Contracts and Commitments. (a) Schedule 4.21(a) lists the following Contracts to which any Citywide Entity is a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”): (i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract; (ii) any written or oral Contract relating to any severance pay for any Person; (iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control; (iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date; (v) any (A) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts; (vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity; (vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan; (viii) any Contract for capital expenditures in excess of $50,000; (ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement; (x) any Contract with a Governmental Entity; (xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software); (xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks); (xiii) any Contract the costs of which are Transaction Expenses; and (xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Business. (b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(a) lists Except as specifically contemplated by this Agreement and except as set forth on the following "Contracts to which any Citywide Entity is a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)Schedule" attached hereto, the “Material Contracts”):Company is not a ------------------ party to or bound by, whether written or oral, any:
(i) any employment, agency, collective bargaining Contract agreement or consulting contract with any labor union or independent contractor Contractany 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 written contract for the employment of any officer, individual employee or oral Contract relating to other person on a full-time or consulting basis or any severance pay for any Personagreements;
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon a change of controlits assets;
(iv) contract under which the Company has advanced or loaned any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate other Person amounts in the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateaggregate exceeding $10,000;
(v) any (A) contract or group of related contracts with the same party for the purchase or sale of products or services, agreement under which the undelivered balance Company has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(vi) agreements with respect to the lending or investing of such products and services has a purchase price funds;
(vii) license or royalty agreements;
(viii) guaranty of any obligation, other than endorsements made for collection;
(ix) 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 $50,000 for 10,000 annually;
(x) lease or agreement under which it is lessor of or permits any individual contract third party to hold or $100,000 for operate any group of related contracts in the aggregateproperty, real or personal, owned or controlled by it;
(Bxi) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ days or less notice without penalty penalties or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts10,000;
(vixii) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banksworld; and (B) evidencing deposit Liabilities of Citywide Banks);or
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract agreement material to the businesses of the Citywide Entities, taken as a whole, which is it whether or not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b)the Contracts Schedule, (i) each 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 any Seller has knowledge of any anticipated breach by any other party to any contract set forth on the Citywide Entities Contracts Schedule, (ii) no customer or supplier has indicated in writing ------------------ or orally to the Company, or any Seller that it shall stop or decrease the rate of business done with the Company or that it desires to renegotiate its contract or current arrangement with the Company, (iii) the Company has performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth required to be disclosed on the Contracts Schedule 4.21(a)and is not in ------------------ default under or in breach of any contract or commitment required to be disclosed on the Contracts Schedule, and none no event has occurred which with the ------------------ passage of time or the Citywide Entities is giving of notice or both would result in receipt of any claim of a default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebybreach thereunder, (iiiv) none of the Citywide Entities Company has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment contract set forth on Schedule 4.21(a)the Contracts Schedule, and (iiivi) to the Knowledge of Citywideeach agreement is legal, there has been no cancellationvalid, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a)binding, except for any cancellation, breach or anticipated breach which would not, individually or ------------------ enforceable and in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect full force and effect and will continue as such following the consummation of the transactions contemplated hereby.
(c) The Sellers have 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 Contracts Schedule). The ------------------ Contracts Schedule contains an accurate and complete description of all material ------------------ terms of all oral contracts referred to therein.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on Schedule 4.21(a) lists 4.13, the following Contracts to which any Citywide Entity Company is not a party to any: (i) collective bargaining agreement with any labor union; (ii) bonus, pension, profit sharing, retirement or subject other form of deferred compensation plan; (iii) stock purchase, stock option, stock appreciation or similar plan; (iv) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis involving an annual compensation commitment by the Company; (v) agreement or indenture relating to the borrowing of money or mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the Company's assets; (vi) guaranty of any obligation for borrowed money; (vii) lease or agreement under which it is bound lessee of, or holds or operates any personal property owned by any other party; (such Contracts required to be listed on Schedule 4.21(a), viii) contract or group of related contracts with the “Material Contracts”):
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(ii) any written or oral Contract relating same party for the supply of wine to any severance pay for any Person;
(iii) any written Person or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
deliveries extending beyond December 31, 2000; (v) any (Aix) contract or group of related contracts with the same party for the purchase or sale of products inventories, supplies or services, under which the undelivered balance of such products and inventories, supplies or services has a purchase selling price in excess of $50,000 for any individual contract or $100,000 for any group of related (other than contracts to purchase fruit in the aggregate, or ordinary course of business in an amount less than $200,000; (Bx) other contract or group of related contracts with the same party continuing over a period for the sale of more than six months from products or services; (xi) contract which prohibits or limits the date or dates thereof, which is not entered into Company in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities respect from freely engaging in business anywhere in the world United States or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity anywhere else in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
world; or (xii) any Contract relating other contract or commitment involving the payment by or to Indebtedness the Company of $10,000 or more than (whether in cash or other assets) in any twelve (12) month period or $500,000 of any 50,000 or more (whether in cash or other assets) in the aggregate over the life of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Businesscontract.
(b) Except as disclosed 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 4.21(b)4.13, together with all material amendments, arbitration decisions and grievance settlements related to collective bargaining agreements and contracts with any labor union, waivers or other changes thereto.
(ic) each of the Citywide Entities has performed all obligations required Each contract listed on Schedule 4.13 is legal, valid, binding, enforceable and in full force and effect, and will continue to be performed by it prior to the date hereof legal, valid, binding, enforceable and in connection with the Contracts or commitments set forth on Schedule 4.21(a), full force and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the effect following consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of . The Company is not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellationin default, breach or anticipated breach by any other party to any Contract violation (or commitment set forth on Schedule 4.21(a), except for any cancellationwould be in default, breach or anticipated breach which would notviolation with notice or lapse of time, individually or in the aggregate, have a Material Adverse Effect both) under any contract listed on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebySchedule 4.13.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(aExcept as disclosed in SCHEDULE 3.13(A) lists of the following Contracts to which Company Disclosure Schedules, neither the Company nor any Citywide Entity Subsidiary is a party or subject or by which it is bound to any (such Contracts required to be listed on Schedule 4.21(a)collectively, the “"Material Contracts”"):
(i) any employment, agency, collective bargaining Contract agreement or consulting or independent contractor Contractcontract with any labor union;
(ii) any written bonus, pension, profit sharing, retirement, or oral Contract relating to any severance pay for any Personother form of deferred compensation plan;
(iii) any written hospitalization insurance or oral Contract creatingsimilar plan or practice, modifying, memorializing whether formal or otherwise related to any obligation of any Citywide Entity upon a change of controlinformal;
(iv) contract for the employment of any Contract officer, individual employee, or other person on a full-time or consulting basis or relative to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of severance pay for any such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateperson;
(v) agreement or indenture relating to the borrowing of money in excess of $10,000 or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(Avi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection;
(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 an annual rental in excess of $10,000;
(viii) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual 10,000;
(ix) contract or $100,000 for any 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 the aggregate, or excess of $10,000;
(Bx) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ ' or less notice without penalty or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts10,000;
(vixi) contract which prohibits the Company or any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities Subsidiary from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)world;
(xii) any Contract contract relating to Indebtedness of more than $500,000 of any the distribution of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks)Company's or any Subsidiary's products;
(xiii) any Contract the costs of which are Transaction Expenses; andfranchise agreement;
(xiv) contract, agreement or understanding with any shareholder who beneficially owns five percent (5%) or more of the Company Common Stock or with any officer, director or employee (other Contract than for employment on customary terms);
(xv) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company or any Subsidiary in connection with the proprietary rights as disclosed on SCHEDULE 3.14 of the Company Disclosure Schedules; or
(xvi) other agreement material to the businesses of the Citywide Entities, taken as a whole, which is Company's or any Subsidiary's business or not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as specifically disclosed on Schedule 4.21(b)SCHEDULE 3.13(B) of the Company Disclosure Schedules, (i) each no contract or commitment required to be disclosed under such caption has been breached or canceled by the other party; (ii) since the date of the Citywide Entities balance sheet included in the Company's Interim Financial Statements, no customer or supplier has indicated that it will stop or decrease the rate of business done with the Company or any Subsidiary, except for changes in the ordinary course of the Company's and the Subsidiaries' businesses; (iii) the Company and the Subsidiaries have performed all obligations required to be performed by it prior to the date hereof them in connection with the Contracts contracts or commitments set forth on Schedule 4.21(a), required to be disclosed under such caption and none of the Citywide Entities is are not in receipt of any claim of default under any Contract contract or commitment set forth on Schedule 4.21(a), except for required to be disclosed under such caption; (iv) neither the Company nor any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities Subsidiary has any present expectation or intention of not fully performing any material obligation pursuant to any Contract contract or commitment or commitment set forth on Schedule 4.21(a), under such caption; and (iiiv) to neither the Knowledge Company nor any Subsidiary has any knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by any other party to any Contract contract or commitment set forth under such caption.
(c) Prior to the date of this Agreement, Parent has been supplied with a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, disclosed on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation SCHEDULE 3.13 of the transactions contemplated herebyCompany Disclosure Schedules, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(a) SCHEDULE 3.14 lists the following Contracts agreements, whether oral or written, to which any Citywide Entity Enterprise is a party or subject or by party, which it is bound (such Contracts required are currently in effect, and which relate to be listed on Schedule 4.21(a), the “Material Contracts”):
Transferred Assets: (i) any employment, agency, collective bargaining Contract agreement or consulting or independent contractor Contract;
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) contract for the employment of any written officer, individual employee or oral Contract other person on a full-time or consulting basis or relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
person; (v) confidentiality agreement; (vi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the Transferred Assets; (Avii) guaranty of any obligation for borrowed money or otherwise; (viii) contract or group of related contracts with the same party for the purchase or sale of products or services, services under which the undelivered balance of such products and or services has a purchase price is in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or 10,000; (Bix) other contract or group of related contracts with the same party continuing over for the sale of products or services under which the undelivered balance of such products or services has a period sales price in excess of more than six months from the date or dates thereof, $10,000; (x) contract which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities prohibits Enterprise from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
world; (xi) any Contract pursuant to which any of contract for the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 distribution of any of the Citywide Entities products that comprise Transferred Assets; (other than, in the case of Citywide Banks, deposit agreements: (Axii) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banksfranchise agreement; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract license agreement or agreement providing for the costs payment or receipt of which are Transaction Expensesroyalties or other compensation by Enterprise in connection with the Intellectual Property Rights related to the Transferred Assets; and
(xiv) any other Contract agreement which is either material to the businesses of the Citywide Entities, taken as a whole, which is Transferred Assets or was not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities Enterprise has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth on Schedule 4.21(a), required to be disclosed in SCHEDULE 3.14 and none of the Citywide Entities is not in receipt of any claim of default under any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities be disclosed under such schedule; Enterprise has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract contract or commitment set forth on Schedule 4.21(a), required to be disclosed under such caption; and (iii) to the Knowledge Enterprise has no knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by any other party to any Contract contract or commitment required to be disclosed under such caption.
(c) Prior to the date of this Agreement, SSI has been supplied with a correct and complete copy of each written contract or commitment, and a written description of each oral contract or commitment, set forth on Schedule 4.21(a)SCHEDULE 3.14 together with all amendments, except for any cancellation, breach waivers or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyother changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(a) lists Except as set forth on the following Contracts to which Schedule, neither the Company nor any Citywide Entity of its Subsidiaries is a party to any: (i) collective bargaining agreement or subject agreement with any union; (ii) bonus, pension, profit sharing, retirement or by other form of deferred compensation plan, other than as set forth in Section 5.14 or the Disclosure Schedules relating thereto; (iii) stock purchase, stock option or similar plan; (iv) contract for the employment of any officer, individual employee or other person on a full‑time or consulting basis which is not cancellable without material penalty or without more than ninety (90) days’ notice; (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 or any of its Subsidiaries; (vi) guaranty of any Indebtedness or other material guaranty; (vii) lease or agreement under which it is bound lessee of personal property, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred fifty thousand dollars (such Contracts required $150,000); (viii) lease or Contract under which it is lessor of or permits any third‑party to be listed on Schedule 4.21(ahold or operate any property, real or personal, for which the annual rental exceeds one hundred fifty thousand dollars ($150,000); (ix) other than purchase orders entered into in the ordinary course of business, the “Material Contracts”):
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(ii) any written or oral Contract relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts with any supplier required to be listed on the same party for the Customers and Suppliers Schedule; (x) other than purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts orders entered into in the aggregateordinary course of business, or (B) other contract or group of related contracts with any customer required to be listed on the same party continuing over a period of more than six months from Customers and Suppliers Schedule; (xi) Contract which prohibits the date Company or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities its Subsidiaries from freely engaging in business anywhere in any geographic area; (xii) contracts relating to the world or prohibiting the solicitation of the employees or contractors granting of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights licenses or other similar Contract rights (including any covenant not to xxx or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants assert or makes available, or is granted or receivesother immunity from suit, any license or other right requiring an expenditure in excess of $100,000 annuallyfirst refusal, and any right of first negotiation) with respect to any material Intellectual Property in each case that is reasonably necessary (a) by the Company or any of its Subsidiaries to operate a third‑party, or (b) by a third‑party to the businesses Company or any of such Citywide Entity in the Ordinary Course of Business consistentits Subsidiaries, in and, the case of Citywide Banks(b), with safe and sound banking practices involving consideration in excess of one hundred fifty thousand dollars ($150,000) per annum; (xiii) all other agreements affecting the Company’s or any of its Subsidiaries’ ability to use or disclose any Intellectual Property, in each case, other than (A) non-exclusive licenses to for commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of available, off‑the‑shelf software used by the Company or any of the Citywide Entities (other thanits Subsidiaries, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities customary non-disclosure agreements entered into by the Company for the disclosure or receipt of Citywide Banks);
(xiii) any Contract confidential information in the costs ordinary course of which are Transaction Expensesbusiness; and
and (xiv) contracts relating to the acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person or 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 line of business; (xv) contract involving aggregate consideration in excess of one hundred fifty thousand dollars ($150,000) and which, in each case, cannot be cancelled by the Company without penalty or without more than ninety (90) days’ notice; (xvi) contract with any Governmental Body, (xvii) contract that provides for any joint venture, partnership or similar agreement by the Company; (xviii) contract that is not previously disclosed pursuant to this Section 5.10(a) that provides for the indemnification by the Company of any Person or assumption of any Tax or environmental Liability of any Person; or (xix) any other Contract contract that is material to the businesses of the Citywide Entities, taken as a whole, which is Company and not entered into in the Ordinary Course of Businesspreviously disclosed pursuant to this Section 5.10(a).
(b) Each of the contracts listed or required to be listed on the Contracts Schedule is in full force and effect, and is the legal, valid and binding obligation of the Company or the Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms. Except as disclosed 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 knowledge of the Company, the other party to each of the contracts listed on the Contracts Schedule 4.21(b)is not in default thereunder. Except as set forth on the Contracts Schedule, no event has occurred that with the lapse of time or the giving of notice or both would constitute a breach or default on the part of the Company, or any Subsidiary of the Company or, to the knowledge of the Company, any other party under any contract listed on the Contracts Schedule. To the knowledge of the Company, (i) each of no party to any contract listed on the Citywide Entities Contracts Schedule has performed all obligations required to be performed by it prior exercised, or expressed in writing delivered to the date hereof in connection Company or its Subsidiaries that it will exercise, any termination or amendment rights with the Contracts or commitments set forth on Schedule 4.21(a)respect thereto, and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none no party has given written notice of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant dispute with respect to any Contract or commitment set forth contract listed on Schedule 4.21(a), and (iii) the Contracts Schedule. The Company has made available to the Knowledge Purchaser true and correct copies of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect each contract listed on the Citywide Entities Contracts Schedule, together with all amendments, modifications or materially adversely affect the consummation of the transactions contemplated herebysupplements thereto and waivers thereunder.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(aExcept as set forth on the attached Contracts Schedule, neither the Company nor any of its Subsidiaries is party to or bound by any: (i) lists collective bargaining agreement or any other agreement with any labor union, or severance agreements, programs, policies or arrangements; (ii) equity purchase, option or similar plan; (iii) contract or agreement for the following Contracts employment of any officer, individual employee or other person on a full-time or consulting basis providing for or resulting in aggregate compensation in excess of $200,000 per annum, or any consulting or employment agreement with a health care provider entered into in the past twelve (12) months; (iv) agreement or indenture relating to which the borrowing of money or to mortgaging, pledging or otherwise placing a Lien, except for Permitted Liens, on any Citywide Entity is a party material portion of the assets of the Company and its Subsidiaries; (v) guaranty of any obligation for borrowed money or subject other material guaranty; (vi) lease or by agreement under which it is bound lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $50,000; (such Contracts required vii) lease or agreement under which it is lessor of or permits any third party to be listed on Schedule 4.21(a)hold or operate any property, real or personal, for which the “Material Contracts”):
annual rental exceeds $50,000; (i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(ii) any written or oral Contract relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (Aviii) contract or group of related contracts with the same party for the purchase or sale of products or services, under services which provided for payments by the undelivered balance of such products and services has a purchase price Company or its Subsidiaries in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in 200,000 during the aggregate, or (B) other contract or group of related contracts with the same party continuing over a trailing twelve-month period of more than six months from ending on the date of the Latest Balance Sheet or dates thereof, which is not entered into in reasonably expected as of the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more date hereof to be greater than $50,000 for 200,000 during any individual contract calendar year beginning on or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivityafter January 1, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
2013; (ix) agreements relating to any partnership, joint venture, limited liability company, shareholder, investor rights completed or other similar Contract pending material business or arrangement;
product acquisition by the Company or its Subsidiaries within the last three (3) years; (x) material license or royalty agreement relating to the use of any Contract with a Governmental Entity;
third party Intellectual Property (other than off-the-shelf software) for which the royalty payments exceeded $100,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet or which is reasonably expected as of the date hereof to be greater than $100,000 during any calendar year beginning on or after January 1, 2013 (other than employment agreements); (xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any material license or other right requiring an expenditure in excess royalty agreement relating to the use by a third party of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate owned by the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
Company; (xii) contract or agreement with any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide BanksAffiliate; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) agreement that contains covenants materially limiting the freedom of the Company to compete in any Contract business, industry or geographic area or requiring the costs Company or its Subsidiaries to exclusively sell, buy, lease or distribute products of any Person or which are Transaction Expensescontain pricing protection or “most favored nation” provisions or minimum purchase or minimum sale obligations; and
(xiv) any other Contract material to the businesses of the Citywide Entitiescontract with minimum purchase commitments or “take or pay” contract terms; (xv) distribution, taken as a wholevendor, which is not entered into dealership, franchise or service agreement (excluding purchase orders issued or received in the Ordinary Course of Business) relating to the distribution, marketing or sale of its products or services; (xvi) warranty agreement with respect to products sold or services rendered by the Company, co-promotion agreement or managed care contract; (xvii) settlement, conciliation or similar agreement with any governmental entity or pursuant to which the Company will be required after the execution date of this Agreement to pay consideration in excess of $25,000; (xviii) agreement with a Governmental Entity; or (xix) material agreement relating to the subcontracting to another Person of the Company’s obligations under any agreement identified pursuant to items (i) through (xviii) above.
(b) Except as disclosed set forth on the Contracts Schedule, true and correct copies of all written contracts, agreements, settlements and instruments which are referred to on the Contracts Schedule 4.21(b)have been made available to the Purchaser and the Merger Sub, in each case together with all amendments, waivers or other changes thereto. The Contracts Schedule contains an accurate and complete description of all material terms of all oral contracts referred to therein.
(c) Neither the Company nor its Subsidiaries is in default in any material respect under any contract, agreement, settlement or instrument listed on or required to be listed on the Contracts Schedule, and each such contract, agreement, settlement or instrument is valid, binding, enforceable and in full force and effect as it relates to the Company and its Subsidiaries and, to the Company’s knowledge, as it relates to the other parties thereto, in each case 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. No event has occurred that with the passage of time or the giving of notice or both would result in a material default, breach or event of noncompliance by the Company or any of its Subsidiaries or, to the Company’s knowledge, any other party under any such contract, agreement, settlement or instrument required to be listed on the Contracts Schedule. Except as set forth on the Contracts Schedule, with respect to each contract, agreement, settlement or instrument required to be set forth on the Contracts Schedule: (i) each neither the Company nor any of its Subsidiaries has received written notice of the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), and none of the Citywide Entities is in receipt intention of any claim party to such contract, agreement, or instrument to decrease the rate of default under business, cancel, terminate or renegotiate any Contract such contract, agreement or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, instrument; and (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of CitywideCompany’s knowledge, there has not been no cancellation, breach or anticipated any breach by any other party to any Contract such contract, agreement, settlement or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyinstrument.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in Schedule 4.21(a) lists the following Contracts to which any Citywide Entity 4.12 hereto, neither Seller is a ------------- party to or subject bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):
any: (i) any employment, agency, collective bargaining Contract agreement or consulting contract with any labor union, whether formal or independent contractor Contract;
informal; (ii) contract for the employment of any written officer, individual employee or oral Contract relating to other person on a full-time, part-time or consulting basis or any severance pay for any Person;
agreements; (iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon a change of control;
the Purchased Assets; (iv) any Contract to repurchase assets previously sold (license or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
royalty agreements; (v) lease or agreement under which either Seller is lessee of, or holds or operates, any personal property owned by any other party; (Avi) lease or agreement under which either Seller is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it; (vii) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or services, under other personal property or for the furnishing or receipt of services which the undelivered balance of such products and services has a purchase price in excess of $50,000 either calls for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other contract or group of related contracts with the same party continuing performance over a period of more than six months or involves a sum in excess of $10,000 or which may not be terminable with less than six months' notice; (viii) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $10,000; (ix) franchise agreements; (x) contracts with any Insider; (xi) agreements, contracts or understandings pursuant to which either Seller subcontracts work to third parties; (xii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the date world; or dates thereof, which is (xiii) any other agreement material to Sellers whether or not entered into in the Ordinary Course ordinary course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Businessbusiness.
(b) Except as disclosed on in Schedule 4.21(b)4.12, (i) each all of the Citywide Entities contracts, ------------- agreements and instruments set forth of Schedule 4.12 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) no contract or commitment required to be disclosed on Schedule 4.12 has been ------------- breached or canceled by the other party since December 31, 1997, (iii) no material customer or supplier has indicated that it will stop or decrease the rate of business done with either Seller, (iv) Sellers have performed all of the obligations required to be performed by it prior to the date hereof Sellers in connection with the Contracts contracts or commitments set forth required to be disclosed on Schedule 4.21(a)4.12, and none of the Citywide Entities is are not in receipt of any claim of default ------------- under any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect be disclosed on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebySchedule 4.12, ------------- (iiv) none of the Citywide Entities has any Sellers have no present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment contract set forth on Schedule 4.21(a)4.12 hereto, and (iiivi) to the Knowledge ------------- Sellers have no knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by any other party to any Contract or commitment contract set forth on Schedule 4.21(a)4.12. -------------
(c) Neither Seller is a party to any contract or agreement under which it is required to purchase or sell goods or services or lease property above or below (as the case may be) prevailing market prices and rates.
(d) Sellers have provided Buyer with a true and correct copy of all written contracts which are referred to on Schedule 4.12 and has made available ------------- to Buyer those which are not required to be disclosed on Schedule 4.12, except for any cancellationin each ------------- case together with all amendments, breach waivers or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation other changes thereto. Schedule -------- 4.12 contains an accurate and complete description of the transactions contemplated herebyall material terms of all ---- oral contracts referred to therein.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(a) lists Except for this Agreement and the following other agreements contemplated hereby or as set forth on the attached Contracts to which any Citywide Entity Schedule, the attached ------------------ Transferred Intellectual Property Rights Schedule, the attached Employee ------------------------------------------------- -------- Schedule, or the attached Employee Benefits Schedule, Zecal is not a party to or subject -------- -------------------------- bound by any written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):oral:
(i) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any employmentother employee benefit plan, agencyarrangement or practice, collective bargaining Contract or consulting severance agreements, programs, policies or independent contractor Contractarrangements, in each case, whether formal or informal;
(ii) collective bargaining agreement or any written or oral Contract relating to other contract with any severance pay for any Personlabor union;
(iii) any written or oral Contract creatingmanagement agreement, modifying, memorializing or otherwise related to any obligation contract for the employment of any Citywide Entity officer, individual, employee or other Person on a full-time, part-time, consulting or other basis or providing for the payment of any cash or other compensation or benefits upon a change the consummation of controlthe transactions contemplated hereby;
(iv) contract under which it has advanced or loaned monies to any Contract to repurchase assets previously sold (or to indemnify other Person or otherwise compensate the purchaser in respect of such assets)agreed to advance, except for securities sold under a repurchase agreement providing for a repurchase date 30 days loan or less after the purchase dateinvest any funds;
(v) agreement or indenture relating to the mortgaging, pledging or otherwise placing a Lien on any of its assets or stock;
(Avi) lease or agreement under which Zecal is lessee of or holds or operates any personal property owned by any other Person, except for any lease of personal property under which the aggregate annual rental payments do not exceed $25,000;
(vii) lease or agreement under which Zecal is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by Zecal;
(viii) with respect to the Transferred Intellectual Property Rights, any nondisclosure or confidentiality agreements;
(ix) contract or group of related contracts with the same party or group of affiliated parties for the purchase or sale of products equipment, Transferred Intellectual Property Rights or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts other property (other than inventory in the aggregate, or ordinary course of business);
(Bx) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 Zecal upon thirty (30) days’ ' or less notice without payment of any penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entityamount;
(xi) any Contract pursuant material contract relating to which any the marketing, sale, advertising or promotion of the Citywide Entities grants its products or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)services;
(xii) warranty agreement with respect to products sold or services provided or indemnity agreement with any Contract supplier under which it is obligated to indemnify such supplier against product liability claims (other than Zecal's standard warranty terms, if any, a true and complete copy of which is attached to the Contracts Schedule); ------------------
(xiii) agreements relating to Indebtedness the ownership of more than $500,000 of or investments in any of the Citywide Entities business or enterprise, including investments in joint ventures;
(xiv) assignment, license, royalty, indemnification or other than, in the case of Citywide Banks, deposit agreements: agreement with respect to any intangible property (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banksincluding any Transferred Intellectual Property Rights);
(xiiixv) broker, agent, sales representative, sales or distribution agreement or agreement relating to the export and/or import of any Contract the costs of which are Transaction Expenses; andgoods or equipment;
(xivxvi) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xvii) other Contract agreement which is material to the businesses of the Citywide Entitiesits operations or business prospects, taken as a whole, which is whether or not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) All of the contracts, agreements and instruments set forth or required to be set forth on the Contracts Schedule, the Transferred Intellectual ------------------ ------------------------ Property Rights Schedule, the Employees Schedule and the Employee Benefits ------------------------ ------------------ ----------------- Schedule are legal, 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 that neither of the HTI Companies makes any representation or warranty as to the assignability or transferability of any such contract which is not a material contract (i.e., any such contract which is not required to be delivered pursuant to this Section 7.12). Except as disclosed on Schedule 4.21(b)expressly described in the Contracts Schedule, (i) each of the Citywide Entities Zecal has performed all obligations required to be performed ------------------ by it prior to the date hereof under such contracts, agreements and instruments and is not in connection with the Contracts default under or commitments set forth on Schedule 4.21(a), and none in breach of the Citywide Entities is nor in receipt of any claim of default or breach under any Contract such contract, agreement or commitment set forth on Schedule 4.21(a)instrument; no event has occurred which it is foreseeable with the passage of time or the giving of notice or both would result in a default, except for breach or event of noncompliance by Zecal under any failures to performsuch contract, breaches agreement or defaults which would not, individually or in the aggregate, instrument; Zecal does not have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing all such obligations on a timely basis; Zecal has no knowledge of any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by the other parties to any other such contract, agreement or instrument; and Zecal is not a party to any Contract contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, that might reasonably be expected to have a Material Adverse Effect Effect.
(c) LLC's counsel has been supplied with a true and correct copy of each of the written instruments, plans, contracts and agreements and an accurate written description of each of the oral arrangements, contracts and agreements which are required to be disclosed on the Citywide Entities Contracts Schedule, the Transferred ------------------ ----------- Intellectual Property Rights Schedule, the Employees Schedule and the Employee ------------------------------------- ------------------ -------- Benefits Schedule together with all amendments, waivers or materially adversely affect the consummation of the transactions contemplated herebyother changes ----------------- thereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Heartland Technology Inc)
Contracts and Commitments. (i) Part 3.1(L)(i) of the AZNA Disclosure Letter lists the following Contracts, whether oral or written, to which AZNA is a party, which are currently in effect:
(a) Schedule 4.21(aany joint venture or partnership agreement;
(b) lists except for agreements with customers in the following Contracts Ordinary Course of Business, any confidentiality agreement;
(c) any Contract relating to which the voting of the Units or the election of directors of AZNA;
(d) any Citywide Entity is a party agreement or subject indenture relating to the borrowing of money or by placing an Encumbrance on any of the assets of AZNA;
(e) any guaranty of any obligation for borrowed money or otherwise;
(f) any lease agreement under which it is bound lessor or lessee of any property, real or personal, except leases for personal property involving less than $10,000 individually and $25,000 in the aggregate;
(g) any Contract (including, but not limited to, purchase orders);
(h) any Contract or group of related Contracts with the same party for the sale of products or services under which the undelivered balance of such Contracts required to be listed on Schedule 4.21(a), products or services has a sales price in excess of $10,000 over the “Material Contracts”):remaining term of the Contract;
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(ii) any written or oral Contract relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts Contracts with the same party not otherwise disclosed in Part 3.1(L)(i) of the AZNA Disclosure Letter (other than any Contract or group of related Contracts for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves and involving more than $50,000 for any individual contract or $100,000 in 10,000 over the aggregate for any group remaining term of related contractsthe Contract;
(vij) any Contract containing exclusivity, noncompetition which prohibits AZNA or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities other Affiliate from freely engaging in business any business, or which prohibits AZNA or any Affiliate from soliciting customers or any other business, anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entityworld;
(viik) any stock purchaseContract for the manufacture, stock optionsupply and/or distribution of the products or services of AZNA (including any distributor, restricted stock or restricted stock unit or stock incentive plansales and original equipment manufacturer contract);
(viiil) any franchise agreement, marketing agreement, or royalty agreement;
(m) any Contract or commitment for capital expenditures in excess of $50,00025,000;
(ixn) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangementagreement for the sale of any capital asset;
(xo) any agreement not otherwise disclosed in Part 3.1(L)(i) of the AZNA Disclosure Letter involving material non-contingent payment obligations by AZNA;
(p) any Contract with under which the rights of AZNA may be adversely affected as a Governmental Entityresult of the change in control of AZNA contemplated by this Agreement;
(xiq) any power of attorney granted by AZNA to any Governmental Body or other Person;
(r) any agreement which provides a rate guaranty extending more than one year after the date hereof;
(s) any Contract pursuant which gives any Person any right to which any of the Citywide Entities grants or makes available, or is granted or receives, any license intellectual property or other proprietary right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction ExpensesAZNA; and
(xivt) any other Contract agreement not otherwise disclosed in Part 3.1(L)(i) of the AZNA Disclosure Letter which is either material to the businesses business of the Citywide EntitiesAZNA, taken as a whole, which is or was not entered into in the Ordinary Course of Business.
(bii) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities AZNA has performed in all material respects all obligations required to be performed by it prior to the date hereof in connection with the Contracts required to be disclosed in the AZNA Disclosure Letter (whether or commitments set forth on Schedule 4.21(anot under the caption referencing this Section 3.1(L), ) and none of the Citywide Entities is are not in receipt of default in any claim of default material respect under any such Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities . AZNA has any no present expectation or intention of not fully performing any material obligation pursuant to any such Contract or commitment set forth on Schedule 4.21(a), and (iii) required to be disclosed in the AZNA Disclosure Letter. To the Knowledge of CitywideAZNA, there has been is no cancellation, current breach or anticipated breach by any other party to any Contract such Contract.
(iii) Prior to the date of this Agreement, Finisar has been supplied with a true and correct copy of each written Contract, and a written description of each oral Contract, referred to in the AZNA Disclosure Letter (whether or commitment set forth on Schedule 4.21(anot under the caption referencing this Section 3.1 (L)), except for any cancellationtogether with all amendments, breach waivers or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyother changes thereto.
Appears in 1 contract
Samples: Purchase Agreement (Finisar Corp)
Contracts and Commitments. (a) Except as set forth in Section 3.16 or in the "Commissions Schedule" attached hereto as Schedule 4.21(a1.2(i) lists or in Schedule 1.4(c) attached hereto or in the following "Contracts to which any Citywide Entity is a party Schedule" attached hereto as Schedule 3.10(a) or subject or by which it is bound (such in the "Customer Contracts required to be listed on Schedule" attached hereto as Schedule 4.21(a3.10(d), the “Material Contracts”):Company is not a party to any:
(i) any employmentbonus, agencypension, collective bargaining Contract profit sharing, retirement or consulting deferred compensation plan or independent contractor Contractstock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal, or severance agreements or arrangements or contracts requiring the Company to pay post-retirement medical benefits;
(ii) contract for the employment of any written officer, individual employee or oral Contract relating to any severance pay for any Personother person on a full-time, part-time or consulting basis;
(iii) any written or oral Contract creatingmortgaging, modifying, memorializing pledging or otherwise related to placing a lien on any obligation of any Citywide Entity upon a change of controlthe Closing Assets or the Interests;
(iv) guarantee of any Contract to repurchase assets previously sold (obligation for borrowed money or to indemnify or otherwise compensate otherwise, other than endorsements made for collection in the purchaser in respect ordinary course of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datebusiness;
(v) agreement or commitment with respect to the lending or investing of funds to or in other persons or entities;
(vi) license or royalty agreement related to the Business;
(vii) lease or agreement related to the Business under which it is lessee of or holds or operates any personal property owned by any other party;
(Aviii) lease or agreement related to the Business 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;
(ix) contract or group of related contracts related to the Business with the same party any customer for the purchase or sale of products or services, under which services other than the undelivered balance of such products and services has a purchase price Customer Contracts (as defined in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or Section 3.10(d) hereof);
(Bx) other contract or group of related contracts to the Business with the same any party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 thirty (30) days’ ' or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractspenalties;
(vixi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)world;
(xii) any Contract contract relating to Indebtedness the distribution of more than $500,000 its products or the performance of any of services as it relates to the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide BanksBusiness; and (B) evidencing deposit Liabilities of Citywide Banks);or
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material agreements related to the businesses of the Citywide Entities, taken as a whole, which is Business whether or not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as specifically disclosed on Schedule 4.21(b3.10(b) (the Contract Exception Schedule), (i) each no contract or commitment related to the Business has been breached in any respect by the Company or, to the best knowledge of the Citywide Entities Company and the Members, breached or canceled by the other party, (ii) since December 31, 1999, no carrier of the Business has notified the Company that it shall stop or decrease in any material respect the rate or volume of business done with the Company, (iii) the Company has in all material respects performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), of this Agreement and none of the Citywide Entities is not in receipt of any claim of default under any Contract material lease, contract, commitment or commitment other agreement related to the Business to which it is a party; (iv) no event has occurred which with the passage of time or the giving of notice or both would result in a material breach or material default under any lease, contract, instrument or other agreement related to the Business to which the Company is a party (for purposes of this Section 3.10(b)(iv) "material" shall mean any loss resulting from such breach or default equal to or greater than $1,000); and (v) the Company is not a party to any contract which contains restrictions, covenants or other limitations on the operations of the Business which are likely to be materially adverse to the Business's operations as presently conducted, financial condition, operating results or business prospects.
(c) Purchaser has been supplied with a true and correct copy of all written contracts which are referred to on the Contracts Schedule and Customer Contracts Schedule, together with all amendments, waivers or other changes thereto.
(d) Except as set forth on Schedule 4.21(a3.10(b), except for the Company and the Members have no knowledge of any failures to perform(i) pending or threatened termination, breaches cancellation, limitation, modification or defaults which would not, individually or change in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation any of the transactions contemplated herebyCompany's business relationship with any customer, carrier, producer or group of customers related to the Business or (ii) none changes or pending changes in any law, rule, regulation, technology, or business relationship or other circumstance related to the Business that could result in the loss of any customers, carriers or producers after the date hereof (other than changes and pending changes of general application to the markets in which the Company operates). Each contract, agreement or lease with customers of the Citywide Entities Company relating to the Business ("Customer Contracts") are listed on the "Customer Contract 15 Schedule" attached hereto as Schedule 3.10(d) and each such contract has been provided to Purchaser. Except as indicated on the Customer Contract Schedule, (A) each of the Customer Contracts is valid, enforceable and in full force and effect in accordance with the terms thereof, (B) there is no existing default by the Company or event or condition which, with notice or lapse of time or both, would constitute an event of default by the Company under any present expectation Customer Contract or, to the best knowledge of the Company or intention the Members, there is no existing default by any third party or event or condition which, with notice or lapse of not fully performing time or both, would constitute an event of default by any material obligation pursuant to third party under any Customer Contract, (C) no Customer Contract has been amended, modified, supplemented or commitment set forth on Schedule 4.21(a)otherwise altered orally, in writing or by course of conduct, and (iiiD) to the Knowledge of Citywideeach Customer Contract complies with all applicable laws, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyrules and regulations.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Clark/Bardes Inc)
Contracts and Commitments. (a) Schedule 4.21(a) lists a. Except as set forth under the following Contracts to which any Citywide Entity caption "Contracts" in the Disclosure Letter, Antigua is not a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):
any (i) any employment, agency, collective bargaining Contract agreement or consulting or independent contractor Contract;
contract with any labor union, (ii) bonus, pension, profit sharing, retirement, or other form of deferred compensation plan, (iii) hospitalization insurance or similar plan or practice, whether formal or informal, (iv) contract for the employment of any written officer, individual employee, or oral Contract relating other person on a full-time or consulting basis or 16 relative to any severance pay for any Person;
(iii) any written or oral Contract creatingsuch person, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) agreement or indenture relating to the borrowing of money in excess of $10,000 or to mortgaging, pledging or otherwise placing a lien on any of the assets of Antigua, (Avi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection, (vii) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, with aggregate remaining rental payments in excess of $10,000, (viii) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual 25,000, (ix) contract or $100,000 for any 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 the aggregateexcess of $25,000, or (Bx) other 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, which is not entered into in the Ordinary Course of Business and is either not other than contracts terminable by it on 30 thirty days’ ' or less notice without penalty or involves more involving less than $50,000 for any individual 25,000, (xi) contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities which prohibits Antigua from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchaseworld, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) sales representative or distribution agreement, or any Contract other contract relating to Indebtedness the sale or distribution of more than $500,000 of any of the Citywide Entities (other thanAntigua's products, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) contract, agreement or understanding with any Contract the costs of which are Transaction Expenses; and
Insider, (xiv) any license agreement or other Contract agreement providing for the payment or receipt of royalties or other compensation by or to Antigua, or (xv) other agreement material to the businesses of the Citywide Entities, taken as a whole, which is Antigua's business or not entered into in the Ordinary Course ordinary course of Business.business. 17
(b) b. Except as specifically disclosed on Schedule 4.21(b)under the caption "Contracts" in the Disclosure Letter, (i) each to the knowledge of the Citywide Entities Shareholders, no contract or commitment required to be disclosed under such caption has been breached or canceled by the other party, (ii) since December 31, 1996, no customer or supplier has notified Antigua that it will stop or materially decrease the rate of business done with Antigua, except for changes in the ordinary course of Antigua's business, (iii) Antigua has performed in all material respects all obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth on Schedule 4.21(a), required to be disclosed under such caption and none of the Citywide Entities is not in receipt of any written claim of default under any Contract contract or commitment set forth on Schedule 4.21(a)required to be disclosed under such caption, except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, and (iiiv) none of the Citywide Entities Antigua has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract contract or commitment set forth on Schedule 4.21(a)under such caption.
c. Prior to the date of this Agreement, SEC has been supplied with a true and correct copy of each written contract or commitment, and (iii) a written description of each oral contract or commitment, referred to under the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or caption "Contracts" in the aggregateDisclosure Letter, have a Material Adverse Effect on the Citywide Entities together with all amendments, waivers or materially adversely affect the consummation of the transactions contemplated herebyother changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(aExcept as set forth on Section 3.09(a) lists of the Disclosure Schedules, the Company is not party to any of the following Contracts to which any Citywide Entity is a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):in effect:
(i) contract or agreement requiring annual aggregate consideration in excess of $100,000 or requiring performance by any employmentparty more than one year from the date hereof, agency, collective bargaining Contract or consulting or independent contractor Contractexcept for purchase orders in the ordinary course of business;
(ii) contract or agreement that relates to the sale of any written or oral Contract relating to any severance pay for any Personof the Assets in excess of $100,000 in the aggregate, other than in the ordinary course of business;
(iii) any written contract or oral Contract creating, modifying, memorializing agreement not covered by item (ii) that relates to the acquisition or otherwise related to any obligation disposition of any Citywide Entity upon a change of control;
business, stock, assets or any real property (iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets)whether by merger, except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts with the same party for the purchase or consolidation, sale of products stock, sale of assets or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or (Botherwise) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(iv) collective bargaining agreement;
(v) bonus, pension, profit sharing, retirement or other form of deferred compensation plan (other than as described in Section 3.12 or set forth on Section 3.12 of the Disclosure Schedules);
(vi) equity purchase, option or equity-based plan;
(vii) contract for the employment of any officer, individual employee or other natural person on a full-time or consulting basis providing for fixed compensation in excess of $100,000 per annum;
(viii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of its Assets;
(ix) guaranty of any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangementobligation for borrowed money;
(x) lease or agreement under which it is lessee of, or holds or operates any Contract with a Governmental Entitypersonal or real property owned by any other party, for which the annual rental exceeds $100,000;
(xi) contract containing a grant by the Company to a Person of any Contract pursuant right relating to which any of or under the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Company’s Intellectual Property in each case that is reasonably necessary or any grant to operate the businesses Company of such Citywide Entity in any right relating to or under the Ordinary Course Intellectual Property of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (any Person other than (A) non-exclusive licenses granted pursuant to commercially available softwarecustomer contracts entered into in the ordinary course of business and (B) contracts requiring an annual payment of less than $50,000 for commercial for “off-the-shelf” software or services (“COTS”);
(xii) any Contract relating distribution, sales representative, marketing or similar agreement that requires the Company to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks)make commission payments under such agreement;
(xiii) contract or agreement that restricts the ability of the Company to engage in any Contract line of business, compete with any Person, solicit any customers, suppliers, employees or contractors of any other Person, or sell or purchase any product or that prohibits the costs of which are Transaction Expenses; andCompany from competing in any product or geographical region;
(xiv) management service, consulting, financial advisory or any other similar type of Contract material to the businesses not terminable without penalty on 30 days’ notice or less;
(xv) contract or agreement that contains a confidentiality, secrecy or non-disclosure obligation of the Citywide Entities, taken as a whole, which Company that is not entered into otherwise listed on Section 3.09(a) of the Disclosure Schedules;
(xvi) contract involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute;
(xvii) contract (other than the Company Permits) with any Governmental Authority;
(xviii) contract relating to capital expenditures or other purchases of materials, supplies, equipment or other assets or properties or services (other than purchase orders for inventory or supplies in the Ordinary Course ordinary course of Businessbusiness) that cannot be cancelled without a payment, other than with respect to capital expenditures reflected in the Company’s capital expenditure budget for the fiscal year ending December 31, 2021;
(xix) contract that requires the Company to purchase its total requirements from a Person (or require the Company to supply the total requirements to a Person), or that contain any take-or-pay provisions;
(xx) agreement that provides any customer or distributor with “most favored nation” provisions; or
(xxi) agreement where the Company is the beneficiary of an exclusive dealing or any similar exclusivity provision requiring annual payments in excess of $100,000.
(b) Except as disclosed The Company has made available to Purchaser true and complete copies of all written contracts and summaries of the material terms of all oral contracts which are set forth on Schedule 4.21(bSection 3.09(a) of the Disclosure Schedules (the “Material Contracts”), other than purchase orders in the ordinary course of business requiring purchases in excess of $100,000 or requiring performance by any party more than one year from the date hereof.
(ic) The Company and, to the Company’s Knowledge, each of the Citywide Entities other party thereto, has performed in all material respects all obligations required to be performed by it prior to the date hereof and is not in connection with the Contracts material breach of, or commitments material default under, any Material Contract. Except as set forth on Schedule 4.21(a)Section 3.09(c) of the Disclosure Schedules, no Material Contract has been terminated or been repudiated. All Material Contracts are valid and in full force and effect, constitute legal, valid and binding obligations of the Company and, to the Company’s Knowledge, each other party thereto, and none are enforceable 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 Citywide Entities availability of specific performance and other equitable remedies. The Company is not in receipt of any written claim of default under or breach under, any Material Contract. As to each Material Contract, to the Company’s Knowledge, no event, occurrence, condition or event has occurred, is pending or, to the Company’s Knowledge, threatened that, with the lapse of time or the giving of notice or both, would constitute a material breach or material default by the Company or, to the Company’s Knowledge, any other Person thereunder. The term Material Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or shall also include purchase orders in the aggregate, have a Material Adverse Effect on the Citywide Entities ordinary course of business requiring purchases in excess of $100,000 or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach requiring performance by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in more than one year from the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebydate hereof.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Universal Corp /Va/)
Contracts and Commitments. Schedule 4.10 contains an accurate and ------------------------- complete list of all Contracts to which the Company is a party. Each Contract set forth on Schedule 4.10 is, to the best knowledge of the Company, in full force and effect; there is no existing default under any of such Contracts on the part of the Company or, to the best of Sellers' knowledge, any other party thereto. Except as set forth on Schedule 4.10:
(a) Schedule 4.21(aThe Company is not a party to or bound by any loan, credit or similar agreement or any indenture, trust agreement or other instrument relating to any issue of bonds, debentures, notes or other evidences of indebtedness or creating any Encumbrance on any of the Company's assets or properties;
(b) lists There are no bonus, pension, profit sharing, retirement, stock option, stock purchase, deferred compensation, hospitalization or insurance plans, or vacation or severance pay plans, or any other plans or arrangements providing benefits to officers, agents or employees of the following Contracts Company;
(c) The Company does not have nor is the Company currently negotiating any collective bargaining agreement with any labor union or association or any employment contract or other binding agreement relating to the employment of any of its employees;
(d) The Company is not a party to any joint venture agreement or other agreement involving the sharing of profits relating to the Business and/or the Company' assets or properties;
(e) The Company is not a party to any (i) contracts or commitments for capital expenditures outside the ordinary course of business or involving obligations on the part of the Company in amounts inconsistent with those incurred by the Company in the ordinary course of business in accordance with the Company's prior operation of the Business, (ii) Lease under which personal property is leased to or from the Company and which is not cancelable by the Company without penalty upon notice of thirty days or less or pursuant to which rentals payable by or to the Company, either individually or in the aggregate, substantially exceed amounts previously incurred by the Company in the ordinary course of business, (iii) continuing contract for the future purchase of Inventory or other materials, supplies, machinery or equipment in excess of the requirements of the Business conducted in the ordinary course, (iv) other contract or agreement which involves an obligation on the part of the Company, either individually or in the aggregate, in excess of amounts previously incurred by the Company in the ordinary course of business, (v) contract not made in the ordinary course of business, or (vi) any Citywide Entity contract that is terminable upon or requires a consent to a change of control of the Company;
(f) There are no agreements, notes, mortgages, leases, franchises, permits, orders, judgments or decrees to which the Company is a party or subject or by which it the Company is bound (such Contracts required to bound, which contain any provision which would be listed on Schedule 4.21(a)violated or contravened by, or which would cause acceleration of any obligation of the “Material Contracts”):
(i) Company as a result of or which would cause or permit the forfeiture of any employment, agency, collective bargaining Contract right or consulting benefit of the Company by reason of the execution or independent contractor Contractperformance of this Agreement;
(iig) any written or oral Contract relating The Company is not party to any severance pay for Contract limiting the freedom of a the Company to engage in any line of business or to compete with any Person;
(iiih) any written or oral Contract creating, modifying, memorializing or otherwise related The Company is not a party to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (which involves $5,000 or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products more and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice cancelable without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenseswithin thirty days; and
(xivi) any other Contract material There are no persons holding powers of attorney from, or otherwise authorized to act on behalf of the Company with respect to the businesses of Business or the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Business.
(b) assets except for its respective officers and other management personnel regularly performing their business functions. Except as disclosed specifically identified on Schedule 4.21(b)4.10, (i) each of Sellers have no knowledge that any Contract, Lease, or other obligation to which the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), and none of the Citywide Entities Company is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would nota party, individually or in the aggregate, have : (i) will result in a Material Adverse Effect on material loss to the Citywide Entities or materially adversely affect Company after the consummation of the transactions contemplated hereby, Closing Date; (ii) none cannot readily be performed or fulfilled on time without undue or unusual expenditure of money or effort by the Company after the Closing Date, or (iii) is not in full force and effect and there exists a default or event of default or event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any other event or condition, would become a default or event of default thereunder. A true copy of each written Contract and Lease as well as all other documents evidencing any commitment of the Citywide Entities Company required to be set forth on any Schedule hereto has any present expectation been or intention will be delivered to Buyer by Sellers no later than fifteen (15) days after execution of not fully performing any material obligation pursuant to any Contract or commitment this Agreement. Also set forth on Schedule 4.21(a)4.10 is a list of all proposals, and (iii) to except proposals made by the Knowledge Company's sales people in the ordinary course of Citywidebusiness, there has been no cancellation, breach or anticipated breach submitted by any other party the Company to any Contract or commitment set forth third party that, if accepted by such third party, would require disclosure on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby4.10.
Appears in 1 contract
Samples: Stock Purchase Agreement (Teletouch Communications Inc)
Contracts and Commitments. (a) Section 2.12(a) of the Company Disclosure Schedule 4.21(acontains a list (indicating the clause of this Section 2.12 pursuant to which disclosure is made) lists of all of the following Contracts written or oral contracts or agreements (including any and all amendments thereto), other than agreements listed in Sections 2.8(a), 2.9(a), 2.14(b), 2.15 or 2.16(c) of the Company Disclosure Schedule and other than purchase orders made in the ordinary course of business, to which any Citywide Entity which, as of the date hereof, Company is a party or subject or by which it Company is bound (such Contracts required to be listed on Schedule 4.21(a)collectively, the “"Material Contracts”):
"): (i) any employmentagreements with any present shareholder, agencyemployee, collective bargaining Contract officer, director or consulting consultant (or independent contractor Contract;
former shareholder, employee, officer, director or consultant to the extent there remain at the date hereof obligations to be performed by Company); (ii) any written agreements or oral Contract indentures relating to any severance pay for any Person;
the borrowing of money; (iii) any written indemnification agreements or oral Contract creating, modifying, memorializing or otherwise related to guaranties of any obligation of any Citywide Entity upon a change of control;
for borrowed money or otherwise; (iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate contracts which prohibit Company from freely engaging in business anywhere in the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
world; (v) any joint venture or profit-sharing agreement (Aother than with employees); (vi) contract or group of related contracts with the same party for the purchase or sale of products or servicescontracts, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts not entered into in the aggregateordinary course of business on an arm's-length basis, or (B) other contract or group of related contracts with the same party that are continuing over a period of more than six months from the date hereof and are not terminable by Company on 60 days or dates thereofless notice without penalties or premiums (including contracts to provide advertising allowances or promotional services); (vii) any agreements for the purchase by Company of any materials, which is equipment, services, or supplies not entered into in the Ordinary Course ordinary course of Business and is either business on an arm's-length basis, that may not terminable be terminated by it on 30 days’ or less notice Company without penalty or involves more upon less than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
three months' notice; (viii) any Contract agreements or commitments for capital expenditures in excess the acquisition, construction or sale of $50,000;
fixed assets owned or to be owned by Company that continue for a period of more than six months from the date hereof and may not be terminated without penalty by Company prior to the expiration of such six-month period; (ix) any partnership, joint venture, limited liability company, shareholder, investor rights agreements that provide for the distribution of goods or other similar Contract or arrangement;
services that continue for a period of more than six months from the date hereof and may not be terminated without penalty by Company prior to the expiration of such six-month period; (x) any Contract with a Governmental Entity;
agreements or arrangements for the sale of any of the assets, properties, services or rights of Company other than in the ordinary course of business on an arms length basis or for the grant of any preferential rights to purchase any of its assets, properties or rights or that require the consent of any third party to the transfer and assignment of any of its assets, properties or rights; (xi) any Contract pursuant agreements with any third party to which develop any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure intellectual property concepts involving payments by Company in excess of Cdn. $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
10,000; (xii) any Contract relating to Indebtedness of more than $500,000 of commitments for charitable contributions or any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of other agreements which (A) are Transaction Expenses; and
(xiv) any other Contract material to the businesses Business of the Citywide Entities, Company taken as a wholewhole or (B), except as disclosed in Section 2.12(b) of the Company Disclosure Schedule, pursuant to the terms of which is not entered into in the Ordinary Course consent of Businessa third party would be required for the consummation of the transactions contemplated hereby or by the Transaction Agreements.
(b) Except as disclosed on Schedule 4.21(b), (iin Section 2.8(a) each or Section 2.12(b) of the Citywide Entities has performed all obligations required Company Disclosure Schedule, Company is not a party to any contract, agreement or understanding which contains a "change in control" or similar provision or any other provision which could be performed triggered by it prior to the date hereof in connection with the Contracts execution and delivery of, or commitments set forth on Schedule 4.21(a), and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyby, (ii) none of this Agreement or the Citywide Entities has any present expectation Transaction Agreements; and the execution and delivery of, or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyby, this Agreement or the Transaction Agreements will not (either alone or upon the occurrence of any additional acts or events) by reason of any such provision result in any payment (whether of severance pay or otherwise) becoming due from Company to any person.
(c) On or before the Delivery Date, complete copies of all Material Contracts will be provided to Merge or its solicitors. All Material Contracts have been duly executed and are valid and binding and in full force and effect and, except as set forth in Section 2.12(c) of the Company Disclosure Schedule, none of Company, or to the actual knowledge of Company, any other party to any Material Contract has breached any provision of, or is in default under, the terms of any Material Contract and no event has occurred which with the lapse of time or the giving of notice or both would constitute a breach or default by any party thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in Section 3.15 or in the "Contracts Schedule" attached hereto as Schedule 4.21(a3.9(a) lists or in the "Customer Contracts Schedule" attached hereto as Schedule 3.9(d), Seller is not a party to any of the following Contracts to which any Citywide Entity is a party contracts related to, or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)binding upon, the “Material Contracts”):Business:
(i) any employmentbonus, agencypension, collective bargaining Contract profit sharing, retirement or consulting deferred compensation plan or independent contractor Contractstock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal, or severance agreements or arrangements or contracts requiring Seller to pay post-retirement medical benefits;
(ii) contract for the employment of any written officer, individual employee or oral Contract relating to any severance pay for any Personother person on a full-time, part-time or consulting basis;
(iii) any written or oral Contract creatingmortgage, modifying, memorializing pledge or otherwise related to place a lien on any obligation of any Citywide Entity upon a change of controlthe Purchased Assets;
(iv) guarantee of any Contract to repurchase assets previously sold (obligation for borrowed money or to indemnify or otherwise compensate otherwise, other than endorsements made for collection in the purchaser in respect ordinary course of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datebusiness;
(v) agreement or commitment with respect to the lending or investing of funds to or in other persons or entities;
(vi) license or royalty agreement related to the Business;
(vii) lease or agreement related to the Business under which it is lessee of or holds or operates any personal property owned by any other party;
(Aviii) lease or agreement related to the Business 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;
(ix) contract or group of related contracts related to the Business with the same party for the purchase or sale of products or services, under which services other than the undelivered balance of such products and services has a purchase price Customer Contracts (as defined in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or Section 3.9(d) hereof);
(Bx) other contract or group of related contracts to the Business with the same any party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 thirty (30) days’ ' or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractspenalties;
(vixi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant and to which any of the Citywide Entities grants Business or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)Purchased Assets are subject;
(xii) any Contract contract relating to Indebtedness the distribution of more than $500,000 of any of its products as it relates to the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide BanksBusiness; and (B) evidencing deposit Liabilities of Citywide Banks);or
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material agreements related to the businesses of the Citywide Entities, taken as a whole, which is Business whether or not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as specifically disclosed on in the Contracts Schedule 4.21(b)or the Customer Contracts Schedule, (i) each no contract or commitment related to the Business has been breached in any material respect or canceled by the other party, (ii) since December 31, 2000, no material supplier of the Citywide Entities Business has notified Seller that it shall stop or decrease in any material respect the rate of business done with Seller, (iii) Seller has in all respects performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), of this Agreement and none of the Citywide Entities is not in receipt of any claim of default under any Contract material lease, contract, commitment or commitment set forth on Schedule 4.21(a)other agreement related to the Business to which it is a party; (iv) no event has occurred which with the passage of time or the giving of notice or both would result in a breach or default under any lease, except for contract, instrument or other agreement related to the Business to which Seller is a party and which is related to the Business; and (v) Seller is not a party to any failures contract which is materially adverse to performthe Business's operations, breaches financial condition or defaults operating results.
(c) Purchasers have been supplied with a true and correct copy of all written contracts which would not, individually or in the aggregate, have a Material Adverse Effect are referred to on the Citywide Entities Contract Schedule and Customer Contracts Schedule, together with all amendments, waivers or materially adversely affect other changes thereto.
(d) Seller has no knowledge of any (i) pending or threatened termination, cancellation, limitation, modification or change outside the consummation ordinary course in any of Seller's business relationship with any customer or group of customers related to the transactions contemplated hereby, Business or (ii) none changes or pending changes in any law, rule, regulation, technology, or business relationship or other circumstance that could result in the loss of any customers related to the Business after the date hereof in each case that would have a Seller Material Adverse Effect. Except as indicated on the Customer Contract Schedule, (A) each contract, agreement or lease with customers of Seller relating to the Business ("Customer Contracts") is valid, enforceable and in full force and effect in accordance with the terms thereof, (B) there is no existing default or event or condition which, with notice or lapse of time or both, would constitute an event of default under any Customer Contract, (C) no Customer Contract has been amended, modified, supplemented or otherwise altered orally, in writing or by course of conduct, (D) no Customer Contract requires the consent of the Citywide Entities has any present expectation Customer or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any affect a valid assignment thereof to Purchasers without causing a default or giving rise to a right of termination thereunder and (E) each Customer Contract or commitment set forth on Schedule 4.21(a)complies in all material respects with all applicable laws, except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyrules and regulations.
Appears in 1 contract
Samples: Asset Purchase Agreement (Clark/Bardes Holdings Inc)
Contracts and Commitments. (a) Schedule 4.21(aExcept as specifically contemplated by this Agreement and except as set forth and fully described on SCHEDULE 5.13(A) lists attached hereto, the following Contracts to which any Citywide Entity Target is not a party to or subject bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):any:
(i) any employment, agency, collective bargaining Contract agreement or consulting contract with any labor union or independent contractor Contractany 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 written contract for the employment of any officer, individual employee or oral Contract relating to other person on a full-time or consulting basis or any severance pay for any Personagreements;
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon a change of controlits assets;
(iv) contract under which the Target has advanced or loaned any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate other Person amounts in the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateaggregate exceeding $5,000;
(v) any (A) contract or group of related contracts with the same party for the purchase or sale of products or services, agreement under which the undelivered balance Target has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(vi) agreements with respect to the lending or investing of such products and services has a purchase price funds;
(vii) any license or royalty agreements;
(viii) guaranty of any obligation, other than endorsements made for collection;
(ix) 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 $50,000 for 5,000 annually;
(x) lease or agreement under which it is lessor of or permits any individual contract third party to hold or $100,000 for operate any group of related contracts in the aggregateproperty, real or personal, owned or controlled by it;
(Bxi) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ days or less notice without penalty penalties or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts10,000;
(vixii) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks)world;
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract agreement material to the businesses of the Citywide Entities, taken as a whole, which is it whether or not entered into in the Ordinary Course of Business; or
(xiv) any oral agreements and/or contracts.
(b) Except as disclosed on Schedule 4.21(b), SCHEDULE 5.13(B):
(i) each no contract or commitment has been breached or canceled by the other party and neither the Target nor any Shareholder has Knowledge of any anticipated breach by any other party to any contract other than as set forth on the Citywide Entities SCHEDULE 5.13(B);
(ii) other than as set forth on SCHEDULE 5.13(B), no customer or supplier has indicated in writing or orally to the Target or any Shareholder that it shall stop or decrease the rate of business done with the Target or that it desires to renegotiate its contract or current arrangement with the Target;
(iii) the Target has performed all the obligations required to be performed by it prior to the date hereof in connection with all of the Contracts contracts or commitments set forth on Schedule 4.21(a)that the Target has entered into is not in default under or in breach of any contract or commitment, and none no event has occurred which with the passage of time or the Citywide Entities is giving of notice or both would result in receipt of any claim of a default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in breach thereunder;
(iv) the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities Target has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment contract that the Target entered into; and
(v) other than as set forth on Schedule 4.21(aSCHEDULE 5.13(B), each agreement is legal, valid, binding, enforceable and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect full force and effect and will continue as such following the consummation of the transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Miracom Corp)
Contracts and Commitments. (a) Section 3.13 of the Disclosure Schedule 4.21(a) lists sets forth a list of all of the following Contracts (other than Plans, except to the extent contemplated by Sections 3.13(a) or (b)) to which any Citywide Entity the Company is a party or subject or by which it is the Company or its respective assets are bound (such Contracts required to be listed on Schedule 4.21(a)each, the a “Material ContractsContract”):
(a) employment agreements or severance agreements or employee termination arrangements, in any such case, with respect to the senior executive officers of the Company and employees earning a base salary in excess of $200,000 per year;
(b) any change of control agreements with employees of the Company;
(c) Contracts containing any covenant limiting the ability of the Company to engage in any line of business or to compete with any business or Person;
(d) Contracts with Seller or any owner, partner, member, officer, director or employee of Seller (other than any employment, severance and change of control agreements covered by clause (a) or (b) above);
(e) Contracts under which the Company 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 $250,000;
(f) leases pursuant to which material real property is leased to or from the Company;
(g) guaranties, suretyships or other contingent agreements of the Company involving underlying obligations of not less than $250,000;
(h) any Contract relating to capital expenditures with respect to the Company and involving future payments which exceed $250,000 in any 12-month period;
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(ii) any written or oral Contract relating to the acquisition or disposition of material assets (other than in the ordinary course of business consistent with past practice) or any severance pay for capital stock of any Person;business enterprise; and
(iiij) any written or oral Contract creating, modifying, memorializing or otherwise related Contracts (other than those covered by clauses (a) through (i) above) pursuant to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services Company is entitled to receive or has a purchase price an obligation to pay in excess of $50,000 for 1,000,000 over any individual contract twelve- month period. The Company has made available to Buyer true, complete, and correct copies of all Material Contracts. Each of the Material Contracts is valid and binding upon the Company and, to the Company’s Knowledge, is in full force and effect in all material respects and enforceable by the Company in accordance with its respective terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or $100,000 for any group affecting creditors’ rights and to general equity principles. As of related contracts in the aggregate, or (B) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annuallyhereof, with respect to all Material Contracts, neither the Company nor, to the Company’s Knowledge, any material Intellectual Property other party to any such contract is in each case that is reasonably necessary breach thereof or default thereunder and, to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistentCompany’s Knowledge, in the case of Citywide Banksthere does not exist under any event which, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness the giving of more than $500,000 notice or the lapse of any of the Citywide Entities (other thantime, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as would constitute such a whole, which is not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts breach or commitments set forth on Schedule 4.21(a), and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a)default, except for any failures such breaches, defaults and events as to perform, breaches which requisite waivers or defaults consents have been obtained or which would not, individually or in the aggregate, have result in a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyEffect.
Appears in 1 contract
Contracts and Commitments. (a) 5.14.1 Schedule 4.21(a) 5.14.1 lists all of the following Contracts written or oral contracts, agreements and plans to which any Citywide Entity the Company is a party or subject or by and which it is bound (such Contracts required relate solely to be listed on Schedule 4.21(a), the “Material Contracts”):PBM Business:
(i) Any employment agreement, offer letter or other agreement for the employment of any employment, agency, collective bargaining Contract officer or consulting any other employment agreement for the employment of any other individual employee which requires the payment of more than $50,000 annually in total cash compensation which is not terminable on sixty (60) or independent contractor Contractfewer days’ notice by the Company without liability for any material penalty or severance payment;
(ii) Any loan agreement or indenture with any written or oral Contract third party relating to any severance pay Indebtedness for any Personborrowed money under which the Company has borrowed money;
(iii) Any lease agreement with any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation third party under which the Company is lessee of any Citywide Entity upon a change of controlpersonal property owned by any third party for which the annual rental payments paid by the Company exceeds $100,000 and which is not terminable on sixty (60) or fewer days’ notice by the Company and which is utilized solely by the PBM Business;
(iv) any Contract Contracts with network pharmacies pursuant to repurchase assets previously sold which the PBM Business processed not less than ninety-two (or to indemnify or otherwise compensate 92%) of its total claims during the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datelast twelve (12) months;
(v) Contracts with marketing agents pursuant to which Company paid fees or commissions to such marketing agents comprising not less than ninety (90%) of the aggregate fees and commissions paid by Company to marketing agents in the last twelve (12) months;
(vi) All agreements pursuant to which Company provides funded pharmacy benefit management services;
(vii) Any partnership or joint venture contract;
(viii) Any contract with any third party containing covenants prohibiting the Companies or any Companies’ Subsidiaries in any material respect from competing in any line of business against any such third party (Aother than through confidentiality provisions or agreements and non-solicitation of employee provisions or agreements);
(ix) contract or group of related contracts with the same party Any Contract that provides for the purchase sale, assignment, license, or sale other disposition of any asset outside the ordinary course of business;
(x) Any Contract that provides for the licensing or distribution of products or servicesservices by, under which or establish an agency, dealer, reseller, sales representative or other similar relationship with, any other party;
(xi) Any Contract that provides for a loan, guaranty, surety, indemnity or other financial support to any Person, including any director, officer, employee or consultant
(xii) Any Contract that provides for payments by Company in excess of $25,000 or provide for payments to the undelivered balance of such products and services has a purchase price Company in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banksper year; and (B) evidencing deposit Liabilities of Citywide Banks);and
(xiii) any Contract Any Contracts that are otherwise not in the costs ordinary course of which are Transaction Expenses; andbusiness consistent with past practice.
(xiv) any other Contract material 5.14.2 With respect to the businesses each of the Citywide Entitiescontracts and agreements set forth on Schedule 5.14.11 (each a “Material Contract”), taken as the Company has made available to Buyer a whole, which is not entered into true and correct copy of the contract in the Ordinary Course of Business.
(b) its possession with respect to such Material Contract. Except as disclosed set forth on Schedule 4.21(b)5.14.2 or as would not have a Material Adverse Effect, (i) each as of the Citywide Entities has performed all obligations required to be performed by it prior date hereof, neither the Company nor, to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a)Company’s knowledge, and none of the Citywide Entities any other party thereto, is in receipt material breach of any claim of such Material Contract or default under any Contract or commitment set forth on Schedule 4.21(a)such Material Contract, except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, and (ii) none as of the Citywide Entities has any present expectation or intention date hereof, to the Company’s knowledge, each such Material Contract is valid and in full force in effect in all material respects and constitutes a legal, valid and binding obligation of not fully performing any material obligation pursuant the Company and, to any Contract or commitment set forth on Schedule 4.21(a)the Company’s knowledge, the other parties thereto, and (iii) to is enforceable against the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually Company or in the aggregateaccordance with its terms, have subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a Material Adverse Effect on the Citywide Entities proceeding at Law or materially adversely affect the consummation of the transactions contemplated herebyin equity).
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(a) lists 4.17 hereto sets forth each contract or other commitment of Wavetech which requires an aggregate payment by Wavetech after the following Contracts date hereof of more than $25,000, and any other contract or commitment that in the opinion of the Wavetech management materially affects the business of Wavetech. Except for the contracts and commitments described in this Reorganization Agreement or as set forth in Schedule 4.17 hereto, Wavetech is not party to which any Citywide Entity is a party or subject to:
1. Any contracts or by commitments which it is bound (such Contracts required are material to be listed on Schedule 4.21(a)its business, operations or financial condition other than loans or agreements with respect thereto entered into in the “Material Contracts”):
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contractordinary course of business;
(ii) 2. Any employment contract or arrangement, whether oral or written, with any written officer, consultant, director or employee which is not terminable on 30 days' notice without penalty or liability to make any payment thereunder for more than 30 days after such termination;
3. Any plan or contract or other arrangement, oral Contract relating to any severance pay or written, providing for insurance for any Personofficer or employee or members of their families;
(iii) any written 4. Any plan or contract or other arrangement, oral Contract creatingor written, modifyingproviding for bonuses, memorializing pensions, options, deferred compensation, retirement payments, profit-sharing or otherwise related to any obligation of any Citywide Entity upon a change of controlother benefits for employees;
(iv) 5. Any contract or agreement with any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datelabor union;
(v) any (A) 6. Any contract or group of related contracts agreement with the same party customers for the purchase or sale of products or the furnishing of services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for or any individual contract sales agency, broker, distribution or $100,000 for any group of related similar contract, except contracts made in the aggregate, or (B) other contract or group ordinary course of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractsbusiness;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities 7. Any contract restricting Wavetech from freely engaging in carrying on its business anywhere in the world United States;
8. Any instrument or prohibiting arrangement evidencing or related to indebtedness for money borrowed or to be borrowed, whether directly or indirectly, by way of purchase money obligation, guaranty, conditional sale, lease-purchase, or otherwise;
9. Any joint venture contract or arrangement or any other agreement involving a sharing of profits;
10. Any license agreement in which Wavetech is the solicitation licensor or licensee;
11. Any material contract or agreement, not of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which type covered by any of the Citywide Entities grants other items of this Section 4.17, which by its terms is either (i) not to be performed prior to 30 days from the date hereof, or makes available(ii) does not terminate, or is granted not terminable without penalty to Wavetech, or receives, any license successors or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities has performed all obligations required to be performed by it assigns prior to 30 days from the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyhereof.
Appears in 1 contract
Samples: Reorganization Agreement (Wavetech International Inc)
Contracts and Commitments. (a) Schedule 4.21(aExcept as set forth on Section 4.09(a) lists of the following Contracts to which any Citywide Entity is a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)Company Disclosure Schedule, the “Material Contracts”):Company is not party to any:
(i) any employmentequity purchase, agency, collective bargaining Contract equity option or consulting or independent contractor Contractsimilar plan;
(ii) contract for the engagement of any written person on a full-time or oral Contract relating to any severance pay for any Personconsulting basis;
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a lien on any obligation material portion of any Citywide Entity upon a change of controlthe Company’s assets;
(iv) guaranty of any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except obligation for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateborrowed money;
(v) 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;
(Avi) 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;
(vii) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase selling price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts (other than purchase orders entered into in the aggregateordinary course of business);
(viii) any contract relating to non-competition restrictions or that restricts the Company from selling any product, providing any service, engaging in any line of business, competing with any third party in any geographic area, or hiring, soliciting or retaining any third party (Bwhether the Company is subject to or the beneficiary of such obligation);
(ix) any pension, profit sharing, stock option, stock purchase, stock appreciation, deferred Compensation, severance or other plan, Contract or arrangement, in each case, of the Company for the benefit of current or former directors, managers, officers, employees, independent contractors or consultants of the Company;
(x) any contract that provides for the assumption of any Tax, environmental or other Liability of any Person;
(xi) any contract that requires the payment of a royalty;
(xii) contract or group of related contracts with the same party continuing over for the sale of products or services under which the undelivered balance of such products or services has a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure sales price in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) purchase orders entered into in the Ordinary Course ordinary course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banksbusiness); and (B) evidencing deposit Liabilities of Citywide Banks);or
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not contract entered into in connection with the Ordinary Course of BusinessCompany’s bankruptcy proceeding for which the Company has continuing payment obligations after the Closing to a Person with respect to obligations arising prior to the Company’s bankruptcy proceeding, other than the obligations with respect to the Outstanding Litigation.
(b) Except as disclosed Buyer has been given access to a true and correct copy of all written contracts which are referred to on Schedule 4.21(b)Section 4.09(a) of the Company Disclosure Schedule, together with all material amendments, waivers or other changes thereto.
(c) The Company is (i) not in material default under any contract listed on, or that is required to be listed on, Section 4.09(a) of the Company Disclosure Schedule (each, a “Material Contract” and, collectively, the “Material Contracts”) and (ii) to the Company’s knowledge, the other party to each of the Citywide Entities has performed all obligations required to be performed by it prior Material Contracts is not in material default thereunder. Each Material Contract is valid and binding on the Company and, to the date hereof in connection with Company’s knowledge, the Contracts or commitments set forth on Schedule 4.21(a), counterparty(ies) thereto and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), full force and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyeffect.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Smart Sand, Inc.)
Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth in Schedule 4.21(a) lists 4.13 attached hereto (the following Contracts "CONTRACTS SCHEDULE"), neither the Company nor Seller with respect to which any Citywide Entity the Division is a party to or subject bound by, whether written or oral, any: (i) collective bargaining agreement or contract with any law or 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) contract for the employment of any officer, individual employee or other person on a full time or consulting basis or any severance agreements; (iii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of its assets; (iv) agreements with respect to the lending or investing of funds; (v) license or royalty agreements (other than the licenses granted by the Company pursuant to its customer subscription agreements); (vi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection; (vii) lease or agreement under which it is bound lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $25,000 annually; (such Contracts required viii) lease or agreement under which it is lessor of or permits any third party to be listed on Schedule 4.21(a)hold or operate any property, the “Material Contracts”):
real or personal, owned or controlled by it; (i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(ii) any written or oral Contract relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (Aix) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or services, under other personal property or for the furnishing or receipt of services which the undelivered balance either calls for performance over a period of more than one year (except if such products and services has contracts do not involve a purchase price sum in excess of $50,000 for any individual contract or 5,000 annually)or involves a sum in excess of $100,000 for any group of related contracts in the aggregate, or 25,000; (Bx) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ days or less notice without penalty penalties or involves involving more than $50,000 for any individual 15,000; (xi) contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities which prohibits it from freely engaging in business anywhere in the world world; (xii) contract or prohibiting the solicitation agreement with any officer, director, shareholder or other insider of the employees Company or contractors Seller or any of any other entity;
its affiliates (viiexcluding customer contracts); (xiii) any stock purchasecontract relating to the distribution, stock optionmarketing or sales of its products; (xiv) warranty agreement with respect to products sold; (xv) franchise agreements; (xvi) agreements, restricted stock contracts or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures understandings pursuant to which the Business subcontracts work to third parties which involves a sum in excess of $50,000;
25,000; or (ixxvii) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is it whether or not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as specifically contemplated by this Agreement or disclosed on Schedule 4.21(b)in the Contracts Schedule, (i) each no contract or commitment required to be disclosed on the Contracts Schedule has been breached or cancelled by the other party since April 1, 1993, (ii) since April 1, 1993, no customer or supplier has indicated in writing or orally to an officer or director of the Citywide Entities Company or Seller that it will stop or materially decrease the rate of business done with the Business, (iii) the Business has performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth required to be disclosed on the Contracts Schedule 4.21(a), and none of the Citywide Entities is not in receipt of any claim of default under any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect be disclosed on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyContracts Schedule, (iiiv) none of the Citywide Entities Business has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment contract set forth on Schedule 4.21(a)the Contracts Schedule, and (iiiv) to no director, officer or division directors of the Knowledge Company or officer or director of Citywide, there Seller has been no cancellation, knowledge of any breach or anticipated breach by any other party to any Contract or commitment contract set forth on Schedule 4.21(a)the Contracts Schedule, except for any cancellationand (vi) no unfilled customer order or commitment obligating the Business to process, breach manufacture or anticipated breach deliver products or perform services will result in a loss to the Business upon completion of performance.
(c) Seller has provided Buyer with a true and correct copy of all written contracts which would not, individually or in the aggregate, have a Material Adverse Effect are referred to on the Citywide Entities Contracts Schedule, together with all amendments, waivers or materially adversely affect the consummation other changes thereto. The Contracts Schedule contains an accurate and complete description of the transactions contemplated herebyall material terms of all oral contracts referred to therein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Onesource Information Services Inc)
Contracts and Commitments. (a1) Except as set forth in Section 3.18 or in the "Contracts Schedule" attached hereto as Schedule 4.21(a3.12(a) lists or in the following "Customer Contracts Schedule" attached hereto as Schedule 3.12(d), and except for any contract entered into in the ordinary course of the Business as to which any Citywide Entity Seller's remaining obligation is less than $10,000 as of the date hereof (provided that all of such contracts do not exceed $50,000 in the aggregate), Seller is not a party to or subject bound by any:
(1) bonus, pension, profit sharing, retirement or by deferred compensation plan or stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal, or severance agreements or arrangements or contracts requiring Seller to pay post-retirement medical benefits;
(2) contract with any labor union or contract for the employment of any officer, individual employee or other person on a full-time, part-time or consulting basis;
(3) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the Purchased Assets;
(4) guarantee of any obligation for borrowed money or otherwise, other than endorsements made for collection in the ordinary course of business;
(5) agreement or commitment with respect to the lending or investing of funds to or in other persons or entities;
(6) license or royalty agreement;
(7) lease or agreement under which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):
(i) lessee of or holds or operates any employment, agency, collective bargaining Contract or consulting or independent contractor Contractpersonal property owned by any other party;
(ii) 8) lease or agreement under which it is lessor of or permits any written third party to hold or oral Contract relating to operate any severance pay for any Personproperty, real or personal, owned or controlled by it;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A9) contract or group of related contracts with the same party for the purchase or sale of products or services, under which services other than the undelivered balance of such products and services has a purchase price Customer Contracts (as defined in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or Section 3.12(d) hereof);
(B10) other contract or group of related contracts with the same any party continuing over a period of more than six months from the date or dates thereof, not terminable by it on thirty (30) days' or less notice without penalties;
(11) contract which is prohibits it from freely engaging in business or in any way restrains its business activities anywhere in the world;
(12) contract relating to the distribution of its products;
(13) contract with any officer, director, partner, shareholder or other insider; or
(14) other agreements whether or not entered into in the Ordinary Course ordinary course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Businessbusiness.
(b2) Except as specifically disclosed on Schedule 4.21(b)in the Contracts Schedule, (i) each to Seller's knowledge, no contract or commitment has been breached in any respect or canceled by the other party, (ii) since the date of the Citywide Entities Latest Balance Sheet, no supplier has notified Seller that it shall stop or decrease in any material respect the rate of business done with Seller, (iii) Seller has in all material respects performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), of this Agreement and none of the Citywide Entities is not in receipt of any claim of default under any material lease, contract, commitment or other agreement to which it is a party; and (iv) 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 lease, contract, instrument or other agreement to which Seller is a party.
(3) Purchaser has been supplied with a true and correct copy of all written contracts which are referred to on the Contract Schedule, together with all amendments, waivers or commitment other changes thereto.
(4) Seller has no knowledge of any (i) pending or threatened termination, cancellation, limitation, modification or change in any of Seller's business relationship with any customer or group of customers related to the Business or (ii) changes or pending changes in any law, rule, regulation, technology, or business relationship or other circumstance that is reasonably likely to result in the loss of any customers related to the Business after the date hereof. Each contract, agreement or lease with customers of Seller relating to the Business ("Customer Contracts") is in one of the forms attached to the "Customer Contract Schedule" attached hereto as Schedule 3.12(d), except for completion of blanks and has not been modified with respect to the limitations on liability or service charge increase provisions, whether in writing, orally, by course of dealings or otherwise, and Seller is not providing or obligated to provide goods or services to others except pursuant to a written contract in such form in each case. Except as indicated on the Customer Contract Schedule, (A) to the Seller's knowledge, each of the Customer Contracts is valid, enforceable and in full force and effect in accordance with the terms thereof, (B) to the Seller's knowledge, there is no existing material default or event or condition which, with notice or lapse of time or both, would constitute an event of material default under any Customer Contract, (C) no Customer Contract has been amended, modified, supplemented or otherwise altered orally, in writing or by course of conduct, (D) except as set forth on Schedule 4.21(a3.12(d), except for any failures to perform, breaches or defaults which would not, individually or in no Customer Contract requires the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation consent of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation Customer or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any affect a valid assignment thereof to Purchaser without causing a default or giving rise to a right of termination thereunder, and (E) each Customer Contract or commitment set forth on Schedule 4.21(a)complies with all applicable laws, except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyrules and regulations.
Appears in 1 contract
Contracts and Commitments. (a) Except as disclosed in Schedule 4.21(a3.13(a) lists of the following Contracts to which any Citywide Entity Company Disclosure Schedules, the Company is not a party or subject bound to any of the following contracts or by which it is bound agreements (such Contracts required to be listed on Schedule 4.21(a)collectively, the “"Material Contracts”"):
(i) any employment, agency, collective bargaining Contract agreement or consulting or independent contractor Contractcontract with any labor union;
(ii) any written bonus, pension, profit sharing, retirement, or oral Contract relating to any severance pay for any Personother form of deferred compensation plan;
(iii) any written hospitalization insurance or oral Contract creatingsimilar plan or practice, modifying, memorializing whether formal or otherwise related to any obligation of any Citywide Entity upon a change of controlinformal;
(iv) contract for the employment of any Contract officer, individual employee, or other person on a full-time or consulting basis or relative to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of severance pay for any such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateperson;
(v) agreement or indenture relating to the borrowing of money in excess of $10,000 or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(Avi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection;
(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 an annual rental in excess of $10,000;
(viii) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual 10,000;
(ix) contract or $100,000 for any 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 the aggregate, or excess of $10,000;
(Bx) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ ' or less notice without penalty or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts10,000;
(vixi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of contract which prohibits the Citywide Entities Company from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)world;
(xii) any Contract contract relating to Indebtedness of more than $500,000 of any the distribution of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks)Company's products;
(xiii) any Contract the costs of which are Transaction Expenses; andfranchise agreement;
(xiv) contract, agreement or understanding with any shareholder who beneficially owns five percent (5%) or more of the Company Common Stock or with any officer, director or employee (other Contract than for employment on customary terms);
(xv) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the proprietary rights as disclosed on Schedule 3.14 of the Company Disclosure Schedules; or
(xvi) other agreement material to the businesses of the Citywide Entities, taken as a whole, which is Company's business or not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as specifically disclosed on Schedule 4.21(b)3.13(b) of the Company Disclosure Schedules, (i) each no contract or commitment required to be disclosed under such caption has been breached or canceled by the other party; (ii) since the date of the Citywide Entities balance sheet included in the Company's Interim Financial Statements, no customer or supplier has indicated that it will stop or decrease the rate of business done with the Company, except for changes in the ordinary course of the Company's businesses; (iii) the Company has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth on Schedule 4.21(a), required to be disclosed under such caption and none of the Citywide Entities is not in receipt of any claim of default under any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in be disclosed under such caption; (iv) the aggregate, Company does not have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract contract or commitment or commitment set forth on Schedule 4.21(a), under such caption; and (iiiv) to the Knowledge Company does not have any knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by any other party to any Contract contract or commitment set forth under such caption.
(c) Prior to the date of this Agreement, Parent has been supplied with a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, disclosed on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation 3.13 of the transactions contemplated herebyCompany Disclosure Schedules, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(a) lists Except as specifically contemplated by this Agreement and except as set forth on the following "Contracts to which Schedule" attached hereto, neither the ------------------ Company nor any Citywide Entity of its Subsidiaries is a party to or subject bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):any:
(i) any employment, agency, collective bargaining Contract agreement or consulting contract with any labor union or independent contractor Contractany 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 written contract for the employment of any officer, individual employee or oral Contract relating to other person on a full-time or consulting basis or any severance pay agreements providing for any Personan annual salary in excess of $50,000;
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien (other than Permitted Encumbrances) on any obligation of any Citywide Entity upon a change of controlits assets;
(iv) any Contract agreements with respect to repurchase assets previously sold (the lending or to indemnify or otherwise compensate the purchaser in respect investing of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datefunds;
(v) royalty agreements;
(vi) guaranty of any obligation, other than endorsements made for collection;
(Avii) contract lease or group of related contracts with the same party for the purchase or sale of products or services, agreement under which the undelivered balance of such products and services has a purchase price it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $50,000 for annually;
(viii) lease or agreement under which it is lessor of or permits any individual contract third party to hold or $100,000 for operate any group property, real or personal, owned or controlled by it (other than leases of related contracts equipment in the aggregate, or Ordinary Course of Business);
(Bix) other 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 and involving more than $50,000 annually;
(x) contract which is prohibits it from freely engaging in business anywhere in the world (other than agreements which prescribe sales territories to the Company); or
(xi) other agreement material to it not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more other than $50,000 for any individual contract or $100,000 those contracts set forth in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe Schedules hereto and sound banking practices (other than nonspecifically cross-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business referenced on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Business.Contracts Schedule. ------------------
(b) Except as disclosed on Schedule 4.21(b)the Contracts Schedule, (i) to the ------------------ Knowledge of the Company, no contract or commitment required to be disclosed on the Contracts Schedule has been breached or cancelled by the other party and the ------------------ Company, its Subsidiaries and the Seller have no Knowledge of any anticipated breach by any other party to any contract required to be 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 any Seller that it shall stop or 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 of any of its Subsidiaries, (iii) the Company and each of its Subsidiaries has, and to the Citywide Entities has Company's Knowledge each other party has, in all material respects performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts material contracts or commitments set forth required to be disclosed on the Contracts Schedule 4.21(a)and is not in default under ------------------ or in breach of any contract or commitment required to be disclosed on the Contracts Schedule, and none no event has occurred which with the passage of time or ------------------ the Citywide Entities is giving of notice or both would result in receipt of any claim of a default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebybreach thereunder, (iiiv) none neither the Company nor any of the Citywide Entities its Subsidiaries has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment contract required to be set forth on Schedule 4.21(a)the Contracts Schedule, and (iiiv) each agreement ------------------ required to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment be set forth on the Contracts Schedule 4.21(a)is, except for any cancellationto the Company's ------------------ Knowledge, breach or anticipated breach a valid and binding obligation of the other parties thereto other than as a result of the Creditors Rights Exception.
(c) The Seller has provided NES with a true and correct copy of all written contracts which would not, individually or in the aggregate, have a Material Adverse Effect are required to be disclosed on the Citywide Entities Contracts Schedule, ------------------ in each case together with all amendments, waivers or materially adversely affect other changes thereto (all of which are disclosed on the consummation Contracts Schedule). The Contracts Schedule ------------------ ------------------ contains an accurate in all material respects and complete description of the transactions contemplated herebyall material terms of all oral contracts required to be set forth thereon.
Appears in 1 contract
Samples: Purchase Agreement (National Equipment Services Inc)
Contracts and Commitments. (a) Schedule 4.21(a) lists Except as set forth on the following Contracts Schedule, neither the Company nor its Subsidiaries is party to which any Citywide Entity is a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):any:
(i) any employment, agency, collective bargaining Contract agreement with any trade union, works council or consulting or independent contractor Contractother labor organization;
(ii) any written contract or oral Contract commitment (A) providing for a loan with any employee of the Company or any of its Subsidiaries or (B) relating to any severance pay the employment or service of a Company Service Provider (excluding offer letters which provide for “at-will employment” that is terminable by the Company or its Subsidiary upon 30 days’ notice or less and do not provide for any Personseverance, retention or termination payments) and pursuant to which the Company or any of its Subsidiaries is or may become obligated to make any salary, wage, severance, retention, change in control, transaction bonus or any other additional payment to any current or former Company Service Provider (including as the result of the transactions contemplated by this Agreement);
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money, modifyingIndebtedness or to mortgaging, memorializing pledging or otherwise placing a Lien on any portion of the assets of the Company and its Subsidiaries, except for Permitted Liens and except for agreements related to any obligation ordinary course of any Citywide Entity upon a change of controlbusiness consistent with past practice borrowing in connection with securities transactions;
(iv) guaranty of any Contract obligation of an unrelated third party for borrowed money reasonably expected to repurchase assets previously sold (be in excess of $500,000 or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateother material guaranty;
(v) 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 payments exceed $500,000;
(Avi) lease or agreement under which it is lessor of or permits any unrelated third party to hold or operate any property, real or personal, for which the annual rental payments exceed $500,000;
(vii) contract or group of related contracts with the same party for the purchase or sale of products or services, services under which the undelivered balance of such products and services has a purchase price Company (A) made payments in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in 500,000 during the aggregate12‑month period ending on December 31, 2016 or (B) other expects to make payments in excess of $500,000 during the 12‑month period thereafter;
(viii) contract or group of related contracts with the same party continuing over a period of pursuant to which the Company received more than six months $500,000 in payments during the 12‑month period ending December 31, 2016;
(ix) contracts with the 50 largest customers of the Company and its Subsidiaries from calendar year 2016 (determined on a consolidated basis based on the amount of Net Revenues received) for the sale of products or services under which the Company received payments from such customers during the 12‑month period ending on December 31, 2016;
(x) contract or commitment to purchase property or assets pursuant to which the Company is obligated to spend more than $500,000 during the 12‑month period ending December 31, 2017;
(xi) merger, acquisition or divestiture agreement with a transaction value in excess of $500,000 completed during the three years prior to the date of this Agreement or dates thereofpursuant to which the Company or any of its Subsidiaries has any ongoing potential indemnification obligations;
(xii) joint venture agreements, partnership agreements whereby profits and losses are allocated between the Company or any of its Subsidiaries, on the one hand, and any unrelated third party, on the other hand, or material strategic alliance agreements or similar agreements;
(xiii) agreement granting a right of first refusal, first negotiation or similar right with respect to the sale of any portion of the equity or assets of the Company or any one of its Subsidiaries;
(xiv) material license or agreement pursuant to which the Company or any of its Subsidiaries obtains rights to use any third‑party Intellectual Property (excluding licenses granting the Company or any of its Subsidiaries rights to use commercial software that is not generally available);
(xv) contract which places a material obligation on the Company or one of its Subsidiaries with respect to indemnification, guarantee, warranty or similar provisions, other than those contained in (A) license, hosting and/or analysis agreements and (B) other agreements with customers entered into in the Ordinary Course ordinary course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractsbusiness consistent with past practice;
(vixvi) contract or agreement with payment obligations reasonably expected to be in excess of $500,000 in a 12-month period that would require any consent or approval of a counterparty as a result of the entering into this Agreement or consummation of the transactions contemplated by this Agreement;
(xvii) any Contract containing exclusivity, noncompetition contract which expressly prohibits in a material respect the Company or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities its Subsidiaries from freely engaging in any business anywhere in the world (including any agreement that contains any non‑competition, non‑solicitation or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available softwareno‑hire provisions);
(xiixviii) any Contract relating to Indebtedness of more than $500,000 of contract that contains any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and exclusive dealing obligation, (B) evidencing deposit Liabilities “clawback” or similar undertaking requiring the reimbursement or refund of Citywide Banks)any fees, (C) “most favored nations” or similar provision, (D) provision that grants any right of first refusal or right of first offer or similar right, or (E) any obligation with respect to an “earn‑out,” contingent purchase price or similar contingent payment obligation or other comparable liability after the date hereof;
(xiiixix) any Contract settlement agreement which imposes outstanding obligations on the costs Company or any of its Subsidiaries after the Closing Date, consent agreement, memorandum of understanding, disciplinary or similar agreement, which are Transaction Expenses; andis binding upon the Company or any of its Subsidiaries;
(xivxx) any futures clearing agreement; or
(xxi) any other Contract agreement that is material to the businesses of the Citywide Entities, taken Company and its Subsidiaries considered as a whole, which is not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), and none Section (b) of the Citywide Entities Contracts Schedule, true and correct copies of all written contracts which are referred to on the Contracts Schedule have been made available to the Purchaser.
(c) Neither the Company nor any of its Subsidiaries is in receipt default in any material respect under any contract listed on the Contracts Schedule, and, (x) to the Company’s Knowledge, no other party thereto is in default in any material respect thereunder, (y) no event or circumstance has occurred that, with due notice or lapse of time, or both, would constitute such a default or result in termination of any claim such contract or would cause or permit the acceleration of default under any Contract or commitment set forth on Schedule 4.21(a)other changes to, except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material right or obligation pursuant to thereunder or the loss of any Contract or commitment set forth on Schedule 4.21(a)material benefit, and (iiiz) each such contract is valid, binding, enforceable and in full force and effect with respect to the Knowledge of CitywideCompany or any its Subsidiaries, there has been no cancellationas applicable, breach or anticipated breach by any party thereto, and to the Company’s Knowledge, the other party to any Contract or commitment set forth on Schedule 4.21(a)thereto, except for any cancellationas enforceability may be limited by bankruptcy Laws, breach or anticipated breach which would not, individually or in other similar Laws affecting creditors’ rights and general principles of equity affecting the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation availability of the transactions contemplated herebyspecific performance and other equitable remedies.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(a) lists Except as specifically contemplated by this Agreement and except as set forth on the following "Contracts to which Schedule" attached hereto, neither the ------------------ Company nor any Citywide Entity of its Subsidiaries is a party to or subject bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):any:
(i) any employment, agency, collective bargaining Contract agreement or consulting contract with any labor union or independent contractor Contractany bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any equity purchase, equity option, hospitalization insurance or similar plan or practice, whether formal or informal;
(ii) any written contract for the employment of any officer, individual employee or oral Contract relating to other person on a full-time or consulting basis or any severance pay for any Personagreements;
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon a change of controlits assets;
(iv) any Contract agreements with respect to repurchase assets previously sold (the lending or to indemnify or otherwise compensate the purchaser in respect investing of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datefunds;
(v) license or royalty agreements;
(vi) guaranty of any obligation, other than endorsements made for collection;
(Avii) contract lease or group of related contracts with the same party for the purchase or sale of products or services, agreement under which the undelivered balance of such products and services has a purchase price it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $50,000 for 10,000 annually;
(viii) lease or agreement under which it is lessor of or permits any individual contract third party to hold or $100,000 for operate any group property, real or personal, owned or controlled by it (other than leases of related contracts equipment in the aggregate, or Ordinary Course of Business);
(Bix) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ days or less notice without penalty penalties or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts10,000;
(vix) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;world; or
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is it whether or not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b)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 the Company, its Subsidiaries and the Sellers have no knowledge of any anticipated breach by any other party to any contract required to be 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 any Seller that it shall stop or 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 of any of its Subsidiaries, (iii) the Company and each of the Citywide Entities its Subsidiaries has performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth required to be disclosed on the Contracts Schedule 4.21(a), and none of the Citywide Entities is not in receipt of any claim of default under or in breach of ------------------ any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect be disclosed on the Citywide Entities Contracts Schedule, ------------------ and no event has occurred which with the passage of time or materially adversely affect the consummation giving of the transactions contemplated herebynotice or both would result in a default or breach thereunder, (iiiv) none neither the Company nor any of the Citywide Entities its Subsidiaries has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment contract required to be set forth on Schedule 4.21(a)the Contracts Schedule, and (iiivi) each agreement required to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment be set ------------------ forth on the Contracts Schedule 4.21(a)is legal, except for any cancellationvalid, breach or anticipated breach which would notbinding, individually or enforceable and in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect ------------------ full force and effect and will continue as such following the consummation of the transactions contemplated hereby.
(c) The Sellers have 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 Contracts Schedule). The ------------------ Contracts Schedule contains an accurate and complete description of all material ------------------ terms of all oral contracts required to be set forth thereon.
Appears in 1 contract
Samples: Purchase Agreement (National Equipment Services Inc)
Contracts and Commitments. (a) Schedule 4.21(aExcept as set forth on the attached Contracts Schedule, the Company is not party to any: (i) lists purchase agreement to any completed material business acquisition by the following Contracts Company within the last two years; (ii) collective bargaining agreement or contract with any labor union; (iii) written bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.12 or the schedules relating thereto; (iv) stock purchase, stock option or similar plan; (v) material written contract for the employment of any officer, individual employee or other person on a full-time or consulting basis; (vi) material sales representative or distributor agreement; (vii) agreement or indenture relating to which the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any Citywide Entity is a party material portion of the Company’s assets other than Permitted Liens; (viii) guaranty of any obligation for borrowed money or subject other material guaranty; (ix) lease or by agreement under which it is bound lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $250,000; (such Contracts required x) lease or agreement under which it is lessor of or permits any third party to be listed on Schedule 4.21(a)hold or operate any property, real or personal, for which the “Material Contracts”):
annual rental exceeds $250,000; (i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(ii) any written or oral Contract relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (Axi) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase selling price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts 500,000 (other than purchase orders entered into in the aggregate, or ordinary course of business); (Bxii) other contract or group of related contracts with the same party continuing over a period that provides annual revenues (based on the annual revenues for the calendar year ending December 31, 2006) to the Company in excess of more $500,000 (other than six months from the date or dates thereof, which is not purchase orders entered into in the Ordinary Course ordinary course of Business and is either not terminable by it on 30 days’ business); or less notice without penalty or involves more than $50,000 for any individual (xiii) contract or $100,000 in which prohibits the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities Company from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Businessworld.
(b) Buyer 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 the Contracts Schedule, together with all material amendments, waivers or other changes thereto.
(c) Except as disclosed set forth on Schedule 4.21(b)the Contracts Schedule, (i) each contract listed on the Contracts Schedule is in full force and effect and is legal, valid and binding on the Company, and, to the Company’s knowledge, each other party thereto, enforceable against such parties in accordance with their terms, except to the extent that enforcement of the Citywide Entities has performed all obligations required rights and remedies created thereby is subject to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a)bankruptcy, insolvency, reorganization, moratorium, and none other similar laws of general application affecting the Citywide Entities is in receipt rights and remedies of any claim creditors and to general principles of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, equity; (ii) none the Company is not in breach of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to provision of any Contract contract listed on the Contracts Schedule; (ii) the Company has not repudiated or commitment set forth waived any provision of any contract listed on Schedule 4.21(a), the Contracts Schedule; and (iiiiv) to the Knowledge of CitywideCompany’s knowledge, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect contract listed on the Citywide Entities Contracts Schedule is in breach in any respect, or materially adversely affect the consummation of the transactions contemplated herebyhas repudiated or waived any provision thereunder.
Appears in 1 contract
Contracts and Commitments. (ai) Except as set forth on Schedule 4.21(a------------------------- 3.01(q), neither the Company nor any of its Subsidiaries nor the Predecessor Company (immediately prior to the consummation of the Reorganization) lists the following Contracts to which any Citywide Entity is a party to or subject bound by any written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):oral:
(iA) any employment, agency, collective bargaining Contract agreement or consulting any other contract with any labor union, or independent contractor Contractany severance agreements, programs, policies or arrangements;
(iiB) management agreement, any written contract for the employment of any officer, individual employee or oral Contract other Person on a full-time, part-time, consulting or other basis or any contract providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or any contract relating to loans to any severance pay for officers, directors or Affiliates of the Company or any Personof the Subsidiaries;
(iiiC) any written contract or oral Contract creating, modifying, memorializing or otherwise related to any obligation agreement requiring the consent of any Citywide Entity party thereto upon a change in control of controlthe Company, containing any provision which would result in a modification of any rights or obligations of any party thereunder upon a change in control of the Company or which would provide any party any remedy (including rescission or liquidated damages) in the event of a change in control of the Company, except for any such contracts or agreements involving less than $50,000 in any twelve-month period;
(ivD) contract under which it has advanced or loaned monies to any Contract to repurchase assets previously sold (or to indemnify other Person or otherwise compensate agreed to advance, loan or invest any funds (other than advances to the purchaser Company's employees in respect the ordinary course of such assetsbusiness consistent with past practice), in each case in excess of $50,000;
(E) agreement or indenture relating to Indebtedness over $50,000 or the mortgaging, pledging or otherwise placing of a Lien on any asset or group of assets of the Company or any of its Subsidiaries worth over $50,000;
(F) 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 Person, except for securities sold any lease of personal property under a repurchase agreement providing for a repurchase date 30 days or less after which the purchase dateaggregate annual rental payments do not exceed $50,000 in any twelve-month period;
(vG) 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, except for any lease of personal property under which the aggregate annual rental payments received by the Company and its Subsidiaries do not exceed $50,000 in any twelve- month period;
(AH) license or royalty agreement;
(I) third-party integration or consulting contract involving annual consideration in excess of $50,000;
(J) nondisclosure, noncompete or confidentiality agreement or agreement regarding ownership and rights with regard to software and documents related thereto produced by programmers or third-party contractors;
(K) contract or group of related contracts with the same party or group of affiliated parties for the purchase of raw materials, commodities, supplies, products, equipment or sale other personal property or for the receipt of products or services, services under which the undelivered balance of such products and services has a purchase selling price in excess of $50,000 for in any individual twelve-month period, including the Supply Agreement;
(L) contract or $100,000 for any group of related contracts with the same party or group of affiliated parties for the sale of raw materials, commodities, supplies, products or other personal property or for the furnishing of services under which the undelivered balance of such products and services has a selling price in the aggregate, or excess of $50,000 in any twelve-month period;
(BM) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof, which is not entered into thereof involving more than $50,000 in the Ordinary Course of Business and is either any twelve-month period not terminable by it on the Company or any Subsidiary upon 30 days’ ' or less notice without penalty or;
(N) contract or involves group of related contracts involving more than $50,000 for in any individual twelve-month period requiring the payment of any fee, penalty or other amount by the Company or any Subsidiary in the event of any failure to perform or late performance of such contract or $100,000 in contracts by the aggregate for Company or any group of related contractsSubsidiary;
(viO) contract relating to the marketing, sale, advertising or promotion of its products or services involving more than $50,000 in any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entitytwelve-month period;
(viiP) warranty agreement with respect to products sold or leased or services rendered or indemnity agreement with any stock purchase, stock option, restricted stock supplier or restricted stock unit other Person under which it is obligated to indemnify such supplier or stock incentive planother Person against product liability claims;
(viiiQ) agreements relating to the ownership of or investments in any Contract for capital expenditures business or enterprise, including investments in excess of $50,000joint ventures and minority equity investments;
(ixR) any partnershipassignment, joint venturelicense, limited liability company, shareholder, investor rights indemnification or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, agreement with respect to any material intangible property (including any Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available softwareRights);
(xiiS) agreement under which it has granted any Contract relating Person any registration rights with respect to Indebtedness of more than $500,000 of any of the Citywide Entities Company's securities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banksincluding demand or piggyback registration rights);
(xiiiT) material broker, agent, sales representative, sales or distribution agreement or agreement relating to the export and/or import of any Contract goods or equipment;
(U) power of attorney or other similar agreement or grant of agency;
(V) agreement restricting the costs payment of which are Transaction Expensesdividends or other distributions upon, or the conversion or repurchase of, the Preferred Stock; and
(xivW) any other Contract agreement which is material to the businesses business, results of operations, condition (financial or otherwise), prospects or operations of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of BusinessCompany or its Subsidiaries.
(bii) Except as disclosed All of the contracts, agreements and instruments set forth or required to be set forth on Schedule 4.21(b)3.01(q) are valid, (i) each binding and enforceable against the Company or the applicable Subsidiary and, to the knowledge of the Citywide Entities has Company, against the other parties thereto, 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 by this Agreement, the Ancillary Agreements, the High Yield Financing, the Senior Credit Facility and the Reorganization, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and limitations on the availability of equitable remedies. The Company and its Subsidiaries and the Predecessor Company have performed all obligations required to be performed by it prior them in all material respects and they are not in default under, or in breach of, in any material respect, nor in receipt of any claim of any material default or breach under, any such contract, agreement or instrument. To the knowledge of the Company, 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 Subsidiary under any such contract, agreement or instrument. Neither the Company nor any Subsidiary has knowledge of any breach or cancellation or anticipated breach or cancellation by the other parties to any material contract, agreement, instrument or commitment to which the Company or such Subsidiary is a party. Each of the tower sale and leaseback agreements of the Company is identical in all material respects to the date hereof in connection with form of tower sale and leaseback agreement previously provided to Blackstone.
(iii) Schedule 3.01(q) sets forth all agreements between the Contracts Company, its Subsidiaries or commitments set forth any of its Affiliates, on Schedule 4.21(a)the one hand, and none Sprint and any of its Affiliates, on the other hand, including the Sprint Management Agreement, the Sprint Services Agreement, the Sprint Spectrum Trademark and Service Xxxx License Agreement and the Sprint Trademark and Service Xxxx License Agreement (collectively, the "Sprint Agreements"). The Sprint Agreements are valid, ----------------- binding and enforceable against the Company or its Subsidiaries and Sprint PCS, 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 Citywide Entities is transactions contemplated by this Agreement, the Ancillary Agreements, the High Yield Financing, the Senior Credit Facility and the Reorganization, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and limitations on the availability of equitable remedies. The Company and its Subsidiaries have performed all obligations required to be performed by them in any material respect and they are not in default under or in breach of, in any material respect, nor in receipt of any claim of default or breach under, any of the Sprint Agreements. To the knowledge of the Company, 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 Subsidiary under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none Sprint Agreements. Neither the Company nor any Subsidiary has knowledge of any breach or cancellation or anticipated breach or cancellation by Sprint or any of its Affiliates of any of the Citywide Entities Sprint Agreements.
(iv) Blackstone has been supplied with a true and correct copy of each of the written instruments, plans, contracts and agreements, including the Sprint Agreements and the Supply Agreement (other than the tower sale and leaseback agreements of the Company or any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(aSubsidiary), and (iii) an accurate description of each of the oral arrangements, oral contracts and oral agreements which are referred to on the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a3.01(q), except for any cancellationtogether with all amendments, breach waivers or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyother changes thereto.
Appears in 1 contract
Samples: Investment Agreement (Ipcs Inc)
Contracts and Commitments. (a) Except as set forth in Section 3.16 or in the “Contracts Schedule” attached hereto as Schedule 4.21(a3.10(a) lists or in the following “Customer Contracts to which any Citywide Entity Schedule” attached hereto as Schedule 3.10(d), Seller is not a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):any:
(i) contract with any employmentlabor union or contract for the employment of any officer, agencyindividual employee or other person on a full-time, collective bargaining Contract part-time or consulting or independent contractor Contractbasis;
(ii) mortgaging, pledging or otherwise placing a lien on any written or oral Contract relating to any severance pay for any Personof the Purchased Assets;
(iii) any written license or oral Contract creating, modifying, memorializing or otherwise royalty agreement related to any obligation of any Citywide Entity upon a change of controlthe Business;
(iv) lease or agreement related to the Business under which it is lessee of or holds or operates any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datepersonal property owned by any other party;
(v) lease or agreement related to the Business 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;
(Avi) contract or group of related contracts related to the Business with the same party for the purchase or sale of products or services, under which services other than the undelivered balance of such products and services has a purchase price Customer Contracts (as defined in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or Section 3.10(d) hereof);
(Bvii) other contract or group of related contracts to the Business with the same any party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 thirty (30) days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive planpenalties;
(viii) any Contract for capital expenditures contract which prohibits it from freely engaging in excess of $50,000the Business anywhere in the world;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;contract relating to the distribution of its products as it relates to the Business; or
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material agreements related to the businesses of the Citywide Entities, taken as a whole, which is Business whether or not entered into in the Ordinary Course ordinary course of Businessbusiness but not including insurance agreements.
(b) Except as specifically disclosed on in the Contracts Schedule 4.21(b)or the Customer Contracts Schedule, (i) each to the Seller’s knowledge, no contract or commitment related to the Business has been breached in any respect or canceled by the other party; (ii) since December 31, 2005, no supplier of the Citywide Entities Business has notified the Seller that it shall stop or decrease in any material respect the rate of business done with the Seller; (iii) the Seller has in all respects performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), of this Agreement and none of the Citywide Entities is not in receipt of any claim of default under any Contract material lease, contract, commitment or commitment set forth on Schedule 4.21(a)other agreement related to the Business to which it is a party; (iv) to Seller’s knowledge, except for no event has occurred which with the passage of time or the giving of notice or both would result in a breach or default under any failures lease, contract, instrument or other agreement related to performthe Business to which the Seller is a party and which is related to the Business; and (v) the Seller is not a party to any contract which is adverse to the Business’s operations, breaches financial condition, operating results or defaults business prospects.
(c) Purchaser has been supplied with a true and correct copy of all written contracts which would not, individually or in the aggregate, have a Material Adverse Effect are referred to on the Citywide Entities Contract Schedule and Customer Contracts Schedule, together with all amendments, waivers or materially adversely affect the consummation other changes thereto.
(d) Seller has no knowledge of any (i) pending or threatened termination, cancellation, limitation, modification or change in any of the transactions contemplated herebySeller’s business relationships with any customer or group of customers, any vendor or supplier related to the Business or (ii) none changes or pending changes in any law, rule, regulation, technology, or business relationship or other circumstance that could result in the loss of any customers related to the Business after the date hereof. Each contract, agreement or lease with customers of Seller relating to the Business (“Customer Contracts”) are listed on Schedule 3.10(d) (the “Customer Contracts Schedule”). Except as indicated on the Customer Contract Schedule, (A) each of the Citywide Entities has Customer Contracts is valid, enforceable and in full force and effect in accordance with the terms thereof, (B) there is no existing default or event or condition which, with notice or lapse of time or both, would constitute an event of default under any present expectation or intention of not fully performing any material obligation pursuant to any Customer Contract, (C) no Customer Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been amended, modified, supplemented or otherwise altered orally, in writing or by course of conduct, (D) no cancellation, breach Customer Contract requires the consent of the Customer or anticipated breach by any other party to any affect a valid assignment thereof to Purchaser without causing a default or giving rise to a right of termination thereunder and (E) each Customer Contract or commitment set forth on Schedule 4.21(a)complies with all applicable laws, except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyrules and regulations.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in Section 2.16 or in the "Contracts Schedule" attached hereto as Schedule 4.21(a2.10(a) lists or in the following "Customer Contracts Schedule" attached hereto as Schedule 2.10(d) (such contracts and agreements listed on such schedules are referred to which herein as the "Contracts"), neither CRG nor any Citywide Entity Subsidiary is a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):any:
(i) any employmentbonus, agencypension, collective bargaining Contract profit sharing, retirement or consulting deferred compensation plan or independent contractor Contractstock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal, or severance agreements or arrangements;
(ii) contract with any written labor union or oral Contract relating to contract for the employment of any severance pay officer, individual employee or other person on a full-time, part-time or consulting basis for any Personaggregate consideration, or requiring aggregate payments, of more than $10,000 per annum;
(iii) mortgage, pledge or other lien placed on any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of controlthe CRG Assets;
(iv) guarantee of any Contract to repurchase assets previously sold (obligation for borrowed money or to indemnify or otherwise compensate otherwise, other than endorsements made for collection in the purchaser in respect ordinary course of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datebusiness;
(v) agreement or commitment with respect to the lending or investing of funds to or in other persons or entities;
(vi) license or royalty agreement related to the Business;
(vii) lease or agreement related to the Business under which it is lessee of or holds or operates any personal property owned by any other party;
(Aviii) lease or agreement related to the Business 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;
(ix) contract or group of related contracts related to the Business with the same party for the purchase or sale of products or services, under which services other than the undelivered balance of such products and services has a purchase price Customer Contracts (as defined in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or Section 2.10(d) hereof);
(Bx) other contract or group of related contracts to the Business with the same any party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 thirty (30) days’ ' or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractspenalties;
(vixi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)world;
(xii) any Contract contract relating to Indebtedness the distribution of more than $500,000 of any of its products as it relates to the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide BanksBusiness; and (B) evidencing deposit Liabilities of Citywide Banks);or
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material agreements related to the businesses of the Citywide Entities, taken as a whole, which is Business whether or not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as specifically disclosed on in the Contracts Schedule 4.21(b), or the Customer Contracts Schedule; (i) no material contract or commitment related to the Business has been breached in any respect by CRG or the Subsidiaries, and to CRG's Knowledge, no material contract or commitment related to the Business has been breached in any respect by the other party thereto or canceled by the other party; (ii) since May 31, 1999, no supplier of the Business has notified CRG or the Subsidiaries that it shall stop or decrease in any material respect the rate of business done with CRG or the Subsidiaries, as applicable; (iii) each of CRG and the Citywide Entities Subsidiaries has in all material respects performed all the obligations required to be performed by it prior them to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), Closing Date and none of the Citywide Entities is are not in receipt of any claim of default under any material lease, contract, commitment or other agreement related to the Business to which it is a party; (iv) no event has occurred which with the passage of time or the giving of notice or both would result in a breach or default under any lease, contract, instrument or other agreement related to the Business to which CRG or any Subsidiary is a party, except for any such event that would not have a Material Adverse Effect; (v) no contract or agreement has been amended or otherwise modified, or exchanged (pursuant to a Code Section 1035 exchange or otherwise), the effect of which amendment, modification or exchange would be to reduce the commissions or revenue payable in respect of such contract or agreement; and (vi) neither CRG nor any Subsidiary is a party to any contract which is adverse to the Business's operations, financial condition, operating results or business prospects.
(c) Purchasers have been supplied with a true and correct copy of each written contract which is referred to on the Contract Schedule and Customer Contracts Schedule, together with all amendments, waivers or commitment other changes thereto.
(d) Except as set forth on Schedule 4.21(a2.10(d), except for CRG has no Knowledge of any failures (i) pending or threatened termination, cancellation, limitation, modification or change in any of its business relationships with any customer or group of customers related to perform, breaches the Business or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none changes or pending changes in any business relationship or other circumstance that could result in the loss of any customers related to the Business after the date hereof. Each contract, agreement or lease with customers of each of CRG and the Subsidiaries relating to the Business ("Customer Contracts") are listed in the "Customer Contracts Schedule" attached hereto as Schedule 2.10(d). Except as indicated on Schedule 2.10(d), (A) each of the Citywide Entities has Customer Contracts is valid, enforceable and in full force and effect in accordance with the terms thereof, (B) there is no existing default or event or condition which, with notice or lapse of time or both, would constitute an event of default under any present expectation or intention of not fully performing any material obligation pursuant to any Customer Contract, (C) no Customer Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been amended, modified, supplemented or otherwise altered orally, in writing or by course of conduct, (D) no cancellation, breach Customer Contract requires the consent of the customer or anticipated breach by any other party to any effect a valid assignment thereof to MergerSub without causing a default or giving rise to a right of termination thereunder, and (E) to CRG's Knowledge, each Customer Contract or commitment set forth on Schedule 4.21(a)complies with all applicable laws, except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyrules and regulations.
Appears in 1 contract
Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth in Schedule 4.21(a) lists 3.10 the following Contracts to which any Citywide Entity Seller is not a party to or subject bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):any:
(i) any employment, agency, collective bargaining agreement or Contract with any labor union or consulting any bonus, commissions, pension, profit sharing, retirement or independent contractor Contractany other form of deferred compensation or incentive plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal;
(ii) Contract for the employment of any written officer, individual employee or oral Contract relating to other Person on a full-time, consulting or independent contractor basis or any severance pay for any Personagreements or change-of-control agreements;
(iii) any written Contract relating to Indebtedness or oral Contract creatingto mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon its assets, other than a change of controlPermitted Lien;
(iv) any Contract Contracts with respect to repurchase assets previously sold (the lending or to indemnify or otherwise compensate the purchaser in respect investing of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datefunds;
(v) license or royalty Contracts, or management, consulting, or advisory contracts;
(vi) guaranty of any obligation, other than endorsements made for collection;
(Avii) contract Contract under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments by the Seller or under which the Seller is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it;
(viii) Contract or group of related contracts Contracts with the same party for the purchase or sale of supplies, products or services, under other personal property or for the furnishing or receipt of services which the undelivered balance either calls for performance over a period of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or more than one year;
(Bix) other contract Contract or group of related contracts Contracts with the same party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ days or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractspenalties;
(vix) Contracts relating to the ownership of or investments in any business or enterprise (including, but not limited to, investments in joint ventures and minority equity investments);
(xi) Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)world;
(xii) any Contract relating to Indebtedness the distribution, marketing, advertising or sales of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks)its products and/or services;
(xiii) any Contract the costs of Contracts pursuant to which are Transaction Expenses; andit subcontracts work to third parties;
(xiv) power of attorney;
(xv) Contract relating to the acquisition or sale of the Business (or any material portion thereof);
(xvi) Contracts relating to Proprietary Rights except as set forth in Schedule 3.11(b); or
(xvii) other Contract Contracts material to the businesses of the Citywide Entitiesit, taken as a whole, which is whether or not entered into in the Ordinary Course of Business.
(b) Except as disclosed on in Schedule 4.21(b3.8(b), Schedule 3.10 or Schedule 3.11(b), (i) each no Contract or commitment required to be disclosed on Schedule 3.8(b), Schedule 3.10 or Schedule 3.11(b) (each, a “Material Contract” and collectively, the “Material Contracts”) has been breached or canceled by the other party, and the Seller has no Knowledge of any anticipated breach by any other party to any Material Contract, (ii) the Citywide Entities Seller has performed all the obligations required to be performed by it prior them under the Material Contracts to the extent required to be so performed as of the date hereof or as of the Closing Date and are not in connection default under or in breach of any Material Contract, and no event or condition has occurred or arisen which with the Contracts passage of time or commitments set forth on Schedule 4.21(a)the giving of notice or both would result in a default or breach thereunder, and none of (iii) the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, Seller does not have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a)Material Contract, and (iiiiv) to the Knowledge of Citywideeach Material Contract is legal, there has been no cancellationvalid, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a)binding, except for any cancellation, breach or anticipated breach which would not, individually or enforceable and in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect full force and effect and will continue as such following the consummation of the transactions contemplated hereby.
(c) The Company has made available to Buyer a true and correct copy of all written Material Contracts, in each case together with all amendments, waivers or other changes thereto (all of which are disclosed on Schedule 3.10 or Schedule 3.11(b)). Schedule 3.10 or Schedule 3.11(b) contains an accurate and complete description of all material terms of all oral Material Contracts referred to therein.
(d) During the two-year period ending on the date of this Agreement, the Seller has not used any name or names under which they have invoiced account debtors, maintained records regarding its assets or otherwise conducted business other than the exact names set forth on Schedule 3.10 or Schedule 3.11(b).
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(a) The Disclosure Schedule, under the caption referencing this Section 4.13, lists the following Contracts agreements, whether oral or written, to which any Citywide Entity Seller is a party party, which are currently in effect, and which relate to the manufacture and distribution of the Products or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):
Assets: (i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
confidentiality agreements; (ii) any written or oral Contract relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts with the same party for the purchase or sale of products or services, services under which the undelivered balance of such products and or services has a purchase price is in excess of Ten Thousand Dollars ($50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or 10,000); (Biii) other 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 Ten Thousand Dollars ($10,000); (iv) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six (6) months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 thirty (30) days’ ' or less notice without penalty or involves and involving more than Ten Thousand Dollars ($50,000 for any individual 10,000); (v) contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities which prohibits Seller from freely engaging in business anywhere in the world or prohibiting world; (vi) contract for the solicitation distribution of any of the employees or contractors of Products (including any other entity;
distributor, sales representative, sales and original equipment manufacturer contract); (vii) any stock purchase, stock option, restricted stock license agreement or restricted stock unit agreement providing for the payment or stock incentive plan;
receipt of royalties or other compensation by Seller in connection with the intellectual property rights listed under the caption referencing Section 1.01(f) and (g) hereof in the Disclosure Schedule; (viii) any Contract contract or commitment for capital expenditures in excess of Ten Thousand Dollars ($50,000;
10,000) or (ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to agreement which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract either material to the businesses manufacture or distribution of the Citywide Entities, taken as a whole, which is Products or was not entered into in the Ordinary Course ordinary course of Businessbusiness and which is a contract to be assumed by Buyer hereunder.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities Seller has performed all material obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth on required to be disclosed in the Disclosure Schedule 4.21(a), under the caption referencing this Section 4.13 and none of the Citywide Entities is not in receipt of any claim of default under any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities be disclosed under such caption; Seller has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract contract or commitment set forth on Schedule 4.21(a), required to be disclosed under such caption; and (iii) to the Knowledge Seller has no knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by any other party to any Contract contract or commitment set forth on Schedule 4.21(a)required to be disclosed under such caption.
(c) Prior to the date of this Agreement, except for any cancellationBuyer has been supplied with a true and correct copy of each written contract or commitment, breach and a written description of each oral contract or anticipated breach which would notcommitment, individually or referred to under the caption referencing this Section 4.13 in the aggregateDisclosure Schedule, have a Material Adverse Effect on the Citywide Entities together with all amendments, waivers or materially adversely affect the consummation of the transactions contemplated herebyother changes thereto.
Appears in 1 contract
Contracts and Commitments. The Company Disclosure Letter sets forth a true, correct and complete list of the following contracts to which the Company or a Subsidiary is a party (including every amendment, modification or supplement to the foregoing): (a) Schedule 4.21(aall contracts or agreements which limit or restrict the Company, any Subsidiary or any officer or, to the Knowledge of the Company, any key employee of the Company or any Subsidiary from engaging in any line of business conducted by the Company or any Subsidiary in any jurisdiction, (b) lists all franchising agreements, (c) any contract or agreement with any material agent used to supplement the following Contracts Company's transportation network which is not terminable without penalty on sixty calendar days' or less notice, (d) any joint venture or partnership agreement or other similar agreement, (e) any contract pursuant to which the Company or any Citywide Entity is a party Subsidiary provides for the indemnification or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(ii) any written or oral Contract relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation holding harmless of any Citywide Entity upon a change current or former officer, director or employee of control;
the Company or any Subsidiary, (ivf) any Contract to repurchase assets previously sold (agreements or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts with the same party arrangements for the purchase or sale of products or services, under which any assets (other than in the undelivered balance ordinary course of such products and services has a purchase price business) with an individual value in excess of $50,000 for any individual contract 150,000 or $100,000 for any group of related contracts in the aggregate, or (B) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the an aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures value in excess of $50,000;
750,000, (ixg) agreements, contracts or indentures relating to the borrowing of money by the Company or any partnershipSubsidiary, joint venture(h) all exchange traded or over-the-counter swap, limited liability companyforward, shareholderfuture, investor rights option, cap, floor or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes availablecollar financial contracts, or is granted any other interest rate or receivesforeign currency protection contract; (i) all licensing agreements in connection with which Company and the Subsidiaries have made or received payments, any license or other right requiring an expenditure are obligated to make or entitled to receive payments, in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks100,000; and (Bj) evidencing deposit Liabilities other than contracts identified in the Company Disclosure Letter pursuant to Section 4.16 or (a) through (i) of Citywide Banks);
(xiii) this Section 4.18, all other contracts, agreements or commitments, including customer contracts, involving payments made by or to the Company or a Subsidiary of $1,000,000 or more per year and not terminable without penalty on sixty calendar days' or less notice. Except as set forth in an exhibit attached to the SEC Reports or in the Company Disclosure Letter, neither the Company nor any Contract the costs of Subsidiary is a party to any agreement, arrangement or commitment which are Transaction Expenses; and
(xiv) any other Contract is material to the businesses of the Citywide Entities, Company and the Subsidiaries taken as a whole. The Company has delivered or made available true, which is not entered into in correct and complete copies of all such agreements, arrangements and commitments to Parent. Neither the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b), (i) each Company nor any of the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), and none of the Citywide Entities Subsidiaries is in receipt of any claim of default under any Contract such agreement, arrangement or commitment set forth on Schedule 4.21(a)which has had, except for any failures or could reasonably be expected to performhave, breaches or defaults which would not, individually or in the aggregate, have a Company Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyEffect.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(a) lists Except as specifically contemplated by this Agreement and except as set forth on the following "Contracts to which any Citywide Entity Schedule" attached hereto, the Company is not a party to or subject bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):any:
(i) any employment, agency, collective bargaining Contract agreement or consulting contract with any labor union or independent contractor Contractany 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 written contract for the employment of any officer, individual employee or oral Contract relating to other person on a full-time or consulting basis or any severance pay for any Personagreements;
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon a change of controlits assets;
(iv) any Contract agreements with respect to repurchase assets previously sold (the lending or to indemnify or otherwise compensate the purchaser in respect investing of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datefunds;
(v) license or royalty agreements;
(vi) guaranty of any obligation, other than endorsements made for collection;
(Avii) contract lease or group of related contracts with the same party for the purchase or sale of products or services, agreement under which the undelivered balance of such products and services has a purchase price it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or 10,000 annually;
(Bviii) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ days or less notice without penalty penalties or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts10,000;
(viix) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;world; or
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is it whether or not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b)the Contracts Schedule, (i) each no contract or commitment required to be disclosed on the Contracts Schedule has been breached or cancelled by the other party and the Company has no Knowledge of any anticipated breach by any other party to any contract set forth on the Citywide Entities Contracts Schedule, (ii) no customer or supplier has indicated in writing or orally to the Company or the Seller that it shall stop or decrease the rate of business done with the Company or that it desires to renegotiate its contract or current arrangement with the Company, (iii) the Company has performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth required to be disclosed on the Contracts Schedule 4.21(a)and is not in default under or in breach of any contract or commitment required to be disclosed on the Contracts Schedule, and none no event has occurred which with the passage of time or the Citywide Entities is giving of notice or both would result in receipt of any claim of a default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebybreach thereunder, (iiiv) none of the Citywide Entities Company has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment contract set forth on Schedule 4.21(a)the Contracts Schedule, and (iiivi) to the Knowledge of Citywideeach agreement is legal, there has been no cancellationvalid, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a)binding, except for any cancellation, breach or anticipated breach which would not, individually or enforceable and in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect full force and effect and will continue as such following the consummation of the 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 Contracts Schedule). The Contracts Schedule contains an accurate and complete description of all material terms of all oral contracts referred to therein.
Appears in 1 contract
Contracts and Commitments. Except as set forth on Schedules 1.7 or 5.16 to the Disclosure Schedule, the Company is not a party to, or bound or affected by any contract, lease, agreement, covenant, license, instrument or commitment (whether written or oral) of any type, including the following:
(a) Schedule 4.21(acontracts for the employment or compensation of any officer or individual employee, not terminable without further liability at any time:
(b) lists contracts with any labor union;
(c) continuing contracts for the following Contracts future purchase of materials, supplies or equipment, at a cost of $10,000 or more, or to be delivered more than ninety (90) days after the date hereof;
(d) continuing contracts for the future provision of its services;
(e) distribution or agency contracts, franchise contracts, or advertising commitments, which any Citywide Entity is a party cannot be terminated without further liability to the Company upon no more than thirty (30) days' notice;
(f) pension, profit sharing, deferred compensation, retirement or subject stock option or by stock purchase plans in effect with respect to officers, employees or others;
(g) leases under which it is bound lessor or lessee;
(such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):h) underwriting agreements or agreements with a broker or finder;
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contractagreements;
(iij) any written or oral Contract relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts with the same party for the purchase acquisition of a business, or sale substantially all of products the property, assets, or services, stock of a business under which there are any continuing or unperformed obligations on the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 part of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banksparties thereto; and (B) evidencing deposit Liabilities of Citywide Banks);or
(xiiik) any Contract the costs of which are Transaction Expenses; and
(xiv) any Any other Contract material to the businesses of the Citywide Entitiescontract, taken as a wholeagreement, or commitment involving $10,000 or more or which is not entered into in terminable without further liability to the Ordinary Course Company upon no more than thirty (30) days' notice. There have been delivered to Buyer true and correct copies of Business.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities Contracts listed in the Disclosure Schedule. Except as set forth on Schedule 5.16 to the Disclosure Schedule, all of the Contracts listed on Schedule 5.16 are valid, binding and in full force and effect and are enforceable in accordance with their terms against all other parties to such Contracts and are assignable to Buyer; provided, however, neither the Company nor the Member makes any representation or warranty with respect to whether any or all Medicare licenses or provider numbers or approvals can be assumed by Buyer or Renex. Buyer and Renex shall be responsible for seeking any such assignments or approvals (or issuances of new numbers where required) and the Company and Member shall cooperate and execute such documents as are reasonably required. The Company has performed all material obligations required to be performed by it prior to date and is not in default in any material respect under any Contract to which it is a party. To the date hereof knowledge of the Company and the Member no other party to any such Contract is in connection default with the Contracts or commitments terms thereof. Except as set forth on Schedule 4.21(a)5.16 to the Disclosure Schedule, and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth Contracts listed on Schedule 4.21(a)5.16 were arrived at, except for any failures to performor otherwise reflect, breaches less than arms length negotiations or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebybargaining.
Appears in 1 contract
Contracts and Commitments. i. Except as set forth on the Target Disclosure Schedule, the Target (aor to the knowledge of the president of the Target, any employee of the Target with respect to the business of the Target) Schedule 4.21(a) lists the following Contracts to which any Citywide Entity is not a party to or subject bound by any written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):oral:
(i1) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any employmentother employee benefit plan, agencyarrangement or practice, collective bargaining Contract whether formal or consulting or independent contractor Contractinformal;
(ii2) collective bargaining agreement or any written other contract with any labor union, or oral Contract relating to any severance pay for any Personagreements, programs, policies or arrangements;
(iii3) any written or oral Contract creatingmanagement agreement, modifying, memorializing or otherwise related to any obligation contract for the employment of any Citywide Entity officer, individual employee or other Person on a full-time, part-time, consulting or other basis providing annual cash or other compensation in excess of $50,000 or providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby;
(4) material contract or agreement requiring the consent of any party thereto upon a change in control of controlthe Target, containing any provision which would result in a modification of any rights or obligations of any party thereunder upon a change in control of the Target or which would provide any party any remedy (including rescission or liquidated damages) in the event of a change in control of the Target;
(iv5) contract under which it has advanced or loaned monies to any Contract to repurchase assets previously sold (or to indemnify other Person or otherwise compensate agreed to advance, loan or invest any funds;
(6) agreement or indenture relating to borrowed money or other Indebtedness or the purchaser mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Target or any letter of credit arrangements;
(7) guaranty of any obligation for borrowed money or otherwise (other than endorsements made for collection in respect the ordinary course of such assetsbusiness);
(8) lease or agreement under which the Target is lessee of or holds or operates any property, real or personal, owned by any other Person, except for securities sold any lease of personal property under a repurchase agreement providing for a repurchase date 30 days or less after which the purchase dateaggregate annual rental payments do not exceed $25,000;
(v9) lease or agreement under which the Target is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Target;
(A10) license or royalty agreements, other than any license or royalty agreements related to third party off-the-shelf software;
(11) nondisclosure or confidentiality agreements, other than such entered into with customers in the ordinary course of business and consistent with past practice;
(12) contract or group of related contracts with the same party or group of affiliated parties for the purchase of raw materials, commodities, supplies, products, equipment or sale other personal property or for the receipt of products or services, services under which the undelivered balance of such products and services has a purchase selling price in excess of $50,000 for any individual 50,000;
(13) contract or $100,000 for any group of related contracts with the same party or group of affiliated parties for the sale of raw materials, commodities, supplies, products or other personal property or for the furnishing of services under which the undelivered balance of such products or services due from the Target has a selling price in the aggregate, or excess of $50,000;
(B14) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on the Target upon 30 days’ ' or less notice without penalty or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts50,000;
(vi15) contract relating to the marketing, sale, advertising or promotion of its products;
(16) warranty agreement with respect to products sold or leased (other than any Contract such agreement containing exclusivitythe standard terms and conditions described on the Target Disclosure Schedule corresponding to this Section or indemnity agreement with any supplier under which it is obligated to indemnify such supplier against product liability claims;
(17) agreements relating to the ownership of or investments in any business or enterprise, noncompetition including investments in joint ventures and minority equity investments;
(18) assignment, license, indemnification or nonsolicitation provisions other agreement with respect to any intangible property (including any Intellectual Property Rights);
(19) agreement under which it has granted any Person any registration rights (including demand or that would otherwise prohibit piggyback registration rights);
(20) broker, agent, sales representative, sales or distribution agreement or material agreement relating to the export and/or import of any goods or equipment;
(21) power of the Citywide Entities attorney or other similar agreement or grant of agency;
(22) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;world; or
(vii23) any stock purchase, stock option, restricted stock other agreement which is material to its operations or restricted stock unit business prospects or stock incentive plan;
(viii) any Contract for capital expenditures involves an annual consideration in excess of $50,000;, whether or not in the ordinary course of business, other than any agreement specified by paragraphs (a) through (v) above.
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any ii. All of the Citywide Entities grants contracts, agreements and instruments set forth or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, required to be set forth on the Target Disclosure Schedule corresponding to this Section and with respect to any material Intellectual Property in each case that is reasonably necessary to operate which the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe Target does or may recognize sales or revenues and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any all of the Citywide Entities (other thanmaterial contracts, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; agreements and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities has performed all obligations instruments set forth or required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on the Target Disclosure Schedule 4.21(a)corresponding to this Section are valid, binding and none of the Citywide Entities is enforceable in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or accordance with their respective terms and shall be in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the full force and effect in accordance with their terms upon consummation of the transactions contemplated hereby, (ii) none of ; provided that the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), representations and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby.warranties set
Appears in 1 contract
Samples: Merger Agreement (Sabratek Corp)
Contracts and Commitments. (a) Except as set forth in Section 3.16 or in the "Contracts Schedule" attached hereto as Schedule 4.21(a3.10(a) lists or in the following "Customer Contracts to which any Citywide Entity Schedule" attached hereto as Schedule 3.10(d), Seller is not a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):any:
(i) any employmentbonus, agencypension, collective bargaining Contract profit sharing, retirement or consulting deferred compensation plan or independent contractor Contractstock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal, or severance agreements or arrangements or contracts requiring Seller to pay post-retirement medical benefits;
(ii) contract for the employment of any written officer, individual employee or oral Contract relating to any severance pay for any Personother person on a full-time, part-time or consulting basis;
(iii) any written or oral Contract creatingmortgaging, modifying, memorializing pledging or otherwise related to placing a lien on any obligation of any Citywide Entity upon a change of controlthe Purchased Assets;
(iv) guarantee of any Contract to repurchase assets previously sold (obligation for borrowed money or to indemnify or otherwise compensate otherwise, other than endorsements made for collection in the purchaser in respect ordinary course of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datebusiness;
(v) agreement or commitment with respect to the lending or investing of funds to or in other persons or entities;
(vi) license or royalty agreement related to the Business;
(vii) lease or agreement related to the Business under which it is lessee of or holds or operates any personal property owned by any other party;
(Aviii) lease or agreement related to the Business 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;
(ix) contract or group of related contracts related to the Business with the same party for the purchase or sale of products or services, under which services other than the undelivered balance of such products and services has a purchase price Customer Contracts (as defined in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or Section 3.10(d) hereof);
(Bx) other contract or group of related contracts to the Business with the same any party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 sixty (60) days’ ' or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractspenalties;
(vixi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)world;
(xii) any Contract contract relating to Indebtedness the distribution of more than $500,000 of any of its products as it relates to the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide BanksBusiness; and (B) evidencing deposit Liabilities of Citywide Banks);or
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract agreements material to the businesses of the Citywide Entities, taken as a whole, which is Business whether or not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as specifically disclosed on in the Contracts Schedule 4.21(b)or the Customer Contracts Schedule, (i) each no contract or commitment related to the Business has been breached in any respect or canceled by the other party to the Seller's knowledge, (ii) since December 31, 2000, no supplier of the Citywide Entities Business has notified Seller that it shall stop or decrease in any material respect the rate of business done with Seller, (iii) Seller has in all respects performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), of this Agreement and none of the Citywide Entities is not in receipt of any claim of default under any material lease, contract, commitment or other agreement related to the Business to which it is a party; (iv) to the Seller's knowledge, no event has occurred which with the passage of time or the giving of notice or both would reasonably be expected to result in a breach or default under any lease, contract, instrument or other agreement related to the Business to which Seller is a party and which is related to the Business; and (v) Seller is not a party to any contract which is adverse to the Business's operations, financial condition, operating results or business prospects.
(c) Purchasers have been supplied with a true and correct copy of all written contracts which are referred to on the Contract Schedule and Customer Contracts Schedule, together with all amendments, waivers or commitment set forth other changes thereto.
(d) Except as disclosed on Schedule 4.21(a3.10(d), except for Seller has no knowledge of any failures (i) pending or threatened termination, cancellation, limitation, modification or change outside the ordinary course of Seller's business relationship with any customer or group of customers related to perform, breaches the Business or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none changes or pending changes in any law, rule, regulation, technology, or business relationship or other circumstance that could result in the loss of any customers related to the Citywide Entities has any present expectation Business after the date hereof. Except as indicated on the Customer Contract Schedule, (A) each contract, agreement or intention lease with customers of not fully performing any material obligation pursuant Seller relating to any Contract or commitment set forth on Schedule 4.21(a)the Business ("Customer Contracts") is valid, enforceable and in full force and effect in accordance with the terms thereof, (iiiB) to the Knowledge of CitywideSeller's knowledge, there is no existing default or event or condition which, with notice or lapse of time or both, could be reasonably expected to constitute an event of default under any Customer Contract, (C) no Customer Contract has been amended, modified, supplemented or otherwise altered orally, in writing or by course of conduct, (D) no cancellation, breach Customer Contract requires the consent of the Customer or anticipated breach by any other party to any affect a valid assignment thereof to Purchasers without causing a default or giving rise to a right of termination thereunder and (E) each Customer Contract or commitment complies with all applicable laws, rules and regulations. Except as set forth on Schedule 4.21(a)in the Customer Contract Schedule, except for neither the Seller nor any Shareholder has any knowledge of any (i) pending or threatened termination, cancellation, breach limitation, modification or anticipated breach which would notchange in any of Seller's business relationships with any customer or group of customers related to the Business or (ii) changes or pending changes in any law, individually rule, regulation, technology, or business relationship or other circumstance that could be reasonably expected to result in the aggregate, have a Material Adverse Effect on loss of any customers related to the Citywide Entities or materially adversely affect Business after the consummation of the transactions contemplated herebydate hereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Clark/Bardes Holdings Inc)
Contracts and Commitments. (a) Schedule 4.21(a) 3.14 lists the following Contracts agreements, whether oral or written, to which any Citywide Entity Lavenir is a party or subject or by party, which it is bound (such Contracts required are currently in effect, and which relate to be listed on Schedule 4.21(a), the “Material Contracts”):
Transferred Assets: (i) any employment, agency, collective bargaining Contract agreement or consulting or independent contractor Contract;
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) contract for the employment of any written officer, individual employee or oral Contract other person on a full-time or consulting basis or relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
person; (v) confidentiality agreement; (vi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the Transferred Assets; (Avii) guaranty of any obligation for borrowed money or otherwise; (viii) contract or group of related contracts with the same party for the purchase or sale of products or services, services under which the undelivered balance of such products and or services has a purchase price is in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or 25,000; (Bix) other contract or group of related contracts with the same party continuing over for the sale of products or services under which the undelivered balance of such products or services has a period sales price in excess of more than six months from the date or dates thereof, $10,000; (x) contract which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities prohibits Lavenir from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
world; (xi) any Contract pursuant to which any of contract for the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 distribution of any of the Citywide Entities products that comprise Transferred Assets; (other than, in the case of Citywide Banks, deposit agreements: (Axii) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banksfranchise agreement; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract license agreement or agreement providing for the costs payment or receipt of which are Transaction Expensesroyalties or other compensation by Lavenir in connection with the Intellectual Property Rights related to the Transferred Assets; and
(xiv) any other Contract agreement which is either material to the businesses of the Citywide Entities, taken as a whole, which is Transferred Assets or was not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as disclosed set forth on Schedule 4.21(b)3.14, (i) each of the Citywide Entities Lavenir has performed all material obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth on required to be disclosed in Schedule 4.21(a), 3.14 and none of the Citywide Entities is not in receipt of any claim of default under any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities be disclosed under such schedule; Lavenir has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract contract or commitment set forth on Schedule 4.21(a), required to be disclosed under such schedule; and (iii) to the Knowledge Lavenir has no knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by any other party to any Contract contract or commitment required to be disclosed under such schedule.
(c) Prior to the Closing Date, GMI will have been supplied with a correct and complete copy of each written contract or commitment, and a written description of each oral contract or commitment, set forth on Schedule 4.21(a)3.14 together with all amendments, except for any cancellation, breach waivers or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyother changes thereto.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Global Maintech Corp)
Contracts and Commitments. (a) Except as set forth on the Contracts Schedule 4.21(a) lists the following Contracts to which any Citywide Entity is a party or subject or by which it is bound (such Contracts contracts required to be listed on Schedule 4.21(a)disclosed thereon, the “Material Contracts”), neither the Company nor any of its Subsidiaries is party to or bound by any of the following (whether written or oral):
(i) any employmentbonus, agencypension, collective bargaining Contract profit sharing, retirement or consulting other form of deferred compensation plan, other than as described in Section 2.14 or independent contractor Contractthe Disclosure Schedules relating thereto;
(ii) contract, letter or agreement for the employment of any written officer, individual employee or oral Contract relating to any severance pay other person on a full-time or consulting basis providing for any Personbase compensation in excess of $100,000 per year;
(iii) any written agreement, note, bond or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien (other than Permitted Liens) on any obligation of the assets of the Company or any Subsidiary of the Company or that evidences any Indebtedness for borrowed money of the Company or of any Citywide Entity upon a change Subsidiary of controlthe Company;
(iv) agreement, note, bond or indenture relating to the lending of money to any Contract to repurchase assets previously sold (Person by the Company or to indemnify or otherwise compensate any Subsidiary of the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateCompany;
(v) guaranty of any obligation for borrowed money or of the type described on Part C of the Financial Statements Schedule;
(Avi) lease or agreement under which it is lessee of, or holds or operates, any tangible personal property owned by any other Person for which the annual rental exceeds $50,000;
(vii) lease or agreement under which it is lessor of, or permits any third Person to hold or operate, any of its tangible personal property;
(viii) contract or group of related contracts with the same party (other than standard purchase orders) for the purchase by the Company or sale any Subsidiary of the Company of products or services, under which the undelivered balance of such products and services has a purchase price requiring annual payments in excess of $50,000 for any individual contract 250,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet and which is not terminable by the Company or $100,000 for any group such Subsidiary on notice of related contracts in one (1) year or less to the aggregate, counterparty or counterparties thereto;
(Bix) other contract or group of related contracts contracts, other than Management Agreements, with any Person that provides for annual revenues to the same party continuing over a Company or any Subsidiary of the Company during the trailing twelve-month period of more than six months from ending on the date or dates thereof, which is not entered into of the Latest Balance Sheet in the Ordinary Course excess of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts500,000;
(vix) agreement relating to any Contract containing exclusivitycompleted material business acquisition by the Company or any Subsidiary of the Company since January 1, noncompetition 2015;
(xi) material license or nonsolicitation provisions agreement relating to the use by the Company or that would otherwise prohibit any Subsidiary of the Company of any third-party Intellectual Property or to the use by any Person of any Company Intellectual Property;
(xii) contract which prohibits the Company or any of the Citywide Entities its Subsidiaries from freely engaging in any business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entityworld;
(viixiii) any stock purchase, stock option, restricted stock Management Agreement or restricted stock unit binding letter of intent in respect of a Management Agreement contemplated to be entered into by the Company or stock incentive planone of its Subsidiaries;
(viiixiv) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights franchise or other similar Contract equity investment agreements with any Person, other than the Company or arrangementany Subsidiary of the Company;
(xxv) any Contract agreement associated with a Governmental Entityxxxxxx, derivatives or other similar financial instruments;
(xixvi) any Contract pursuant to which agreement that requires the Company or any of its Subsidiaries to pay any commission, finders’ fee, royalty or similar payment to any Person after the Citywide Entities grants Closing, whether for transactions or makes availableotherwise, or is granted or receivesother than agreements for the licensing of standard, any license or other right requiring an expenditure in excess of $100,000 annually“off-the-shelf” software (and, with respect to any material Intellectual Property those agreements marked with an asterisk in each case clause (a)(xvi) of the Contracts Schedule, which constitute the only agreements required to be so scheduled in respect of projects that is reasonably necessary relate to operate executed Management Agreements, such schedule also sets forth the businesses amounts so payable upon the reaching of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available softwaremilestones set out therein);; or
(xiixvii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (travel agency or performance marketing agreement, including agreements with online travel agencies or other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Businessthird-party intermediaries.
(b) Except as disclosed set forth on Schedule 4.21(b)the Contracts Schedule, with respect to each Material Contract: (i) each such Material Contract is a valid and binding agreement of the Citywide Entities has performed all obligations required to be performed by it prior Company or such Subsidiary and, to the date hereof Company’s knowledge, of the other party or parties thereto, enforceable in connection accordance with its terms, except as the Contracts enforcement thereof 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; (ii) such Material Contract is in full force and effect; (iii) neither the Company nor such Subsidiary is in breach in any material respect of, or commitments default in any material respect under, such Material Contract; (iv) neither the Company nor such Subsidiary has received any notice of, and, to the Company’s knowledge, there are no facts or circumstances that would serve as the basis of, any default under such Material Contract that, with notice or lapse of time, would void such Material Contract or permit termination, material modification or acceleration, as applicable, under such Material Contract; (v) to the Company’s knowledge, no other party is, in any material respect, in breach of or default under such Material Contract or has repudiated any term of such Material Contract; and (vi) the Company or such Subsidiary has not received any notice of, and, to the Company’s knowledge, there are no facts or circumstances that would reasonably serve as the basis for, any termination, cancellation or non-renewal with respect to such Material Contracts.
(c) Except as set forth on Schedule 4.21(a)the Contracts Schedule, and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a)since January 1, except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide2015, there has been no cancellationalleged or outstanding failure of a performance test to which the Company or any of the Subsidiaries of the Company is subject under any Material Contract.
(d) The Company has made available to the Purchaser complete and correct copies of all Material Contracts (including all amendments, breach modifications, supplements and side letters thereto).
(e) With respect to the guarantees given by the Company or anticipated breach by any other party to any Contract or commitment Subsidiary of the Company set forth on Part C of the Financial Statements Schedule 4.21(a(each, a “Guaranteed Loan”), except for neither the Company nor any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation Subsidiary of the transactions contemplated herebyCompany has received any notice of, and, to the Company’s knowledge, there are not facts or circumstances that would serve as the basis of, any default under any Guaranteed Loan. The Company has made available to the Purchaser complete and correct copies of all underlying loan and security agreements related to any Guaranteed Loan (including all amendments, modifications, supplements and side letters thereto).
Appears in 1 contract
Samples: Share Purchase Agreement (Intercontinental Hotels Group PLC /New/)
Contracts and Commitments. (a) Except as set forth in Schedule 4.21(a) lists ------------------------- -------- 2.10, the Bank is not a party to or bound by any of the following Contracts to which any Citywide Entity is a party (whether ---- written or subject oral, express or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”implied):
(i) employment contract or severance arrangement (including without limitation any employment, agency, collective bargaining Contract contract or consulting union agreement or agreement with an independent contractor Contractconsultant) which is not terminable by the Bank on less than sixty (60) days' notice without payment of any amount on account of such termination;
(ii) any written bonus, stock option, deferred compensation or oral Contract relating to any severance pay for any Personprofit-sharing, pension or retirement plan or other employee benefit arrangement;
(iii) any written material lease or oral Contract creating, modifying, memorializing or otherwise related license with respect to any obligation of any Citywide Entity upon a change of controlproperty, real or personal, whether as landlord, tenant, licensor or licensee;
(iv) any Contract to repurchase assets previously sold (contract or to indemnify or otherwise compensate the purchaser in respect of such assets), except commitment for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datecapital expenditures;
(v) any (A) material contract or group commitment made in the ordinary course of related contracts with the same party business for the purchase of materials or sale supplies or for the performance of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other contract or group of related contracts with the same party continuing over a period of more than six months one hundred twenty (120) days' from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractsthis Agreement;
(vi) contract or option to purchase or sell any Contract containing exclusivity, noncompetition real or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere personal property other than in the world or prohibiting the solicitation ordinary course of the employees or contractors of any other entitybusiness;
(vii) contract, agreement or letter with respect to the management or operations of the Bank imposed by any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive planbank regulatory authority having supervisory jurisdiction over the Bank;
(viii) any Contract for capital expenditures agreement, contract or indenture related to the borrowing by the Bank of money other than those entered into in excess the ordinary course of $50,000business;
(ix) guaranty of any partnershipobligation for the borrowing of money, joint ventureexcluding endorsements made for collection, limited liability companyrepurchase or resell agreements, shareholder, investor rights or other similar Contract or arrangementletters of credit and guaranties made in the ordinary course of business;
(x) agreement with or extension of credit to any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any executive officer or director of the Citywide Entities grants Seller or makes availablethe Bank or any other subsidiary of the Seller or holder of more than ten percent (10%) of the issued and outstanding common stock of the Seller, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses Affiliate of such Citywide Entity in person, which is not on substantially the Ordinary Course of Business consistentsame terms (including, without limitation, in the case of Citywide Bankslending transactions, interest rates and collateral) as, and following credit underwriting practices that are not less stringent than, those prevailing at the time for comparable transactions with unrelated parties or which involve more than the normal risk of collectibility or other unfavorable features; or
(xi) contracts, other than the foregoing, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of annual payments aggregating $10,000 or more than $500,000 of any of the Citywide Entities (other than, not made in the case ordinary course of Citywide Banks, deposit agreements: (A) entered into business and not otherwise disclosed in the Ordinary Course of Business on the same terms as those contained this Agreement or in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Businessschedule hereto.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities The Bank has in all material respects performed all material obligations required to be performed by it prior to the date hereof and is not in connection default under, and no event has occurred which, with the Contracts lapse of time or commitments set forth on Schedule 4.21(a)action by a third party could result in default under, and none any material indenture, mortgage, contract, lease or other agreement to which the Bank is a party or by which the Bank is bound or under any provision of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyBank Constituent Documents.
Appears in 1 contract
Samples: Stock Purchase Agreement (Prosperity Bancshares Inc)
Contracts and Commitments. (a) Schedule 4.21(a) lists Except as specifically contemplated by this Agreement and except as set forth on the following "Contracts to which Schedule" or any Citywide Entity other schedule attached hereto, the Company is not a party to or subject bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):any:
(i) any employment, agency, collective bargaining Contract agreement or consulting contract with any labor union or independent contractor Contractany 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 written contract for the employment of any officer, individual employee or oral Contract relating to other person on a full-time or consulting basis or any severance pay agreements (in each case, except for any Personthose which are terminable by the Company at will without liability therefor);
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon a change of controlits assets;
(iv) any Contract agreements with respect to repurchase assets previously sold (the lending or to indemnify or otherwise compensate the purchaser in respect investing of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datefunds;
(v) license or royalty agreements;
(vi) guaranty of any obligation, other than endorsements made for collection;
(Avii) contract lease or group of related contracts with the same party for the purchase or sale of products or services, agreement under which the undelivered balance of such products and services has a purchase price it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or 10,000 annually;
(Bviii) other 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;
(ix) contract which is prohibits it from freely engaging in business anywhere in the world; or
(x) other agreement material to it not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Business.
(b) Except as disclosed on the Contracts Schedule 4.21(b)or any other schedule attached hereto, (i) each of the Citywide Entities has performed all obligations no contract or commitment required to be performed by it prior to the date hereof in connection with disclosed on the Contracts Schedule has been breached or commitments set forth on Schedule 4.21(a), canceled by the other party and none of the Citywide Entities is in receipt Company has no Knowledge of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment contract set forth on the Contracts Schedule, (ii) no customer has indicated in writing or orally to the Company or any Seller that it shall stop or materially decrease the business done with the Company or that it desires to renegotiate its contract or current arrangement with the Company, (iii) the Company has performed all the material obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually and is not in default under or in the aggregate, have a Material Adverse Effect breach of any contract or commitment required to be disclosed on the Citywide Entities or materially adversely affect Contracts Schedule, and (iv) each agreement is legal, valid, binding, enforceable and in full force and effect and will continue as such following the consummation of the transactions contemplated hereby. For purposes of this Section 5.11(b), "Knowledge" shall be deemed to include the actual knowledge of each of the Noncompete Parties.
Appears in 1 contract
Contracts and Commitments. Except as listed and identified in SCHEDULE 4.9 attached hereto or contemplated by this Agreement, Summit is not a party to any written or oral:
(a) Schedule 4.21(a) lists the following Contracts to which contract or commitment with any Citywide Entity is a party employee or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contractconsultant;
(iib) contract or commitment with any written labor union or oral Contract relating to any severance pay for any Personemployee group;
(iiic) any written contract or oral Contract creatingcommitment for the future purchase of, modifyingor payment for, memorializing raw materials, supplies or otherwise related to any obligation of any Citywide Entity upon a change of controlproducts that individually total $10,000 or more;
(ivd) any Contract contract or commitment to repurchase assets previously sold (sell or supply products or to indemnify perform services that individually total $10,000 or otherwise compensate more without the purchaser in respect ability on the part of Summit to increase such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days price or less after to cancel the purchase datecontract or commitment without any liability on the part of Summit;
(v) any (Ae) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other contract or group of related contracts with the same party commitment continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractsthis Agreement;
(vif) any Contract containing exclusivitylease under which it is either lessor or lessee (and other than the assets leased pursuant to leases listed on SCHEDULE 4.9, noncompetition there are no other material assets or nonsolicitation provisions properties necessary or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere utilized in the world or prohibiting the solicitation business and operations of the employees or contractors of any other entitySummit that are not owned by Summit);
(viig) any bonus, pension, profit sharing, retirement, stock purchase, stock optionoption hospitalization, restricted stock insurance, vacation pay or restricted stock unit any similar plan or stock incentive planpractice, including but not limited to any welfare benefit plan as defined in the Employee Retirement Income Security Act of 1974 ("ERISA"), formal or informal, in effect with respect to any of Summit's employees or former employees (collectively, the "Plans");
(viiih) contract or commitment for the borrowing of money or other agreement or arrangement for a line of credit;
(i) contract or commitment for any Contract charitable contribution;
(j) contract or commitment for capital expenditures in excess of $50,00010,000;
(ixk) contract or commitment for limiting or restraining it from engaging in any partnershiplines of business with any person, joint venturefirm, limited liability company, shareholder, investor rights corporation or any other similar Contract or arrangemententity;
(xl) any Contract with a Governmental Entity;contract not made in the ordinary course of business
(xim) any Contract pursuant license agreement; or
(n) representative or sales agency agreement. Except as stated in SCHEDULE 4.9 hereto and for delays, minor failures to meet specifications or other minor defaults which any are normal in the conduct of the Citywide Entities grants or makes availablebusiness between Summit and other parties to the above contracts, or Summit has complied with the provisions thereof, is granted or receivesnot in default thereunder, any license or other right requiring an expenditure in excess of $100,000 annually, with respect and to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any knowledge of the Citywide Entities (Individual Members, all other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material parties to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection above contracts have complied with the Contracts or commitments set forth on Schedule 4.21(a)provisions thereof, are not in default thereunder, and none no event has occurred which but for the passage of time or the Citywide Entities is in receipt giving of any claim of notice would constitute a default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebythereunder.
Appears in 1 contract
Samples: Merger Agreement (Westower Corp)
Contracts and Commitments. Schedule 1.01A contains an accurate and complete list of each contract, agreement or commitment relating to the Assets of the Seller or its Affiliates not otherwise listed in Schedule 1.01D or Schedule 5.05:
(a) Schedule 4.21(a) lists the following Contracts to which any Citywide Entity is the Seller or its Affiliates are a party or subject and which requires total payments to or by which it is bound the Seller of at least Two Hundred Fifty Thousand Dollars (such Contracts required $250,000) annually (other than spot crude contracts, spot product contracts, transportation contracts, and crude supply contracts not fully dedicated to be listed on Schedule 4.21(athe Refinery), the “Material Contracts”):
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(iib) any written to which the Seller or oral Contract relating to any severance pay for any Personits Affiliates are a party which has a remaining term longer than one (1) year, which requires total payments by the Seller of at least Two Hundred Fifty Thousand Dollars ($250,000) during such term and which is not terminable on thirty (30) or fewer days' notice without penalty;
(iiic) to which the Seller or its Affiliates are a party relating to indebtedness for borrowed money, including capital leases, security agreements relating thereto and any written amendment or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of controlwaiver thereof;
(ivd) to provide capital or funds by way of a loan or guaranty of a loan or any Contract other form of guaranty, assurance, funding agreement or other arrangement intended to repurchase assets previously sold (assure the payment or to indemnify or otherwise compensate the purchaser in respect performance of such assets), except for securities sold under any obligation by a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts with the same third party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of Two Hundred Fifty Thousand Dollars ($50,000 for 250,000); and
(e) involving any individual contract rights to throughput, process, refine feedstocks or $100,000 for products at or from the Refinery; (collectively items (a) through (e), other than contracts, agreements or commitments of the Seller or any group Affiliate of related contracts Seller which have expired or have terminated at or prior to the Effective Time in accordance with the procedures set forth in Section 10.01, the "Commitments"). Each Commitment is a legal, valid and binding obligation of the Seller, or its Affiliates enforceable against the Seller or its Affiliates in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Except as specified in Schedule 1.01A, the Seller or its Affiliates are not, nor is any other party thereto, in default under any of the Commitments where such defaults would result, in the aggregate, or (B) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on Effect. Except as specified in Schedule 1.01A since the Citywide Entities date of this Agreement, the Seller or materially adversely affect the consummation its Affiliates have not received written notice of the transactions contemplated hereby, (ii) none cancellation or termination of the Citywide Entities has any present expectation or intention of not fully performing Commitment from any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebythereto.
Appears in 1 contract
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement or as set forth on the attached CONTRACTS SCHEDULE, the attached REAL PROPERTY SCHEDULE, the attached INTELLECTUAL PROPERTY SCHEDULE, the attached EMPLOYEES SCHEDULE or the attached EMPLOYEE BENEFITS SCHEDULE, the Company is not a party to or bound by any written or oral:
(a) Schedule 4.21(apension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan, arrangement or practice, whether formal or informal;
(b) lists collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(c) management agreement, contract for the following Contracts to employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis providing annual cash or other compensation in excess of $50,000 or providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby;
(d) contract or agreement requiring the consent of any party thereto upon a change in control of the Company, containing any provision which would result in a modification of any Citywide Entity is rights or obligations of any party thereunder upon a change in control of the Company or which would provide any party any remedy (including rescission or subject or by liquidated damages) in the event of a change in control of the Company;
(e) contract under which it has advanced or loaned monies to any other Person or otherwise agreed to advance, loan or invest any funds (other than advances to the Company's employees in the ordinary course of business consistent with past practice or amounts less than $50,000 in the aggregate);
(f) agreement or indenture relating to borrowed money or 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 letter of credit arrangements;
(g) guaranty of any obligation for borrowed money or otherwise (other than endorsements made for collection in the ordinary course of business);
(h) lease or agreement under which the Company is bound (such Contracts required to be listed on Schedule 4.21(a)lessee of or holds or operates any personal property owned by any other Person, except for any lease of personal property under which the “Material Contracts”):aggregate annual rental payments do not exceed $25,000;
(i) lease or agreement under which the Company is lessor of or permits any employmentthird party to hold or operate any property, agencyreal or personal, collective bargaining Contract owned or consulting or independent contractor Contractcontrolled by the Company;
(iij) any written nondisclosure or oral Contract relating to any severance pay for any Personconfidentiality agreements;
(iiik) any written or oral Contract creatinglocal service agreements (including cleaning, modifyingguard service, memorializing or otherwise related to any obligation lawn and snow removal) and maintenance agreements (including vehicle and equipment maintenance agreements) involving annual payments in excess of any Citywide Entity upon a change of control$50,000;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (Al) contract or group of related contracts with the same party or group of affiliated parties for the purchase of raw materials, commodities, supplies, products, equipment or sale other personal property or for the receipt of products or services, services under which the undelivered balance of such products and services has a purchase selling price in excess of $50,000 for any individual 50,000;
(m) contract or $100,000 for any group of related contracts with the same party or group of affiliated parties for the sale of raw materials, commodities, supplies, products or other personal property or for the furnishing of services under which the undelivered balance of such products or services due from the Company has a selling price in the aggregate, or excess of $50,000;
(Bn) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on the Company upon 30 days’ ' or less notice without penalty or involves involving more than $50,000 for any individual 50,000;
(o) contract or $100,000 in the aggregate for any group of related contractscontracts expressly requiring the payment of any fee, penalty or liquidated damages by the Company in the event of any failure to perform or late performance of such contract or contracts by the Company;
(vip) any Contract containing exclusivity, noncompetition open purchase orders for the purchase or nonsolicitation provisions sale of equipment or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures services in excess of $50,000;
(ixq) contract relating to the marketing, sale, advertising or promotion of its products;
(r) agreements relating to the ownership of or investments in any partnershipbusiness or enterprise, including investments in joint ventureventures and minority equity investments;
(s) assignment, limited liability companylicense, shareholderindemnification or other agreement with respect to any intangible property (including any Intellectual Property Rights);
(t) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(u) broker, investor rights agent, sales representative, sales or distribution agreement or agreement relating to the export and/or import of any goods or equipment;
(v) power of attorney or other similar Contract agreement or arrangementgrant of agency;
(w) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant other agreement which is material to which any of the Citywide Entities grants its operations or makes available, business prospects or is granted or receives, any license or other right requiring involves an expenditure annual consideration in excess of $100,000 annually50,000, whether or not in the ordinary course of business.
(ii) All of the contracts, agreements and instruments set forth or required to be set forth on the attached CONTRACTS SCHEDULE are, with respect to the Company and, to the knowledge of the Seller and the Company, with respect to any material Intellectual Property third party, valid, binding and enforceable in each case that is reasonably necessary to operate the businesses of such Citywide Entity accordance with their respective terms and shall be in the Ordinary Course of Business consistent, full force and effect without penalty in the case of Citywide Banks, accordance with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any their terms upon consummation of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities transactions contemplated hereby. The Company has performed all material obligations required to be performed by it prior to the date hereof and is not in connection with the Contracts default under or commitments set forth on Schedule 4.21(a), and none in breach of the Citywide Entities is nor in receipt of any claim of default or breach under any Contract contract, agreement or commitment set forth on Schedule 4.21(a)instrument to which the Company is subject; no event has occurred which with the passage of time or the giving of notice or both would result in a default, except for breach or event of noncompliance by the Company under any failures contract, agreement or instrument to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on Company is subject; the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities Company has any no present expectation or intention of not fully performing on a timely basis all such obligations required to be performed by the Company under any contract, agreement or instrument to which the Company is subject; no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other material obligation pursuant modification by the other party thereto or is subject to any Contract penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and neither the Seller nor the Company has any knowledge of any breach or cancellation or anticipated cancellation by the other parties to any contract, agreement, instrument or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other which it is a party. The Company is not a party to any Contract contract, agreement or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach the performance of which would not, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect Effect.
(iii) The Purchasers' special counsel has been supplied with 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 Citywide Entities attached CONTRACTS SCHEDULE, together with all amendments, waivers or materially adversely affect the consummation of the transactions contemplated herebyother changes thereto.
Appears in 1 contract
Samples: Recapitalization Agreement (MPW Industrial Services Group Inc)
Contracts and Commitments. (a) Schedule 4.21(a) lists Except as set forth on the following attached Contracts Schedule, neither the Company nor any of its Subsidiaries is party to which any Citywide Entity is a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):any:
(i) Contract relating to any employment, agency, collective bargaining Contract completed material business acquisition or consulting divestiture by the Company or independent contractor Contractsuch Subsidiary within the last three years;
(ii) collective bargaining agreement or Contract with any written or oral Contract relating to any severance pay for any Personlabor union, other than as listed on the Employment and Labor Matters Schedule;
(iii) any material written bonus, pension, profit sharing, retirement or oral Contract creatingother form of deferred compensation plan in each case, modifyingfor employees located in the United States, memorializing other than as described in Section 3.12 hereof or otherwise related to any obligation of any Citywide Entity upon a change of controlthe disclosure schedule relating thereto;
(iv) any Contract to repurchase assets previously sold (stock purchase, stock option or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datesimilar plan;
(v) Contract relating to any joint venture, partnership or similar arrangement;
(Avi) contract 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 $75,000 per annum;
(vii) Contract or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of the Company’s or any of its Subsidiaries’ assets or any letter of credit issued on behalf of the Company or any of its Subsidiaries;
(viii) guaranty of any obligation for borrowed money;
(ix) 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 $50,000;
(x) Contract 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 $50,000;
(xi) Contract or group of related contracts Contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase selling price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts (other than purchase orders entered into in the aggregate, or ordinary course of business);
(Bxii) other contract Contract or group of related contracts Contracts with the same party continuing over for the sale of products or services under which the undelivered balance of such products or services has a period sales price in excess of more $100,000 (other than six months from the date or dates thereof, which is not sales orders entered into in the Ordinary Course ordinary course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractsbusiness);
(vixiii) material Contract with any Contract containing exclusivity, noncompetition Holder or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entityits Affiliates;
(viixiv) settlement, conciliation or similar Contract with any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures Governmental Body that will involve payment after the date of the Latest Balance Sheet in excess of $50,000;
(ixxv) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangementReal Property Leases;
(xxvi) Contract that by its terms contains exclusivity or non-competition restrictions that restrict the ability of the Company or any Contract with a Governmental Entityof its Subsidiaries to compete in any geographical area or business (other than confidentiality agreements entered into in the ordinary course of business that only prohibit use of the confidential information of the party(ies) thereto);
(xixvii) any Intellectual Property license, other than implied licenses attached to the sale of products or click-wrap or shrink-wrap licenses to software that is generally commercially available at a total cost of less than $50,000; or
(xviii) other Contract pursuant to (or group of related Contracts) the performance of which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure involves consideration in excess of $100,000 annually, with respect to any material Intellectual Property in each case 250,000 that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is cannot entered into in the Ordinary Course of Businessbe terminated without penalty.
(b) Except as disclosed Parent and Merger Sub have been given access to a true and correct copy of all written Contracts and a written summary setting forth the material terms and conditions of all oral Contracts that are referred to on the Contracts Schedule 4.21(b(each, a “Material Contract” and, collectively, the “Material Contracts”), together with all material amendments, waivers or other changes thereto.
(c) As of the date hereof (i) each neither the Company nor any of the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), and none of the Citywide Entities its Subsidiaries is in receipt of any claim of material default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyContract, (ii) none to the Company’s knowledge, the other party to each of the Citywide Entities has any present expectation or intention of Material Contracts is not fully performing any in material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), default thereunder and (iii) to the Knowledge of Citywideeach Material Contract is legal, there has been no cancellationvalid, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a)binding, enforceable, and in full force and effect, except for any cancellationas enforceability may be limited by bankruptcy, breach insolvency, fraudulent conveyance, reorganization, or anticipated breach which would notmoratorium Laws, individually or other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.
(d) No Shareholder Loan Amount is in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation excess of the transactions contemplated herebyamount of consideration that the applicable Shareholder is entitled to receive pursuant to Section 1.04 of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Polyone Corp)
Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth in Schedule 4.21(a) lists 3.10 the following Contracts to which any Citywide Entity Company is not a party to or subject bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):any:
(i) any employment, agency, collective bargaining agreement or Contract with any labor union or consulting any bonus, commissions, pension, profit sharing, retirement or independent contractor Contractany other form of deferred compensation or incentive plan or, other than the Company Option Plan, any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal;
(ii) Contract for the employment of any written officer, individual employee or oral Contract relating to other Person on a full-time, consulting or independent contractor basis or any severance pay for any Personagreements or change-of-control agreements;
(iii) any written Contract relating to Indebtedness or oral Contract creatingto mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon its assets, other than a change of controlPermitted Lien;
(iv) any Contract Contracts with respect to repurchase assets previously sold (the lending or to indemnify or otherwise compensate the purchaser in respect investing of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datefunds;
(v) license or royalty Contracts, or management, consulting, or advisory contracts;
(vi) guaranty of any obligation, other than endorsements made for collection;
(Avii) contract Contract under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments by the Company or under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it;
(viii) Contract or group of related contracts Contracts with the same party for the purchase or sale of supplies, products or services, under other personal property or for the furnishing or receipt of services which the undelivered balance either calls for performance over a period of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or more than one year;
(Bix) other contract Contract or group of related contracts Contracts with the same party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ days or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contractspenalties;
(vix) Contracts relating to the ownership of or investments in any business or enterprise (including, but not limited to, investments in joint ventures and minority equity investments);
(xi) Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)world;
(xii) any Contract relating to Indebtedness the distribution, marketing, advertising or sales of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks)its products and/or services;
(xiii) any Contract the costs of Contracts pursuant to which are Transaction Expenses; andit subcontracts work to third parties;
(xiv) power of attorney;
(xv) Contract relating to the acquisition or sale of its business (or any material portion thereof);
(xvi) Contracts relating to Proprietary Rights except as set forth in Schedule 3.11(b); or
(xvii) other Contract material to the businesses of the Citywide Entitiesit, taken as a whole, which is whether or not entered into in the Ordinary Course of Business.
(b) Except as disclosed on in Schedule 4.21(b3.8(b), Schedule 3.10 or Schedule 3.11(b), (i) each of no Contract or commitment required to be disclosed on Schedule 3.8(b), Schedule 3.10 or Schedule 3.11(b) (each, a “Material Contract” and collectively, the Citywide Entities “Material Contracts”) has been breached or canceled by the other party, and there are no anticipated breaches by any other party to any Material Contract, (ii) the Company has performed all the obligations required to be performed by it prior them under the Material Contracts to the extent required to be so performed as of the date hereof or as of the Closing Date and are not in connection default under or in breach of any Material Contract, and no event or condition has occurred or arisen which with the Contracts passage of time or commitments set forth on Schedule 4.21(a)the giving of notice or both would result in a default or breach thereunder, and none of (iv) the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, Company does not have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Material Contract, (vi) each Material Contract or commitment set forth on Schedule 4.21(a)is legal, valid, binding, enforceable and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect full force and effect and will continue as such following the consummation of the transactions contemplated hereby.
(c) The Company has made available to Buyer a true and correct copy of all written Material Contracts, in each case together with all amendments, waivers or other changes thereto (all of which are disclosed on Schedule 3.10 or Schedule 3.11(b)). Schedule 3.10 or Schedule 3.11(b) contains an accurate and complete description of all material terms of all oral Material Contracts referred to therein.
(d) During the two-year period ending on the date of this Agreement, the Company has not used any name or names under which they have invoiced account debtors, maintained records regarding its assets or otherwise conducted business other than the exact names set forth on Schedule 3.10 or Schedule 3.11(b).
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 4.21(a5.11(a) lists of the following Contracts to which any Citywide Entity is a party Disclosure Schedule (all written or subject oral contracts or by which it is bound (such Contracts agreements required to be listed set forth on Schedule 4.21(a), such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”):), the Company is not a party to any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any employmentbonuses or other remuneration and whether in cash or otherwise), agencyto employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining Contract agreement or consulting any other contract with any labor union, or independent contractor Contractseverance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any written officer, individual employee or oral Contract other Person on a full-time, part-time, consulting, contractor or other basis or relating to any severance pay loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for any Person“at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of controlother Person amounts;
(iv) any Contract agreement or indenture relating to repurchase assets previously sold (borrowed money or to indemnify other Indebtedness or the mortgaging, pledging or otherwise compensate placing a Lien, other than a Permitted Lien, on any asset or group of assets of the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateCompany;
(v) Guaranty;
(vi) lease or agreement under which the Company 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 $150,000;
(Avii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party for or group of affiliated parties the purchase or sale performance of products or services, under which involves consideration in the undelivered balance of such products and services has a purchase price aggregate in excess of $50,000 for any individual contract or $100,000 for any group of related contracts 150,000, other than purchase and sales orders incurred in the aggregate, or (B) other contract or group ordinary course of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000business;
(ix) assignment, license, indemnification or agreement with respect to any partnershipintangible property (including any Intellectual Property Rights) granted or made to the Company, joint ventureor granted or made by the Company to third parties, limited liability companyexcept licenses granted by a third party to the Company of commercially available, shareholderunmodified, investor rights “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other similar Contract consideration for any such software or arrangementgroup of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) any Contract with a Governmental Entitycontract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) any Contract contract pursuant to which any of the Citywide Entities grants or makes available(i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material (ii) Intellectual Property in each case that is reasonably necessary Rights owned by a third party for development tools are used to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)develop Company Software;
(xii) any Contract relating warranty agreement with respect to Indebtedness its services rendered or its products sold or leased, except pursuant to the Company’s standard form of more than $500,000 of any of the Citywide Entities (other than, customer agreement in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks)form delivered to Buyer;
(xiii) agreement under which it has granted any Contract the costs of which are Transaction Expenses; andPerson any registration rights (including demand or piggyback registration rights);
(xiv) any other Contract material to the businesses sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of the Citywide Entities, taken as a whole, more than six (6) months which is not entered into terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the Ordinary Course form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of Businesscustomer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, 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, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as disclosed set forth on Schedule 4.21(b)5.11(b) of the Disclosure Schedule, (i) each of the Citywide Entities Company has performed performed, in all material respects, all obligations required to be performed by it prior to and is not in default under or in breach of nor, as of the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a)hereof, and none of the Citywide Entities is in receipt of any claim of default or breach under any Material Contract or commitment set forth on Schedule 4.21(a), except for any failures instrument to perform, breaches or defaults which would not, individually or in the aggregate, have Company is a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, party; (ii) none no event has occurred which with the passage of time or the Citywide Entities giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has any no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any material obligation pursuant other modification by the other party thereto or is subject to any Contract penalty, right of set-off or commitment set forth on Schedule 4.21(a), other charge by the other party thereto for late performance or delivery; and (iiiv) to as of the Knowledge date hereof the Company has no knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by the other parties to any other Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach Material Contracts the performance of which would not, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the Citywide Entities or materially adversely affect the consummation part of the transactions contemplated herebyCompany.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Penn National Gaming Inc)
Contracts and Commitments. (a) Section 2.16 of the Disclosure Schedule 4.21(a) lists the following Contracts agreements, whether oral or written, to which any Citywide Entity the Company is a party or subject or by and which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):are currently in effect:
(i) any employmentbonus, agencypension, collective bargaining Contract profit sharing, retirement or consulting other form of deferred compensation plan, other than as described in Section 2.21 of the Disclosure Schedule (or independent contractor Contractexcluded by Section 2.21 from inclusion thereunder);
(ii) any written hospitalization insurance or oral Contract relating to any severance pay for any Personother welfare benefit plan or practice, whether formal or informal, other than as described in Section 2.21 of the Disclosure Schedule (or excluded by Section 2.21 from inclusion thereunder);
(iii) any written stock purchase plan, stock option plan or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of controlother equity-based benefit plan;
(iv) contract for the employment of any Contract officer, individual employee or other person on a full-time or consulting basis or relating to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of severance pay for any such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateperson;
(v) confidentiality agreement;
(vi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(Avii) guaranty by the Company, or by any Seller on behalf of the Company, of any obligation for borrowed money or otherwise;
(viii) lease or agreement under which the Company is lessee of, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $1,000, other than as described in Section 2.12 of the Disclosure Schedule;
(ix) lease or agreement under which the Company is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $1,000 other than as described in Section 2.12 of the Disclosure Schedule;
(x) contract or group of related contracts with the same party for the purchase or sale of products or services, services under which the undelivered balance of such products and or services has a purchase price is in excess of $50,000 for any individual contract or $100,000 for any group of related contracts 1,000 (other than purchase orders entered into in the aggregate, or ordinary course of business consistent with past practices);
(Bxi) other 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 $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 (thirty) days’ ' or less notice without penalty or involves and involving more than $50,000 for any individual 1,000;
(xiii) contract or $100,000 in the aggregate for any group of related contractscontracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(vixiv) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of contract which prohibits the Citywide Entities Company from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entityworld;
(viixv) any stock purchase, stock option, restricted stock license agreement or restricted stock unit agreement providing for the payment or stock incentive planreceipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 2.17 of the Disclosure Schedule;
(viiixvi) any Contract contract or commitment for capital expenditures in excess of $50,0005,000;
(ixxvii) agreement for the sale of any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangementcapital asset;
(xxviii) contract with any Contract with a Governmental Entity;
(xi) affiliate which in any Contract pursuant way relates to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices Company (other than non-exclusive licenses to commercially available softwarefor employment on customary terms);; or
(xiixix) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract is either material to the businesses business of the Citywide Entities, taken as a whole, Company or the transactions contemplated hereby or which is was not entered into in the Ordinary Course ordinary course of Businessbusiness consistent with past practices.
(b) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities The Company has performed all material obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth on required to be disclosed in the Disclosure Schedule 4.21(a), under the caption referencing this Section 2.16 and none of the Citywide Entities is not in receipt of any claim of default under any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in be disclosed under such caption; the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities Company has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract contract or commitment set forth on Schedule 4.21(a), required to be disclosed under such caption; and (iii) to the Knowledge Sellers have no knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by any other party to any Contract contract or commitment set forth on Schedule 4.21(a)required to be disclosed under such caption.
(c) Prior to the date of this Agreement, except for any cancellationSellers have made available to Buyer a true and correct copy of each written contract or commitment, breach and a written description of each oral contract or anticipated breach which would notcommitment, individually or referred to under the caption referencing this Section 2.16 in the aggregateDisclosure Schedule, have a Material Adverse Effect on the Citywide Entities together with all amendments, waivers or materially adversely affect the consummation of the transactions contemplated herebyother changes thereto.
Appears in 1 contract
Contracts and Commitments. (ai) The Disclosure Schedule 4.21(a) lists the following Contracts agreements, whether oral or written, to which any Citywide Entity Xxxxxxx is a party or subject by which Xxxxxxx or by its assets are bound: (A) collective bargaining agreement or contract with any labor union; (B) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (C) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; (D) stock purchase or stock option plan; (E) 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; (F) confidentiality agreement with employees and with consultants, vendors, customers or other third parties; (G) contract, agreement or understanding relating to the voting of Xxxxxxx'x capital stock or the election of directors of Xxxxxxx; (H) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of Xxxxxxx; (I) guaranty of any obligation for borrowed money or otherwise; (J) lease or agreement under which it is bound lessee of, or holds or operates any property, real or personal, owned by any other party; (such Contracts K) 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 $10,000 (L) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) 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 penalty and involving more than $10,000; (M) contract which prohibits Xxxxxxx from freely engaging in business anywhere in the world; (N) contract for the distribution of products through or in conjunction with Xxxxxxx (including any distributor, sales and original equipment manufacturer contract); (O) franchise agreement; (P) license agreement or agreement providing for the payment or receipt of royalties or other compensation by Xxxxxxx in connection with the intellectual property rights set forth in the Disclosure Schedule; (Q) contract or commitment for capital expenditures in excess of $10,000, (R) agreement for the sale of any capital asset; (S) contract with any affiliate which in any way relates to Xxxxxxx (other than for employment on customary terms); or (T) other agreement which is either material to the business of Xxxxxxx or was not entered into in the ordinary course of business (other than agreements required to be listed on Schedule 4.21(ain the Disclosure Schedule), the “Material Contracts”):
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;.
(ii) any written The Disclosure Schedule lists the following agreements, whether oral or oral Contract relating written, to any severance pay for any Person;
(iii) any written which Xxxxxxx is a party or oral Contract creating, modifying, memorializing by which Xxxxxxx or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase its assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any are bound: (A) contract or group of related contracts with the same party for the purchase or sale of products or services, services by Xxxxxxx under which the undelivered balance of such products and or services has a purchase price is in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or 10,000; (B) other contract or group of related contracts with the same party continuing over for the sale of products or services by Xxxxxxx under which the undelivered balance of such products or services (including, without limitation, any free upgrades or ongoing services) has a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures sales price in excess of $50,000;
10,000; and (ixC) any partnership, joint venture, limited liability company, shareholder, investor rights sales agreement or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices customer commitment (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement form of Citywide Banks; and (Bpurchase order) evidencing deposit Liabilities which entitles any purchaser to a rebate from or right of Citywide Banks);
(xiii) set-off against Xxxxxxx, to return any Contract product to Xxxxxxx after acceptance thereof or to delay the costs of acceptance thereof, to receive future services, upgrades or enhancements, or which are Transaction Expenses; and
(xiv) varies in any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into in the Ordinary Course of Businessrespect from Xxxxxxx'x standard form agreements for sales.
(biii) Except as disclosed on Schedule 4.21(b), (i) each of the Citywide Entities Xxxxxxx has performed all material obligations required to be performed by it prior to through the date hereof by it in connection with the Contracts contracts or commitments set forth on required to be disclosed in the Disclosure Schedule 4.21(a), and none of the Citywide Entities is in receipt has not been notified of any claim of default under any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or be disclosed in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities Disclosure Schedule; Xxxxxxx has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract contract or commitment set forth on Schedule 4.21(a), required to be disclosed thereunder; and (iii) to the Knowledge Xxxxxxx has no knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by any other party to any Contract contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or required to be disclosed in the aggregateDisclosure Schedule.
(iv) Prior to the date of this Agreement, have Exmark has been provided with a Material Adverse Effect on correct and complete copy of each written contract or commitment referred to in the Citywide Entities Disclosure Schedule, together with all known amendments, waivers or materially adversely affect the consummation of the transactions contemplated herebyother changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 4.21(a) lists 4.15 attached hereto, the following Contracts to which any Citywide Entity Company is not a party to or subject bound by any written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):oral:
(i) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to its current or former directors, officers or employees or any employmentother employee benefit plan, agencyarrangement or practice, collective bargaining Contract whether formal or consulting or independent contractor Contractinformal;
(ii) collective bargaining agreement or any written other contract with any labor union, or oral Contract relating to any severance pay for any Personagreements, with employees at the executive management committee level since December 31, 2001, programs, policies or arrangements;
(iii) any written management agreement or oral Contract creating, modifying, memorializing or otherwise related to any obligation contract for the employment of any Citywide Entity officer, individual employee or other Person on a full-time, part-time, consulting or other basis (A) providing annual cash or other compensation in excess of $250,000, (B) providing for the payment of any cash or other compensation or benefits upon a change the consummation of controlthe transactions contemplated hereby or (C) otherwise restricting its ability to terminate the employment of any employee at anytime for any lawful reason or for no reason without penalty or liability;
(iv) contract or agreement involving any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate Governmental Agency involving more than $200,000 other than in the purchaser in respect ordinary course of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datebusiness;
(v) agreement or indenture relating to borrowed money or 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 letter of credit arrangements;
(vi) guarantee, other than endorsements made for collection in the ordinary course of business consistent with past custom and practice;
(vii) lease or agreement under which the Company is (A) 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 $1,000,000 or (B) lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties for the purchase or sale of products raw materials, commodities, supplies, products, equipment or services, other personal property or services under which the undelivered balance since the Most Recent Audited Balance Sheet Date of such products and services has a purchase selling price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or 1,000,000;
(Bix) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on the Company upon 30 days’ ' or less notice without penalty or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement1,000,000;
(x) any Contract with a Governmental Entitycontract relating to the marketing, advertising or promotion of its products involving more than $1,000,000;
(xi) agreement under which it has granted any Contract pursuant to which Person any of the Citywide Entities grants or makes availableregistration rights (including, or is granted or receiveswithout limitation, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe demand and sound banking practices (other than non-exclusive licenses to commercially available softwarepiggyback registration rights);
(xii) any Contract agreements relating to Indebtedness of more than $500,000 of the ownership of, investments in or loans and advances to any of the Citywide Entities (other thanPerson, including investments in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; joint ventures and (B) evidencing deposit Liabilities of Citywide Banks)minority equity investments;
(xiii) license, royalty, indemnification or other agreement with respect to any Contract intangible property (including any Intellectual Property), including any agreements that prohibit or limit the costs ability of which are Transaction Expenses; andthe Company to use or disclose any Intellectual Property or to engage in any line of business, or to compete with any Person or to carry on its business or any other business anywhere in the world other than in the ordinary course of business;
(xiv) any broker, agent, sales representative, sales or distribution agreement other Contract material to the businesses of the Citywide Entities, taken as a whole, which is not entered into than in the Ordinary Course ordinary course of Businessbusiness;
(xv) power of attorney or other similar agreement or grant of agency;
(xvi) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world, including any nondisclosure or confidentiality agreements; or
(xvii) other agreement which involves a consideration in excess of $1,000,000 annually, other than in the ordinary course of business.
(b) Except The Company has delivered or made available to Vista a correct and complete copy (as disclosed on Schedule 4.21(b)amended to date) of each contract, (i) each of the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments agreement, and instrument set forth on Schedule 4.21(a4.15 (collectively, the "Material Contracts"). With respect to each Material Contract: (i) such Material Contract is legal, valid and binding, enforceable against the Company in accordance with the terms (except to the extent required by Creditors Rights Laws), and none of in full force and effect; (ii) such Material Contract will continue to be legal, valid and binding, enforceable against the Citywide Entities is Company in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(aaccordance with the terms (except to the extent required by Creditors Rights Laws), except for any failures to perform, breaches or defaults which would not, individually or and in the aggregate, have a Material Adverse Effect full force and effect on the Citywide Entities or materially adversely affect identical terms following the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and ; (iii) to the Knowledge of Citywide, there has been Company's knowledge no cancellation, party to such Material Contract is in breach or anticipated default of the terms thereof, and to the Company's knowledge no event has occurred which with notice or lapse of time would constitute a breach by or default, or permit termination, modification, or acceleration, under such Material Contract; and (iv) no party to such Material Contract has repudiated any other provision thereof.
(c) Except as specifically set forth in Schedule 4.15(c), the Company is not a party to any Contract contract, agreement, instrument or commitment set forth on Schedule 4.21(a)understanding that contains a "change in control," "potential change in control," or similar provision, except for any cancellationin each case, breach or anticipated breach which that would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of be triggered by the transactions contemplated herebyhereunder.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Aspect Communications Corp)
Contracts and Commitments. The Company Disclosure Letter sets forth a true, correct and complete list of the following contracts to which the Company or a Subsidiary is a party (including every amendment, modification or supplement to the foregoing): (a) Schedule 4.21(aall contracts or agreements which limit or restrict the Company, any Subsidiary or any officer or, to the Knowledge of the Company, any key employee of the Company or any Subsidiary from engaging in any line of business conducted by the Company or any Subsidiary in any jurisdiction, (b) lists all franchising agreements, (c) any contract or agreement with any material agent used to supplement the following Contracts Company’s transportation network which is not terminable without penalty on sixty calendar days’ or less notice, (d) any joint venture or partnership agreement or other similar agreement, (e) any contract pursuant to which the Company or any Citywide Entity is a party Subsidiary provides for the indemnification or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(ii) any written or oral Contract relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation holding harmless of any Citywide Entity upon a change current or former officer, director or employee of control;
the Company or any Subsidiary, (ivf) any Contract to repurchase assets previously sold (agreements or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts with the same party arrangements for the purchase or sale of products or services, under which any assets (other than in the undelivered balance ordinary course of such products and services has a purchase price business) with an individual value in excess of $50,000 for 150,000 or an aggregate value in excess of $750,000, (g) agreements, contracts or indentures relating to the borrowing of money by the Company or any individual contract Subsidiary, (h) all exchange traded or over-the-counter swap, forward, future, option, cap, floor or collar financial contracts, or any other interest rate or foreign currency protection contract; (i) all licensing agreements in connection with which Company and the Subsidiaries have made or received payments, or are obligated to make or entitled to receive payments, in excess of $100,000 for any group of related 100,000; and (j) other than contracts identified in the aggregate, Company Disclosure Letter pursuant to Section 4.16 or (Ba) through (i) of this Section 4.18, all other contract contracts, agreements or group commitments, including customer contracts, involving payments made by or to the Company or a Subsidiary of related contracts with the same party continuing over a period of $1,000,000 or more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business per year and is either not terminable by it without penalty on 30 sixty calendar days’ or less notice without penalty notice. Except as set forth in an exhibit attached to the SEC Reports or involves more than $50,000 for any individual contract or $100,000 in the aggregate for Company Disclosure Letter, neither the Company nor any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with Subsidiary is a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect party to any material Intellectual Property in each case that agreement, arrangement or commitment which is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, Company and the Subsidiaries taken as a whole. The Company has delivered or made available true, which is not entered into in correct and complete copies of all such agreements, arrangements and commitments to Parent. Neither the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b), (i) each Company nor any of the Citywide Entities has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), and none of the Citywide Entities Subsidiaries is in receipt of any claim of default under any Contract such agreement, arrangement or commitment set forth on Schedule 4.21(a)which has had, except for any failures or could reasonably be expected to performhave, breaches or defaults which would not, individually or in the aggregate, have a Company Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyEffect.
Appears in 1 contract
Samples: Merger Agreement (Overnite Corp)
Contracts and Commitments. (a) Schedule 4.21(a) The Disclosure Schedule, under the caption referencing this Section 4.10(a), lists the following Contracts agreements, whether oral or written, to which any Citywide Entity Seller is a party party, which are currently in effect, and which relate to the operation of the Business or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):
Assets: (i) any employment, agency, collective bargaining Contract agreement or consulting or independent contractor Contract;
contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described under the caption referencing Section 4.15 hereof (or excluded by such Section from inclusion thereunder) in the Disclosure Schedule; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described under the caption referencing Section 4.15 hereof in the Disclosure Schedule (or excluded by such Section from inclusion thereunder); (iv) contract for the employment of any written officer, individual employee or oral Contract other person on a full-time or consulting basis or relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
person; (v) confidentiality agreement; (vi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the Assets; (Avii) guaranty of any obligation for borrowed money or otherwise; (viii) lease or agreement under which it is lessee of, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $5,000; (ix) 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 $5,000; (x) contract or group of related contracts with the same party for the purchase or sale of products or services, services under which the undelivered balance of such products and or services has a purchase price is in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or 25,000; (Bxi) other 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 $25,000; (xii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ ' or less notice without penalty or involves and involving more than $50,000 for any individual 25,000; (xiii) contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities which prohibits Seller from freely engaging in business anywhere in the world or prohibiting world; (xiv) contract for the solicitation distribution of any of the employees products of the Business (including any distributor, sales and original equipment manufacturer contract); (xv) franchise agreement; (xvi) license agreement or contractors agreement providing for the payment or receipt of any royalties or other entity;
compensation by Seller in connection with the intellectual property rights listed under the caption referencing Section 4.11 hereof in the Disclosure Schedule; (viixvii) any stock purchase, stock option, restricted stock contract or restricted stock unit or stock incentive plan;
(viii) any Contract commitment for capital expenditures in excess of $50,000;
25,000; (ixxviii) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of agreement for the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 sale of any of the Citywide Entities capital asset; or (xix) other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract is either material to the businesses of the Citywide Entities, taken as a whole, which is Business or was not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as disclosed on in the Disclosure Schedule 4.21(bunder the caption referencing this Section 4.10(b), (i) each of the Citywide Entities Seller has performed all obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth on required to be disclosed in the Disclosure Schedule 4.21(a), under the caption referencing Section 4.10(a) and none of the Citywide Entities is not in receipt of any claim of default under any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities be disclosed under such caption; Seller has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract contract or commitment set forth on Schedule 4.21(a), required to be disclosed under such caption; and (iii) to the Knowledge Seller has no knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by any other party to any Contract contract or commitment set forth on Schedule 4.21(a)required to be disclosed under such caption.
(c) Prior to the date of this Agreement, except for any cancellationBuyer has been supplied with a true and correct copy of each written contract or commitment, breach and a written description of each oral contract or anticipated breach which would notcommitment, individually or referred to under the caption referencing Section 4.10(a) in the aggregateDisclosure Schedule, have a Material Adverse Effect on the Citywide Entities together with all amendments, waivers or materially adversely affect the consummation of the transactions contemplated herebyother changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.21(a) lists Except as specifically contemplated by this Agreement and except as set forth on the following "Contracts to which Schedule" attached hereto, neither the Company nor any Citywide Entity of its Subsidiaries is currently a party to or subject bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):any:
(i) any employment, agency, collective bargaining Contract agreement or consulting contract with any labor union or independent contractor Contractany 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 written contract for the employment of any officer, individual employee or oral Contract relating to other person on a full-time or consulting basis or any severance pay for any Personagreements providing annual compensation in excess of $50,000, in each case that is not terminable or amendable by the Company at will;
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon a change of controlits assets;
(iv) any Contract agreements with respect to repurchase assets previously sold (the lending or to indemnify or otherwise compensate the purchaser in respect investing of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datefunds;
(v) license or royalty agreements;
(vi) guaranty of any obligation, other than endorsements made for collection;
(Avii) contract lease or group of related contracts with the same party for the purchase or sale of products or services, agreement under which the undelivered balance it is lessor of such products and services has a purchase price in excess or permits any third party to hold or operate any property, real or personal, owned or controlled by it (other than leases of $50,000 for any individual contract or $100,000 for any group of related contracts equipment in the aggregate, or Ordinary Course of Business);
(Bviii) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ days or less notice without penalty penalties or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts50,000;
(viix) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;world; or
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any other agreement not of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case type listed above that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is it whether or not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b)the Contracts Schedule, (i) each of the Citywide Entities has performed all obligations no contract or commitment required to be performed by it prior to the date hereof in connection with disclosed on the Contracts Schedule has been breached or commitments cancelled by the other party and the Company, its Subsidiaries and the Sellers have no Knowledge of any anticipated breach by any other party to any contract required to be set forth on Schedule 4.21(a), and none of the Citywide Entities is in receipt of any claim of default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyContracts Schedule, (ii) none except where not material to the business of the Citywide Entities Company, no customer or supplier has indicated in writing or orally to the Company, any of its Subsidiaries or any Seller that it shall stop or 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 of any of its Subsidiaries, (iii) the Company and each of its Subsidiaries is not in default under or in 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 giving of notice or both would result in a default or breach thereunder, (iv) neither the Company nor any of its Subsidiaries has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment contract required to be set forth on Schedule 4.21(a)the Contracts Schedule, and (iiiv) each agreement required to be set forth on the Contracts Schedule is a valid and binding obligation of the Company and, to the Knowledge of Citywidethe Sellers, there has been no cancellationthe other parties thereto.
(c) The Sellers have provided the Purchaser with a true and correct copy of all written contracts which are required to be disclosed on the Contracts Schedule, breach in each case together with all amendments, waivers or anticipated breach by any other party changes thereto (all of which are disclosed on the Contracts Schedule). The Contracts Schedule contains an accurate and complete description of all material terms of all oral contracts required to any Contract or commitment be set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebythereon.
Appears in 1 contract
Samples: Stock Purchase Agreement (National Equipment Services Inc)
Contracts and Commitments. (a) Except for the Purchased Assets and other matters specifically contemplated by this Agreement, and except as set forth in Schedule 4.21(a) lists 4.11(a), with respect to the following Contracts to which any Citywide Entity Business, the Company is not a party to or subject bound by, and the Purchased Assets are not bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):any:
(i) any employment, agency, collective bargaining agreement or Contract with any labor union or consulting any bonus, commissions, pension, profit sharing, retirement or independent contractor Contractany other form of deferred compensation plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal;
(ii) Contract for the employment of any written Transferred Employees listed on Schedule 7.7(a) on a full-time or oral Contract relating to consulting basis or any notice, severance pay for any Personor change-of-control agreements;
(iii) any written Contract relating to Indebtedness or oral Contract creatingto mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon a change of controlthe Purchased Assets;
(iv) any Contract to repurchase assets previously sold (license or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateroyalty Contract;
(v) guaranty of any obligation, other than endorsements made for collection;
(Avi) contract Contract with any customer listed on Schedule 1.1 or any supplier listed on Schedule 4.23;
(vii) Contract under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $10,000.00 annually or 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;
(viii) Contract or group of related contracts Contracts with the same party for the purchase or sale of supplies, products or services, under other personal property or for the furnishing or receipt of services which the undelivered balance of such products and services has a purchase price in excess of $50,000 either calls for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other contract or group of related contracts with the same party continuing performance over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty one year or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures a sum in excess of $50,00010,000.00;
(ix) Contract with any partnership, joint venture, limited liability company, shareholder, investor rights Person for the purchase or supply of vegetables or berries or any other similar Contract ingredient or arrangementmaterial used in a product of the Business;
(x) Contract for the co-packaging or similar arrangement for any Contract with a Governmental Entityproduct of the Business;
(xi) any Contract pursuant to which any of prohibits the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity Company from freely engaging in the Ordinary Course of Business consistent, anywhere in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)world;
(xii) any Contract relating to Indebtedness of more than $500,000 of any the distribution (including with respect to systems, routes or networks), marketing or sales of the Citywide Entities Company’s products (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks“Distribution Contracts”);
(xiii) any Contract pursuant to which the costs of which are Transaction Expenses; andCompany subcontracts work to third parties;
(xiv) Contract relating to the acquisition or sale of the Business (or any material portion thereof);
(xv) Contract for warehouse management;
(xvi) Contract for movement of freight;
(xvii) “take-or-pay” or “requirements” Contract;
(xviii) any other Contract not already listed under one of the subsections above that involves future payments, performance by the Company of services or delivery by the Company of goods or materials of an aggregate amount or value in excess of $10,000.00 on an annual basis, or that otherwise is material to the businesses Business or prospects of the Citywide EntitiesBusiness, taken as a whole; or
(xix) any amendment, which is not entered into in waiver or modification to any of the Ordinary Course of Businessforegoing.
(b) Except as disclosed on in Schedule 4.21(b)4.11(b) or as would not reasonably be expected to result in a Material Adverse Effect, (i) each to the Company’s Knowledge, no Contract or commitment disclosed on, or required to be disclosed on, Schedule 4.11(a) has been breached, defaulted on, or canceled by the other party, and the Company has no Knowledge of any anticipated breach, default or cancellation by any other party to any Contract set forth or required to be set forth on Schedule 4.11(a), (ii) the Citywide Entities Company has performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a)disclosed on, and none of the Citywide Entities Contracts required to be disclosed on, Schedule 4.11(a) and is not in receipt default under or in breach of any claim such Contract, and no event has occurred which with the passage of time or the giving of notice or both would result in a default under any Contract or commitment set forth on Schedule 4.21(a)breach thereunder, except for any failures to perform, breaches or defaults which would not, individually or in (iii) the aggregate, Company does not have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on on, or any Contract that is required to be set forth on, Schedule 4.21(a4.11(a), and (iiiiv) each Contract with respect to the Knowledge of CitywideBusiness is legal, there has been no cancellationvalid, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a)binding, except for any cancellationexisting, breach or anticipated breach which would not, individually or enforceable and in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect full force and effect and will continue as such following the consummation of the transactions contemplated hereby.
(c) The Company has provided Buyer with a true and correct copy of all written Contracts, or provided Buyer with access to such Contracts, which are required to be disclosed on Schedule 4.11(a), in each case together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Section 2.13(a) of the Company Disclosure Schedule 4.21(acontains a list (indicating the clause of this Section 2.13 pursuant to which disclosure is made) lists of all of the following Contracts written or oral contracts or agreements (including any and all amendments thereto), other than agreements listed in Sections 2.1(b), 2.8(a), 2.9(a), 2.12(a) and (b), 2.15(b), 2.16 or 2.17(c) of the Company Disclosure Schedule and other than purchase orders made in the ordinary course of business, to which which, as of the date hereof, the Company or any Citywide Entity of the Company Subsidiaries is a party or subject or by which it the Company or any of the Company Subsidiaries is bound (such Contracts required to be listed on Schedule 4.21(a)collectively, the “"Material Contracts”):
"): (i) any employmentagreements with any present shareholder, agencyemployee, collective bargaining Contract officer, director or consulting consultant (or independent contractor Contract;
former shareholder, employee, officer, director or consultant to the extent there remain at the date hereof obligations to be performed by the Company or any of the Company Subsidiaries); (ii) any written agreements or oral Contract indentures relating to any severance pay for any Person;
the borrowing of money; (iii) any written indemnification agreements or oral Contract creating, modifying, memorializing or otherwise related to guaranties of any obligation of any Citywide Entity upon a change of control;
for borrowed money or otherwise; (iv) contracts which prohibit the Company or any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate of the purchaser Company Subsidiaries from freely engaging in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after business anywhere in the purchase date;
world; (v) any joint venture or profit-sharing agreement (Aother than with employees); (vi) contract or group of related contracts with the same party for the purchase or sale of products or servicescontracts, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts not entered into in the aggregateordinary course of business on an arm's- length basis, or (B) other contract or group of related contracts with the same party that are continuing over a period of more than six months from the date hereof and are not terminable by the Company or dates thereofthe Company Subsidiary party thereto on 60 days or less notice without penalties or premiums (including contracts to provide advertising allowances or promotional services); (vii) any agreements for the purchase by the Company or any of the Company Subsidiaries of any materials, which is equipment, services, or supplies not entered into in the Ordinary Course ordinary course of Business and is either business on an arm's-length basis, that may not terminable be terminated by it on 30 days’ the Company or less notice the Company Subsidiary party thereto without penalty or involves more upon less than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
three months' notice; (viii) any Contract agreements or commitments for capital expenditures in excess the acquisition, construction or sale of $50,000;
fixed assets owned or to be owned by the Company or any of the Company Subsidiaries that continue for a period of more than six months from the date hereof and may not be terminated without penalty by the Company or the Company Subsidiary party thereto prior to the expiration of such six-month period; (ix) any partnership, joint venture, limited liability company, shareholder, investor rights agreements that provide for the distribution of goods or other similar Contract services that continue for a period of more than six months from the date hereof and may not be terminated without penalty by the Company or arrangement;
the Company Subsidiary party thereto prior to the expiration of such six-month period; (x) any Contract with a Governmental Entity;
agreements or arrangements for the sale of any of the assets, properties, services or rights of the Company or any of the Company Subsidiaries other than in the ordinary course of business on an arms length basis or for the grant of any preferential rights to purchase any of its assets, properties or rights or that require the consent of any third party to the transfer and assignment of any of its assets, properties or rights; (xi) any Contract pursuant agreements with any third party to which develop any of intellectual property, franchise or marketing concepts involving payments by the Citywide Entities grants Company or makes available, or is granted or receives, any license or other right requiring an expenditure the Company Subsidiary party thereto in excess of Cdn. $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
10,000; (xii) any Contract relating to Indebtedness sponsoring agreements involving payments by the Company or the Company Subsidiary party thereto in excess of more than Cdn. $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks10,000; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract commitments for charitable contributions or any other agreements between the costs of which are Transaction ExpensesCompany or any Company Subsidiary and the Xxx Xxxxxx Children's Foundation; and
and (xiv) any other Contract agreements which (A) are material to the businesses Business of the Citywide Entities, Company and the Company Subsidiaries taken as a wholewhole or (B), except as disclosed in Section 2.13(b) of the Company Disclosure Schedule, pursuant to the terms of which is not entered into in the Ordinary Course consent of Businessa third party would be required for the consummation of the transactions contemplated hereby or by the Transaction Agreements.
(b) Except as disclosed on Schedule 4.21(b), (iin Section 2.8(a) each or Section 2.13(b) of the Citywide Entities has performed all obligations required to be performed by it prior to Company Disclosure Schedule, neither the date hereof in connection with the Contracts or commitments set forth on Schedule 4.21(a), and none Company nor any of the Citywide Entities Company Subsidiaries is a party to any contract, agreement or understanding which contains a "change in receipt of control" or similar provision or any claim of default under any Contract other provision which could be triggered by the execution and delivery of, or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyby, (ii) none of this Agreement or the Citywide Entities has any present expectation Transaction Agreements; and the execution and delivery of, or intention of not fully performing any material obligation pursuant to any Contract or commitment set forth on Schedule 4.21(a), and (iii) to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebyby, this Agreement or the Transaction Agreements will not (either alone or upon the occurrence of any additional acts or events) by reason of any such provision result in any payment (whether of severance pay or otherwise) becoming due from the Company or any of the Company Subsidiaries to any person.
(c) On or before the Delivery Date, complete copies of all Material Contracts will be provided to Wendy's or Wendy's solicitors. All Material Contracts have been duly executed and are valid and binding and in full force and effect and, except as set forth in Section 2.13(c) of the Company Disclosure Schedule, none of the Company, any Company Subsidiary or, to the actual knowledge of Seller or the Company, any other party to any Material Contract has breached any provision of, or is in default under, the terms of any Material Contract and no event has occurred which with the lapse of time or the giving of notice or both would constitute a breach or default by any party thereto.
Appears in 1 contract
Samples: Share Purchase Agreement (Wendys International Inc)
Contracts and Commitments. (a) Schedule 4.21(aExcept as disclosed in SCHEDULE 3.13(A) lists of the following Contracts to which any Citywide Entity Company Disclosure Schedules, the Company is not a party or subject or by which it is bound to any (such Contracts required to be listed on Schedule 4.21(a)collectively, the “Material Contracts”"MATERIAL CONTRACTS"):
(i) any employment, agency, collective bargaining Contract agreement or consulting or independent contractor Contractcontract with any labor union;
(ii) any written bonus, pension, profit sharing, retirement, or oral Contract relating to any severance pay for any Personother form of deferred compensation plan;
(iii) any written hospitalization insurance or oral Contract creatingsimilar plan or practice, modifying, memorializing whether formal or otherwise related to any obligation of any Citywide Entity upon a change of controlinformal;
(iv) contract for the employment of any Contract officer, individual employee, or other person on a full-time or consulting basis or relative to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of severance pay for any such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase dateperson;
(v) agreement or indenture relating to the borrowing of money in excess of $10,000 or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(Avi) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection;
(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 an annual rental in excess of $10,000;
(viii) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual 10,000;
(ix) contract or $100,000 for any 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 the aggregate, or excess of $10,000;
(Bx) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ ' or less notice without penalty or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts10,000;
(vixi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of contract which prohibits the Citywide Entities Company from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software)world;
(xii) any Contract contract relating to Indebtedness of more than $500,000 of any the distribution of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks)Company's products;
(xiii) any Contract the costs of which are Transaction Expenses; andfranchise agreement;
(xiv) contract, agreement or understanding with any shareholder who beneficially owns five percent (5%) or more of the Company Common Stock or with any officer, director or employee (other Contract than for employment on customary terms);
(xv) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the proprietary rights as disclosed on SCHEDULE 3.14 of the Company Disclosure Schedules; or
(xvi) other agreement material to the businesses of the Citywide Entities, taken as a whole, which is Company's business or not entered into in the Ordinary Course ordinary course of Businessbusiness.
(b) Except as specifically disclosed on Schedule 4.21(b)SCHEDULE 3.13(B) of the Company Disclosure Schedules, (i) each no contract or commitment required to be disclosed under such caption has been breached or canceled by the other party; (ii) since the date of the Citywide Entities balance sheet included in the Company's Interim Financial Statements, no customer or supplier has indicated that it will stop or decrease the rate of business done with the Company, except for changes in the ordinary course of the Company's businesses; (iii) the Company has performed all obligations required to be performed by it prior to the date hereof them in connection with the Contracts contracts or commitments set forth on Schedule 4.21(a), required to be disclosed under such caption and none of the Citywide Entities is are not in receipt of any claim of default under any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in be disclosed under such caption; (iv) the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated hereby, (ii) none of the Citywide Entities Company has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract contract or commitment or commitment set forth on Schedule 4.21(a), under such caption; and (iiiv) to the Knowledge Company has no any knowledge of Citywide, there has been no cancellation, any breach or anticipated breach by any other party to any Contract contract or commitment set forth under such caption.
(c) Prior to the date of this Agreement, Parent has been supplied with a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, disclosed on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation SCHEDULE 3.13 of the transactions contemplated herebyCompany Disclosure Schedules, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Samples: Merger Agreement (Vitrix Inc /Nv/)
Contracts and Commitments. (a) Except as specifically contemplated by ------------------------- this Agreement and except as set forth on the Contracts Schedule 4.21(a) lists attached ------------------ hereto, neither of the following Contracts to which Companies nor any Citywide Entity of their Subsidiaries is a party to or subject bound by, whether written or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)oral, the “Material Contracts”):any:
(i) any employment, agency, collective bargaining Contract agreement or consulting contract with any labor union or independent contractor Contract;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, in all such cases, except as otherwise set forth on the Benefits -------- Plan Schedule; -------------
(ii) any written contract for the employment of any officer, individual employee or oral Contract relating to other person on a full-time or consulting basis or any severance pay for any Personagreements;
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon a change of controlits assets;
(iv) any Contract agreements with respect to repurchase assets previously sold (the lending or to indemnify or otherwise compensate the purchaser in respect investing of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datefunds;
(v) license or royalty agreements;
(vi) guaranty of any obligation, other than endorsements made for collection;
(Avii) 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;
(viii) 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 (other than (x) as set forth on the Real Property ------------- Schedule, (y) leases of equipment in the Ordinary Course of Business and -------- (z) leases with aggregate annual rent payments of less than $100,000);
(ix) contract or group of related contracts with the same party for the (other than purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other contract or group of related contracts with orders)with the same party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ days or less notice without penalty penalties or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts100,000;
(vix) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entityworld;
(xi) settlement conciliation or similar agreement imposing any Contract pursuant to which prospective obligations (financial or otherwise) upon the Companies or any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);their Subsidiaries; or
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as or purchase order with a whole, which is not entered into in the Ordinary Course of Business"Big 3" automaker.
(b) Except as disclosed on Schedule 4.21(b)the Contracts Schedule, (i) no contract ------------------ or commitment required to be disclosed on the Contracts Schedule has, to the ------------------ Knowledge of the Sellers and the Companies, been breached or canceled by the other party and the Companies, their Subsidiaries and the Sellers have no Knowledge of any anticipated breach by any other party to any contract required to be set forth on the Contracts Schedule, (ii) no customer or supplier has ------------------ indicated in writing or, to the Knowledge of the Companies and the Sellers, orally to the Companies, any of their Subsidiaries or any Seller that it shall stop or materially decrease the rate of business done with the Companies or any of their Subsidiaries or that it desires to renegotiate its contract or current arrangement with the Companies or any of their Subsidiaries, (iii) the Companies and each of the Citywide Entities their Subsidiaries has performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth required to be disclosed on the Contracts Schedule 4.21(a), and none of the Citywide Entities is not in receipt of any claim of default under or in breach of ------------------ any Contract contract or commitment set forth on Schedule 4.21(a), except for any failures required to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect be disclosed on the Citywide Entities Contracts Schedule, ------------------ and no event has occurred which with the passage of time or materially adversely affect the consummation giving of notice or both would result in a default or breach thereunder and (iv) neither the transactions contemplated hereby, (ii) none Companies nor any of the Citywide Entities their Subsidiaries has any present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment contract required to be set forth on Schedule 4.21(a), and the Contracts Schedule. ------------------
(iiic) The Sellers have made available to the Knowledge Purchasers true and correct copies of Citywideall written contracts which are required to be disclosed on the Contracts Schedule, there has been no cancellationin each case together with all amendments, breach waivers or anticipated breach by any ------------------ other party changes thereto (all of which are disclosed on the Contracts Schedule). ------------------ The Contracts Schedule contains an accurate and complete description of all ------------------ material terms of all oral contracts required to any Contract or commitment be set forth on Schedule 4.21(a), except for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebythereon.
Appears in 1 contract
Samples: Purchase Agreement (National Equipment Services Inc)
Contracts and Commitments. (a) Schedule 4.21(a) lists Except as specifically contemplated by this Agreement and except as set forth on the following "Contracts to which any Citywide Entity is a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a)Schedule" attached hereto, the “Material Contracts”):Company is not a ------------------ party to or bound by, whether written or oral, any:
(i) any employment, agency, collective bargaining Contract agreement or consulting contract with any labor union or independent contractor Contractany 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 written contract for the employment of any officer, individual employee or oral Contract relating to other person on a full-time or consulting basis or any severance pay for any Personagreements;
(iii) any written agreement or oral Contract creatingindenture relating to the borrowing of money or to mortgaging, modifying, memorializing pledging or otherwise related to placing a Lien on any obligation of any Citywide Entity upon a change of controlits assets;
(iv) any Contract agreements with respect to repurchase assets previously sold (the lending or to indemnify or otherwise compensate the purchaser in respect investing of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase datefunds;
(v) license or royalty agreements;
(vi) guaranty of any obligation, other than endorsements made for collection;
(Avii) contract lease or group of related contracts with the same party for the purchase or sale of products or services, agreement under which the undelivered balance of such products and services has a purchase price it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $50,000 for 10,000 annually;
(viii) lease or agreement under which it is lessor of or permits any individual contract third party to hold or $100,000 for operate any group property, real or personal, owned or controlled by it (other than leases of related contracts equipment in the aggregate, or Ordinary Course of Business);
(Bix) other 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, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ days or less notice without penalty penalties or involves involving more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts10,000;
(vix) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities contract which prohibits it from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;world; or
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessary to operate the businesses of such Citywide Entity in the Ordinary Course of Business consistent, in the case of Citywide Banks, with safe and sound banking practices (other than non-exclusive licenses to commercially available software);
(xii) any Contract relating to Indebtedness of more than $500,000 of any of the Citywide Entities (other than, in the case of Citywide Banks, deposit agreements: (A) entered into in the Ordinary Course of Business on the same terms as those contained in the standard deposit agreement of Citywide Banks; and (B) evidencing deposit Liabilities of Citywide Banks);
(xiii) any Contract the costs of which are Transaction Expenses; and
(xiv) any other Contract material to the businesses of the Citywide Entities, taken as a whole, which is it whether or not entered into in the Ordinary Course of Business.
(b) Except as disclosed on Schedule 4.21(b)the Contracts Schedule, (i) each no contract ------------------ or commitment required to be disclosed on the Contracts Schedule has been ------------------ breached or cancelled by the other party and the Sellers have no knowledge of any anticipated breach by any other party to any contract required to be set forth on the Citywide Entities Contracts Schedule, (ii) no customer or supplier has indicated in ------------------ writing or orally to the Company or any Seller that it shall stop or decrease the rate of business done with the Company or that it desires to renegotiate its contract or current arrangement with the Company, (iii) the Company has performed all the obligations required to be performed by it prior to the date hereof in connection with the Contracts contracts or commitments set forth required to be disclosed on the Contracts Schedule 4.21(a)------------------ and is not in default under or in breach of any contract or commitment required to be disclosed on the Contracts Schedule, and none no event has occurred which with ------------------ the passage of time or the Citywide Entities is giving of notice or both would result in receipt of any claim of a default under any Contract or commitment set forth on Schedule 4.21(a), except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect the consummation of the transactions contemplated herebybreach thereunder, (iiiv) none of the Citywide Entities Company has any no present expectation or intention of not fully performing any material obligation pursuant to any Contract or commitment contract required to be set forth on Schedule 4.21(a)the Contracts Schedule, and (iiivi) each agreement required to the Knowledge of Citywide, there has been no cancellation, breach or anticipated breach by any other party to any Contract or commitment be set ------------------ forth on the Contracts Schedule 4.21(a)is legal, except for any cancellationvalid, breach or anticipated breach which would notbinding, individually or enforceable and in the aggregate, have a Material Adverse Effect on the Citywide Entities or materially adversely affect ------------------ full force and effect and will continue as such following the consummation of the transactions contemplated hereby.
(c) The Sellers have 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 Contracts Schedule). The ------------------ Contracts Schedule contains an accurate and complete description of all material ------------------ terms of all oral contracts required to be set forth thereon.
Appears in 1 contract
Samples: Stock Purchase Agreement (National Equipment Services Inc)
