) Schedule 4.13 attached hereto lists: (i) all contracts to which the Company SEC Reports is a party or on Section 3.10 is otherwise bound that require the receipt or expenditure of more than Two Hundred Fifty Thousand Dollars ($250,000) by the Company Disclosure Schedulein any consecutive twelve-month period after the date hereof, none of other than those terminable without penalty on not more than ninety (90) days’ notice; (ii) any agreement to which the Company is a party or is otherwise bound creating or evidencing long-term indebtedness (whether incurred, assumed, guaranteed or secured by any asset); (iii) all licensing agreements with third parties to which the Company is a party that require the receipt or expenditure of more than Two Hundred Fifty Thousand Dollars ($250,000) by the Company in any consecutive twelve-month period after the date hereof; (iv) each collective bargaining or other agreement to which the Company is a party or is otherwise bound with any labor union or other representative of a group of employees; (v) each partnership, joint venture, contribution, tax sharing or other agreement to which the Company is a party or is otherwise bound involving a sharing of profits, losses, costs or liabilities by the Company with Seller or any of its Subsidiaries is a party to Affiliates or bound by any agreement, contract, commitment third party; (vi) each written contract or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company is a party and containing terms which impose or any of its Subsidiaries has purchasedpurport to impose non-competition obligations upon the Company; (vii) each written warranty, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency guaranty or other entity of the principal of and/or accrued interest on any student loan similar undertaking with respect to contractual performance extended by the Company or any other than in the ordinary course of its Subsidiaries;
business; (dviii) any agreement by contract to which the Company or any of its Subsidiaries services student loans for any third is a party or by which any third party services student loans is otherwise bound providing for the Company purchase or any sale of its Subsidiaries;
property other than in the ordinary course of business or providing for the purchase or sale of real property; and (eix) any open purchase order all real property leases, subleases, under leases, licenses or contract for capital expenditures by other occupancy agreements (each, a “Real Estate Lease”) to which the Company or any of its Subsidiaries in excess of One Million Dollars is a party ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement – (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(jix) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). .
(b) Except as disclosed in Section 3.10 of set forth on Schedule 4.13(b), the Company Disclosure Schedule (i) each has not obtained any letter of the Material Contracts is in full force and effectcredit for, (ii) the Company or applicable Subsidiarygiven any power of attorney to, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts haveany person or entity for any purpose whatsoever that, in all material respectseach case, performed their obligations and are is outstanding or will be in effect on the Closing Date.
(c) The Company is not in default under the Material Contractsbreach or default, (iii) the Company and to Seller’s knowledge, there is no basis for any claim of breach or applicable Subsidiarydefault, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event except such claims, breach or defaults as would not, individually or in the aggregate, have a Material Adverse Effect. The Company has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by not received any written notice that the Company is in breach or applicable Subsidiary, as the case may be, or, to default of any Material Contract. To the knowledge of Seller, all of the CompanyMaterial Contracts are in full force and effect and are valid, any other party under any binding and enforceable in accordance with their respective terms.
(d) Seller has heretofore delivered or made available to Purchaser true and correct copies of all of the Material Contracts, (v) neither the Company or applicable Subsidiaryincluding all amendments, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts modifications and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractsupplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as specifically contemplated by this Agreement or except as set forth in on the Contracts Schedule or the Benefit Plans Schedule attached hereto, neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreementby, contractwhether written or oral, commitment or other written instrument of the following typeany:
(ai) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other collective bargaining agreement or instrument contract with any labor union;
(ii) contract for the employment of any officer or key employee or any severance agreements requiring payment of more than three (3) months salary;
(iii) agreement or indenture relating to (i) the borrowing of money or obtaining extensions of credit by the Company to mortgaging, pledging or otherwise placing a Lien on any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiariesassets;
(biv) any agreement pursuant to contract under which the Company or any of its Subsidiaries has purchased, generated advanced or sold student loans loaned any other Person amounts in excess of Five Million Dollars (the aggregate exceeding $5,000,000) in principal amount100,000;
(cv) any agreement relating agreements with respect to the extension lending or investing of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiariesfunds;
(dvi) any agreement by under which the Company or any of its Subsidiaries services student loans has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(vii) guaranty of any obligation in excess of $100,000, other than endorsements made for collection;
(viii) management, consulting, advertising, marketing, promotion, technical services, advisory or other contract or other similar arrangement relating to the design, marketing, promotion, management or operation of the Business requiring payments in excess of $100,000;
(ix) outstanding powers of attorney executed on behalf of the Company;
(x) lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $100,000 annually;
(xi) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it;
(xii) contract or group of related contracts with any of the Company's or its Subsidiaries' 10 largest customers (based on net revenues for the six months ending June 30, 1999) (the "Top Customer Contracts");
(xiii) confidentiality agreement or similar arrangement, other than those with employees and customers entered into in the ordinary course of business;
(xiv) contract relating to the supply, sale or distribution of the Company's or its Subsidiaries' products or services by a third party;
(xv) contract which prohibits it from freely engaging in business anywhere in the world other than customer contracts entered into in the ordinary course of business;
(xvi) other agreement material to it whether or not entered into in the ordinary course of business consistent with past practice.
(b) Except as disclosed on the Contracts Schedule, (i) no contract or commitment required to be disclosed on the Contracts Schedule has been breached or canceled by the other party and neither the Company nor the Stockholder has Knowledge of any third anticipated breach by any other party services student loans for to any contract set forth on the Contracts Schedule, (ii) no customer or supplier has indicated in writing or orally to the Company, any of its Subsidiaries or the Stockholder that it shall stop or materially decrease the rate of business done with the Company or any of its Subsidiaries or that it desires to renegotiate its contract or current arrangement with the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company and each of its Subsidiaries have performed all the material obligations required to be performed by them in connection with the contracts or applicable Subsidiary, as commitments required to be disclosed on the case may be, has Contracts Schedule and are not given or received any notice of in material default under or in material breach of any contract or commitment required to be disclosed on the Contracts Schedule, and no event has occurred which with the passage of time or the Material Contractsgiving of notice or both would result in a material default or material breach thereunder, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by neither the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under nor any of its Subsidiaries has any present expectation or intention of not fully performing any obligation pursuant to any contract set forth on the Material ContractsContracts Schedule, and (v) neither the Company or applicable Subsidiaryeach agreement is legal, valid, binding, enforceable and in full force and effect and will continue as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor such following the consummation of the Offer transactions contemplated hereby.
(c) The Company has provided the Purchaser with a true and correct copy of all written contracts which are required to be disclosed on the Contracts Schedule, in each case together with all amendments, waivers or other material changes thereto (all of which are disclosed on the Merger shall (A) constitute Contracts Schedule). The Contracts Schedule contains an accurate and complete description of all material terms of all oral contracts referred to therein. The Company is not a default under, (B) give rise to cancellation rights under, (C) require the giving of notice party to any third party undermaterially adverse or illegal contract or commitment. The revenues received by the Company and its Subsidiaries in the six months ending June 30, (D) require 1999 with respect to the consent of any counterparty under, or (E) otherwise adversely affect any Top Customer Contracts represents at least 45% of the rights of the Company or any Subsidiary under, any Material ContractCompany's and its Subsidiaries' net revenues for such period.
Appears in 1 contract
Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth in Schedule 4.17 attached hereto (the "CONTRACTS SCHEDULE") neither the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or nor any of its Subsidiaries is a party to or bound by any agreementby, contractwhether written or oral, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to any: (i) collective bargaining agreement or contract with any labor union; (ii) management agreement or other contract for the borrowing employment of money any officer, partner, individual employee or obtaining extensions other person on a full time, part-time or consulting basis or providing for the payment of credit by any cash or other compensation or benefits upon the sale of all or a material portion of the assets of the Company or any Subsidiary thereof or a change of its Subsidiaries or (ii) the loaning of money or granting extensions of credit control (other than student loans) by the Company or any of at-will employment agreements with its Subsidiaries;
(b) any agreement pursuant to employees which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects do not commit the Company or any of its Subsidiaries to restrictions severance, termination or other similar payments); (iii) agreement or indenture under which the Company or its Subsidiaries has created, incurred, assumed or guaranteed any indebtedness for borrowed money or any capitalized lease obligation, or created or suffered to exist a security interest, pledge or other lien on any of its assets; (iv) contract, including, but not limited to, purchase orders, for the purchase or sale of raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year (except if such contracts do not involve a sum in excess of $500,000 annually) or involves a sum in excess of $1,000,000; (v) contract not terminable by it upon 30 days or less notice without premiums or penalties (except if such contracts do not involve a sum in excess of $250,000 per year), (vi) contract which prohibits it from freely engaging in business anywhere in the world; (vii) contract relating to the distribution, marketing or sales of its products; (viii) franchise or license agreements; (ix) power of attorney; (x) agreement or contract relating to the acquisition or sale of the business (or any material portion thereof); or (xi) other agreement material to it whether or not entered into in the ordinary course of business.
(b) With respect to each of the Company's and its Subsidiaries' agreements and contracts required to be disclosed on Schedule 4.17 or any other Schedule hereto: (i) such agreement or contract is legal, valid, binding, and enforceable in accordance with its terms (except as enforceability thereof may be limited by bankruptcy or other laws affecting creditor's rights generally and limitations on the competitive conduct availability of their businesses equitable remedies), and is in full force and effect; (ii) neither the Company nor its Subsidiaries is in breach or prohibits default, and no event has occurred which with notice or otherwise restricts lapse of time would constitute a breach or default by the Company or its Subsidiaries or permit any third party to terminate, modify, or accelerate, such agreement or contract; (iii) neither the Company nor its Subsidiaries has repudiated any provision of such agreement, contract or arrangement; (iv) to the best of the Company's and its Subsidiaries' knowledge, no third party is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by such third party or permit the Company or its Subsidiaries to terminate, modify, or accelerate, such agreement, contract or arrangement; (v) neither the Company nor its Subsidiaries has any present expectation or intention of not fully performing any obligation on its part to be performed pursuant to any such agreement or contract; (vi) neither the Company nor its Subsidiaries has any knowledge of any breach or anticipated breach by any other party to any such agreement or contract; (vii) to the knowledge of Sellers, no unfilled customer order or commitment obligating the Company or any of its Subsidiaries from soliciting customersto process, vendors manufacture or employees of third parties;
(h) any joint venture, partnership, royalty deliver products or similar agreement involving the sharing of profits and/or expenses between perform services will result in a material loss to the Company or any of its Subsidiaries upon completion of performance, and any third party;
(iviii) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing knowledge of Sellers, with respect to verbal or from written contracts for which the Company's or its Subsidiaries' payments or receipts are presently anticipated to exceed $250,000 neither the Company or nor any of its Subsidiaries of is obligated to purchase any material Intellectual Property Right (property or services at a price greater than prevailing market price, sell any property or services at a price less than prevailing market price, pay rentals or royalties at a rate greater than the prevailing market price, or act as defined in Section 3.19(c));lessor or licensor at a rate less than the prevailing market price.
(kc) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies provided Buyer with a true and correct copy of all written contracts which are referred to on Schedule 4.17, together with all amendments, waivers or other changes thereto. Schedule 4.17 contains an accurate and commitments listed in Section 3.10 complete description of the Company Disclosure Schedule, summaries all material terms of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, referred to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contracttherein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Dura Automotive Systems Inc)
Contracts and Commitments. Except as set forth in the Company SEC Reports or on (a) Section 3.10 2.08(a) of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument Schedule lists each of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant Contracts to which the Company or any Subsidiary of its the Company is a party (such Contracts, together with all Contracts listed or required to be listed or otherwise disclosed or required to be disclosed in Section 2.09 (Provider, Broker and Insurance Contracts) and Section 2.15(b) (the Company IP Agreements) of the Disclosure Schedule, being “Material Contracts”) that is material to the conduct of the Business:
(i) each Contract of the Company and the Subsidiaries of the Company, including without any limitation any Contract listed or required to be listed on Sections 2.09 (Provider, Producer and Insurance Contracts) of the Disclosure Schedule and any other agreement with any employee, consultant or independent contractor, that has purchased, generated or sold student loans annual obligations in excess of Five Million Dollars ($5,000,000) in principal amount200,000 per annum;
(cii) all Contracts that require the Company or any agreement relating Subsidiary of the Company to the extension of insurance or the providing purchase its total requirements of any guarantee, pursuant to product or service from a third party or that contain “take or pay” provisions;
(iii) other than the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity Organizational Documents of the principal of and/or accrued interest on any student loan extended Company and its Subsidiaries and Insurance Contracts, all Contracts that provide for (A) indemnification by the Company or any Subsidiary of its Subsidiariesthe Company of any Person and the potential indemnification obligation exceeds $50,000 or (B) the assumption by the Company or any Subsidiary of the Company of any material Tax, environmental or other Liability of any Person;
(div) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);
(v) except for Contracts relating to trade receivables or trade payables, all Contracts relating to Indebtedness (including, without limitation, guarantees) of the Company or any Subsidiary of the Company;
(vi) all Contracts with any Governmental Authority to which the Company or any Subsidiary of the Company is a party, except for Insurance Contracts issued in the Ordinary Course of Business involving aggregate annual premiums of less than $200,000;
(vii) all Contracts that limit the ability of the Company or any Subsidiary of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time;
(viii) any agreement Contracts to which the Company or any Subsidiary of the Company is a party that provides for any joint venture, partnership, joint employer or similar arrangement by the Company or any Subsidiary of the Company;
(ix) other than Dental Provider Contracts, all Contracts between or among the Company or a Subsidiary of the Company on the one hand and an Equityholder or any Affiliate of an Equityholder on the other hand;
(x) all collective bargaining agreements or Contracts with any labor union to or by which the Company or any Subsidiary of its Subsidiaries services student loans for any third the Company is a party or by is otherwise bound;
(xi) all Contracts relating to the future disposition (including restrictions on transfer or rights of first refusal) or future acquisition of any interest in any business enterprise, and all Contracts relating to the future disposition of a material portion of the assets of the Company or any Subsidiary of the Company outside the Ordinary Course of Business (other than this Agreement);
(xii) all Contracts the terms of which provide that the transactions contemplated under this Agreement will give rise to any third party services student loans form of severance, compensation, accelerated payment, accelerated vesting or other Liability for the Company or any Subsidiary of its Subsidiaries;the Company; and
(exiii) other than Producer Agreements, all sales promotion, market research, marketing consulting and advertising Contracts (A) to which the Company or any open purchase order Subsidiary of the Company is a party or contract for capital expenditures otherwise subject, (B) which involve aggregate annual consideration in excess of $100,000, and (C) which cannot be canceled by the Company or any of its Subsidiaries in excess of One Million Dollars Subsidiary without more than ninety ($1,000,000);90) days’ notice.
(fb) any agreement for the lease of real property by Each Material Contract is valid and binding on the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects and the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (the Company, as defined applicable, in Section 3.19(c));
(k) any contract or agreement accordance with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts terms and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) . Neither the Company or applicable Subsidiary, as nor the case may be, and, to the knowledge Subsidiaries of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, ornor, to the knowledge Knowledge of the Company, any other party thereto is in material breach of or material default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. To the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge Knowledge of the Company, no event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any other party has waivedMaterial Contract or, or extended the time except for the performance of, any material obligations under the Material those termed group Contracts and (videscribed in Section 2.07(n) neither the execution of this Agreement nor the consummation of the Offer Disclosure Schedule, result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent loss of any counterparty underbenefit thereunder. Complete copies of each Material Contract (including all modifications, or (Eamendments and supplements thereto and waivers thereunder) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contracthave been Made Available to Buyer.
Appears in 1 contract
Samples: Merger Agreement (DCP Holding CO)
Contracts and Commitments. Except as set forth in (a) Neither the Company SEC Reports nor any of its Subsidiaries is a party to, or on Section 3.10 is bound by, any Contract:
(i) providing for aggregate future noncontingent payments by or to the Company or any of its Subsidiaries in excess of $500,000 in any fiscal year, other than Contracts with an employee, consultant or independent contractor relating to employment or the provision of services or Contracts that are terminable upon 90 days or fewer notice or that expire pursuant to their terms no later than 120 days after the date hereof;
(ii) limiting the freedom of the Company Disclosure Scheduleto engage in any line of business or sell, none supply or distribute any service or product (including with respect to the pricing thereof), or to compete with any entity or to conduct business in any geography, or that grants any exclusive rights to any party (other than any (x) non-exclusive licenses entered into in the ordinary course of business, (y) Contracts for which noncontingent payments by or to the Company or any of its Subsidiaries do not exceed $500,000 in any fiscal year or (z) Contracts that are terminable upon 90 days or fewer notice or that expire pursuant to their terms no later than 120 days after the date hereof) where such limitations or restrictions would have a Material Adverse Effect;
(iii) involving any joint venture, partnership or similar arrangement that is material to the Company and its Subsidiaries, taken as a whole;
(iv) pursuant to which the Company or any Subsidiary incurs, assumes or guarantees any Indebtedness for borrowed money in excess of $500,000;
(v) containing severance or termination pay Liabilities related to termination of employment in excess of $200,000 (individually to any employee);
(vi) providing for the supply, manufacturing, distribution or development of Company Products (where the remaining aggregate noncontingent payments to or by the Company are in excess of $500,000);
(vii) providing for the acquisition, transfer, in-bound licensing, out-bound licensing, development, co-development, or sharing of any material Intellectual Property or Software or materially affecting the ability of the Company or any of its Subsidiaries is a party to use or bound by disclose any agreementIntellectual Property or Software (other than license agreements providing for for commercially available software on standard terms and non-exclusive distribution, contract, commitment reseller and end-user customer and other non-exclusive agreements entered into in the ordinary course of business);
(viii) that prohibits the payment of dividends or other written instrument distributions in respect of the following type:
(a) share capital of the Company or any loan agreementof its Subsidiaries, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed prohibits the pledging of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing share capital of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) prohibits the loaning issuance of money or granting extensions of credit (other than student loans) guarantees by the Company or any of its Subsidiaries;
(bix) that is a Collective Bargaining Agreement;
(x) that provided for any agreement acquisition of another entity by the Company or its Subsidiaries pursuant to which the Company or any of its Subsidiaries has purchasedcontinuing indemnification, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency "earn out" or other entity of the principal of and/or accrued interest on any student loan extended by the Company contingent payment or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreementguarantee obligations; or
(oxi) that contains any other contractmaterial covenant granting "most favored nation" status that, agreement following the Merger, would apply to or commitment (ibe affected by actions taken by Parent, the Surviving Company and/or their respective Subsidiaries or Affiliates. Each Contract of the type described in the immediately preceding sentence, together with each of the Leased Real Property Subleases and Leases set forth on Section 3.11(d) with respect to which the aggregate amount that could reasonably be expected to be paid by of the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this AgreementDisclosure Letter, or (ii) that is otherwise material collectively referred to the herein as a "Company or any of its Subsidiaries. Material Contract." The Company has heretofore made available to Parent copies a complete and correct copy of all written contracts and commitments listed in Section 3.10 each Company Material Contract, including any amendments or modifications thereto.
(b) Each Company Material Contract is binding on the Company or its Subsidiary party thereto and, to the Knowledge of the Company Disclosure ScheduleCompany, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Scheduleeach other party thereto, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge Knowledge of the Company, all enforceable against each other parties party thereto (in each case, subject to the Bankruptcy and Equity Exception), and the Company and each of its Subsidiaries have performed all obligations required to be performed by them under each Company Material Contracts haveContract and, to the Knowledge of the Company, each other party to each Company Material Contract has performed all obligations required to be performed by it under such Company Material Contract, in all material respectseach case except as would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, performed their obligations and are the Company has not in received during the last twelve (12) months, notice of any violation or default under (or any condition that with the Material Contracts, (iii) the Company passage of time or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute cause such a violation of or default by under) any Company Material Contract, except for violations or defaults that would not have or reasonably be expected to have a Company Material Adverse Effect.
(c) To the Company or applicable Subsidiary, as the case may be, or, to the knowledge Knowledge of the Company, as of the date hereof, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time), would reasonably be expected to: (i) result in a material violation or breach of any other party provision of any Company Material Contract, (ii) give any Person the right to declare a default under any of the Company Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty underContract, or (Eiii) otherwise adversely affect give any of Person the rights of the right to cancel terminate or modify any Company or any Subsidiary under, any Material Contract, in each case, as would not have or would reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in the Company SEC Reports or on Section 3.10 Schedule 3.09 of the Company Disclosure ScheduleSchedules, none of the Company or any of its Subsidiaries Acquired Companies is a party to or bound by any agreement, contract, commitment or other written instrument of the following typeexecutory:
(ai) bonus, pension, profit sharing, retirement or other form of deferred compensation plan or Contract;
(ii) Contract or indenture relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any loan agreementportion of the assets of the Acquired Companies;
(iii) guaranty of any obligation for Indebtedness or other guaranty involving more than $100,000;
(iv) lease or Contract under which it is lessee of, origination agreementor holds or operates any personal property owned by any other party, indenturefor which the annual rental exceeds $100,000;
(v) lease or Contract under which it is lessor of or permits any third party to hold or operate any of its personal property, credit facilityfor which the annual rental exceeds $100,000;
(vi) other than in respect of blanket purchase orders that do not obligate the Company to purchase a minimum amount, securitization agreementContract or group of related Contracts with the same party for the purchase by any Acquired Company of products or services which provided for annual payments in excess of $100,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet;
(vii) other than standard or blanket purchase orders with customers, mortgagecontract or group of related contracts with a customer that provided for annual revenues (based on the trailing twelve-month period ending on the date of the Latest Balance Sheet) to the Acquired Companies in excess of $250,000;
(viii) Contract relating to any future disposition or acquisition of material stock, security agreementassets or properties by any Acquired Company, pledge agreementor any merger or business combination with respect to or involving any Acquired Company (other than this Agreement);
(ix) Contract requiring any Acquired Company to purchase its total requirements of any product or services from a third party or that contain “take or pay” provisions;
(x) broker, deed of trustdistributor, bonddealer, notemanufacturer’s representative, guarantyfranchise, suretyagency, trust agreement and/or other agreement sales promotion, market research, marketing consulting or instrument advertising Contract involving more than $100,000 annually;
(xi) material license or Contract relating to (i) the borrowing use by any Acquired Company of money or obtaining extensions of credit by the Company or any of its Subsidiaries third-party Intellectual Property or (ii) the loaning use of money any Company Intellectual Property other than non-exclusive licenses granted to distributors in the ordinary course of business;
(xii) Contract which limits or granting extensions prohibits or purports to limit or prohibit any Acquired Company from competing or freely engaging in any line of credit business or with any Person or anywhere in the world or during any period of time or containing any exclusivity, most favored nations, non-solicitation or similar provisions;
(xiii) other than with respect to any of the Company’s Subsidiaries set forth on Schedule 3.04 of the Disclosure Schedules, Contract that provides for any joint venture, partnership or similar arrangement by any Acquired Company;
(xiv) Contract between or among any Acquired Company on the one hand and any Affiliate of any Acquired Company (other than student loans) by the Company or any of its Subsidiaries) on the other hand;
(xv) employment agreement or contract with an independent contractor or consultant (or similar arrangement) to which an Acquired Company is a party and which is not cancellable without material penalty or without more than thirty (30) days notice;
(xvi) collective bargaining agreement or Contract with any union, works council or labor organization; or
(xvii) any other Contract, the absence of which would cause a Material Adverse Effect.
(b) any agreement pursuant to which the The Company either has supplied Purchaser with, or any has given Purchaser access to, a true and correct copy of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity all Contracts listed on Schedule 3.09 of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
Disclosure Schedules (d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule , together with all material amendments, modifications and supplements thereto.
(c) With respect to each Material Contract: (i) each such contract is a valid and binding agreement of an Acquired Company, as applicable, enforceable in accordance with its terms, except as the Material Contracts is in full force enforcement thereof may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and effect, general principles of equity affecting the availability of specific performance and other equitable remedies; (ii) none of the Company or applicable SubsidiaryAcquired Companies, as the case may beapplicable, andis in material breach or default, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the nor has any Acquired Company or applicable Subsidiary, as the case may be, has not given or received taken any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists thataction which, with the giving notice or lapse of notice, the passage of time, time or both, would constitute a default by the Company material breach or applicable Subsidiarydefault, or permit termination, modification or acceleration, as the case may beapplicable, or, under such contract; and (iii) to the knowledge of the Company’s knowledge, any no other party is in material breach or default under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractsuch contract.
Appears in 1 contract
Contracts and Commitments. Except as Section 3.13 of the Disclosure Schedule sets forth a list of all of the following agreements, contracts and commitments to which the Company or any of the Subsidiaries is a party or by which the Company, any of the Subsidiaries or their respective assets are bound (except for purchase orders for inventory by the Company or any of the Subsidiaries in the ordinary course of business) (each such contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Company SEC Reports Disclosure Schedule, a “Material Contract”):
(a) employment agreements or on Section 3.10 severance agreements or employee termination arrangements or consulting agreements, in any such case, with respect to employees or consultants earning in excess of $50,000 per year;
(b) any change of control agreements with employees or consultants of the Company Disclosure Scheduleor the Subsidiaries earning in excess of $100,000 per year;
(c) agreements, none contracts, commitments or arrangements containing any covenant limiting the ability of the Company or the Subsidiaries to engage in any line of business or to compete with any business or person;
(d) agreements or contracts (including loans or similar arrangements) with the Company or any affiliate of the Company (other than the Company and the Subsidiaries) or any past or present officer, director or employee of the Company or any of its such affiliates (other than employment, severance and change of control agreements covered by clause (a) or (b) above);
(e) agreements or contracts under which the Company or the Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage, installment obligation or other evidence of indebtedness for borrowed or loaned money or any guarantee of such indebtedness, in each case, relating to amounts in excess of $100,000;
(f) joint venture agreements or other agreements involving the sharing of profits;
(g) leases pursuant to which (i) material personal property or (ii) real property is a party leased to or bound by from the Company or the Subsidiaries;
(h) powers of attorney from the Company or any Subsidiaries;
(i) guaranties, suretyships or other contingent agreements of the Company or the Subsidiaries involving underlying obligations of not less than $100,000;
(j) any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument arrangement relating to (i) the borrowing of money or obtaining extensions of credit by capital expenditures with respect to the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and involving future payments which exceed $100,000 in any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c))12-month period;
(k) any agreement, contract, commitment or arrangement relating to the acquisition of assets (other than in the ordinary course of business consistent with past practice) or any capital stock of any business enterprise;
(l) license or royalty agreements involving any form of Intellectual Property, whether the Company is the licensor or licensee thereunder (excluding licenses that are commonly available on standard commercial terms, such as software “shrink-wrap” license);
(m) confidentiality and non-disclosure agreements (whether the Company is the beneficiary or the obligated party thereunder), other than those related to (i) commercial transactions in the ordinary course of business that are not individually material and (ii) the sale or disposition of the Company that do not adversely affect the transactions contemplated by this Agreement or any Ancillary Agreement or the operation of the Company by Parent after the Effective Time assuming that Parent operates the Surviving Corporation in a manner substantially similar to the manner in which the Company has been operated prior to the Effective Time;
(n) contracts or commitments relating to commission arrangements that are material to the Company or its business;
(o) indemnification agreements, other than in connection with commercial transactions in the ordinary course of business;
(p) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(oq) any other contract, agreement or commitment (i) with respect to contract under which the aggregate amount that could consequences of a default or termination would reasonably be expected to be paid have a Material Adverse Effect;
(r) contracts (other than those covered by clause (a) through (q) above) pursuant to which the Company and the Subsidiaries will receive or pay in excess of $100,000 over the life of the contract; and
(s) any other material agreements, contracts and commitments not entered into in the ordinary course of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiariesbusiness. The Company has made available to Parent Complete and accurate copies of all written contracts Material Contracts, including all amendments and commitments listed in Section 3.10 of supplements thereto, have been delivered to Parent. Each Company Material Contract is valid and binding on the Company Disclosure Scheduleand each Subsidiary party thereto and, summaries of all oral contracts and commitments listed in Section 3.10 of to the Company Disclosure ScheduleCompany’s Knowledge, each other party thereto, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect. With respect to the Material Contracts, (ii) neither the Company Company, the Subsidiaries nor, to the Company’s Knowledge, any other party to any such contract has failed to perform any material obligation thereunder or applicable Subsidiary, as the case may beis in material breach thereof or default thereunder, and, to the knowledge of the Company’s Knowledge, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists thatwhich, with the giving of notice, notice or the passage lapse of time, or both, would constitute such a default by the Company material breach or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractdefault.
Appears in 1 contract
Contracts and Commitments. Except as set forth in Schedule 2.17 or in the Company SEC Reports or on Section 3.10 SICC Financial Statements, neither SICC nor any of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries Subsidiaries: (a) is a party to any contract, obligation, understanding or bound by commitment (whether written or oral) that involves a potential or actual commitment or aggregate payments to or from SICC or any Subsidiary in excess of $50,000 in a calendar year, or which is otherwise material and not entered into in the ordinary course of business; (b) has any employment contracts, stock redemption or purchase agreements, financing agreements, collective bargaining agreements, consulting or management services agreements, independent contractor agreements, or agreements with any current or former officers, directors, employees or shareholder of SICC or any Subsidiary, or to any Persons or organizations related to or Affiliated with any such Persons; (c) has any contract or arrangement concerning directory publishing matters or billing and collection matters; (d) has any contract or arrangement that limits the ability of any of SICC or any Subsidiary to compete in any line of business or to compete with any other Person; (e) has any contract relating to any Indebtedness or any guarantee or indemnification of or the granting of security for Indebtedness or any other obligation or liability; (f) has any contract relating to E911 services, interconnection or co-location arrangements, or other arrangements with any local exchange carrier, competitive access provider or other telecommunications carrier; (g) has any contract relating to licenses to or from SICC or any Subsidiary with respect to software or hardware used in the businesses of any of SICC or any Subsidiary; (h) has any contract relating to any indemnity obligations of any of SICC or any Subsidiary, (i) has entered into any joint venture or partnership agreement, (j) has granted powers of attorney to a third person, or (k) has any agreement or commitment relating to the acquisition or divestiture of the capital stock or other equity securities of any Person. To the Knowledge of SICC and each Shareholder, neither SICC nor any Subsidiary is in default under any material agreement, instrument, contract, commitment or other written instrument of the following type:
(a) any loan agreementobligation, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement understanding or commitment (i) with respect to and there is no state of facts which the aggregate amount that could reasonably be expected to be paid by the Company upon notice or any lapse of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, time or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”). Except as disclosed in Section 3.10 of the Company Disclosure Schedule (i) each of the Material Contracts is in full force and effect, (ii) the Company or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, (iii) the Company or applicable Subsidiary, as the case may be, has not given or received any notice of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, both would constitute such a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contractdefault.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fairpoint Communications Inc)
Contracts and Commitments. (a) Except as set forth in on Schedule 3.19(a) hereto, neither the Company SEC Reports Company, its Subsidiary nor any of their properties or on Section 3.10 other assets is subject to any:
(i) covenant not to compete or other covenant (A) limiting or restricting the development, manufacture, marketing, distribution or sale of any of the products or services of the Company Disclosure Schedule, none and its Subsidiary or any future line extension of such products or services into other forms or (B) limiting or restricting the ability of the Company or its Subsidiary to enter into any market or line of business or to compete with any other Person;
(ii) Contract that contains a “most-favored nation” or “most-favored-customer” clause;
(iii) Contract with any Affiliate of the Company or its Subsidiaries is a party Subsidiary or any director, officer, shareholder or employee of the Company or its Subsidiary;
(iv) Contract requiring expenditures or fees in excess of $50,000 in any twelve-month period;
(v) continuing Contract for the future purchase or price of raw materials, supplies or equipment which involves or would reasonably be expected to involve the payment by the Company or bound by its Subsidiary of more than $75,000 in any agreementtwelve month period;
(vi) management, contractemployment, commitment consulting, severance, change in control or other written instrument similar type of Contract;
(vii) Third Party License or Contract under which the Company or its Subsidiary is licensee or licensor of any Intellectual Property of the following type:Company or its Subsidiary and Company Products;
(aviii) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, pledge, security agreement, pledge agreement, deed of trust, bondloan agreement, notecredit agreement, guarantyindenture, suretyconditional sale or title retention agreement, trust equipment financing obligation or other instrument or agreement and/or other granting an Encumbrance upon any of the properties or assets of the Company or its Subsidiary;
(ix) collective bargaining agreement or instrument other Contract with any labor union or association representing employees;
(x) Contract regarding the release, transportation or disposal of Hazardous Substances, or the clean-up, abatement or other action relating to Hazardous Substances or Environmental Laws;
(ixi) Contract establishing or creating any partnership, joint venture, limited liability company, limited liability partnership or similar entity;
(xii) Contract to make any capital expenditures or capital additions or improvements with commitment in excess of $20,000 in any twelve-month period or in excess of $50,000 in the borrowing aggregate over the term of money such Contract;
(xiii) Contract relating to the storage or obtaining extensions warehousing of credit any inventory or products of the Company or its Subsidiary, or the charter or purchase of transportation or shipping services, in each case with a commitment in excess of $10,000;
(xiv) guarantees or other Contracts in respect of any indebtedness of any Person;
(xv) Contract providing for the indemnification by the Company or its Subsidiary of any current or former director, officer or employee of the Company or its Subsidiaries or (ii) the loaning of money or granting extensions of credit Subsidiary (other than student loanstheir respective governing documents);
(xvi) by Contract containing exclusivity obligations or restrictions with respect to the operation of the business of the Subsidiary that are binding on the Company or the Subsidiary and would remain binding on the Company, the Subsidiary, Parent or the Buyer or any of its Subsidiaries;their respective Affiliates after the Closing; or
(xvii) Settlement agreements providing for continuing obligations or restrictions binding on the Company or the Subsidiary that would be binding on the Company, the Subsidiary, Parent or the Buyer or any of their respective Affiliates after the Closing. Contracts required to be disclosed on Schedule 3.19(a) hereto pursuant to this Section 3.19(a) are hereinafter referred to as “Material Contracts.”
(b) any agreement pursuant Each Material Contract that requires the consent or waiver of a third party prior to which consummation of the transactions contemplated by this Agreement in order to avoid a breach or violation of, or default under, such Material Contract is identified and marked by an asterisk on Schedule 3.19
(a) hereto. Each Material Contract is a valid and binding obligation of the Company or any its Subsidiary, in full force and effect and enforceable in accordance with its terms, subject to the effects of its Subsidiaries has purchasedbankruptcy, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to the extension or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries good faith and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Property Right (as defined in Section 3.19(c));
(k) any contract or agreement with any Governmental Authority;
(l) any material sales, marketing or advertising agreement;
(m) any employment contract;
(n) any student loan guaranty or surety agency agreement; or
(o) any other contract, agreement or commitment (i) with respect to which the aggregate amount that could reasonably be expected to be paid by the Company or any of its Subsidiaries would exceed One Million Dollars ($1,000,000) in any twelve (12)-month period following the date of this Agreement, or (ii) that is otherwise material to the Company or any of its Subsidiaries. The Company has made available to Parent copies of all written contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, summaries of all oral contracts and commitments listed in Section 3.10 of the Company Disclosure Schedule, and all modifications and supplements thereto (collectively, the “Material Contracts”)fair dealing. Except as disclosed in Section 3.10 Schedule 3.19(b) hereto, neither the Company, its Subsidiary nor, to the Company’s knowledge, any other party to any Material Contract, is in violation of or in default under any Material Contract, nor, to the Company Disclosure Schedule Company’s knowledge, has any event occurred or circumstance or condition exist, that (with or without notice, lapse of time or both) would reasonably be expected to (i) each result in a violation of the or default under any Material Contracts is in full force and effectContract, (ii) give any party the Company right to cancel or applicable Subsidiary, as the case may be, and, to the knowledge of the Company, all other parties to the terminate or modify any Material Contracts have, in all material respects, performed their obligations and are not in default under the Material Contracts, Contract or (iii) give any party to any Material Contract the Company right to seek damages or applicable Subsidiaryother remedies. Except as set forth in Schedule 3.19(a) hereto, as there have been no oral or written modifications, amendments or waivers with respect to of any of the case may be, has not given or received any notice terms of default under any of the Material Contracts, (iv) no event has occurred or condition exists that, with the giving of notice, the passage of time, or both, would constitute a default by the Company or applicable Subsidiary, as the case may be, or, to the knowledge of the Company, any other party under any of the Material Contracts, (v) neither the Company or applicable Subsidiary, as the case may be, nor, to the knowledge of the Company, any other party has waived, or extended the time for the performance of, any material obligations under the Material Contracts and (vi) neither the execution of this Agreement nor the consummation of the Offer or the Merger shall (A) constitute a default under, (B) give rise to cancellation rights under, (C) require the giving of notice to any third party under, (D) require the consent of any counterparty under, or (E) otherwise adversely affect any of the rights of the Company or any Subsidiary under, any Material Contract.
Appears in 1 contract
