Parent Material Contracts. (a) Section 5.16(a) of Parent Disclosure Schedule contains a complete list, as of the date of this Agreement, of the following types of contracts and agreements, whether written or oral, including all amendments, supplements and modifications in effect as of the date of this Agreement, to which Parent or any of its Subsidiaries is a party (such contracts and agreements, the “Parent Material Contracts”): (i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) with respect to Parent or any of its Subsidiaries that was required to be filed with the SEC with Parent’s Annual Report on Form 10-K for the year ended December 31, 2015 or any Parent SEC Reports filed after the date of filing of such Form 10-K until the date hereof; provided that any such contract that was filed by Parent with the SEC shall not be required to be set forth on Section 5.16(a) of Parent Disclosure Schedule; (ii) any contract (other than any purchase orders) for the purchase of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments by Parent or any of its Subsidiaries of $20,000,000 or more, or (B) which involved consideration or payments by Parent or any of its Subsidiaries in excess of $20,000,000 in the aggregate during the calendar year ended December 31, 2015, or (C) which is expected to involve consideration or payments by Parent or any of its Subsidiaries in excess of $20,000,000 in the aggregate during the calendar year ending December 31, 2016; (iii) any contract (other than any purchase orders) for the furnishing of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments to Parent or any of its Subsidiaries of $40,000,000 or more, (B) which involved consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 in the aggregate during the calendar year ended December 31, 2015, or (C) which is expected to involve consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 in the aggregate during the calendar year ending December 31, 2016; (iv) all contracts concerning the establishment, management or operation of a joint venture, partnership, limited liability company (other than formation agreements related to one of Parent’s wholly-owned Subsidiaries) or business alliance with any third party; (v) (A) all contracts relating to Indebtedness of Parent or any of its Subsidiaries for borrowed money and (B) all other contracts relating to other Indebtedness of Parent or any of its Subsidiaries in excess of $5,000,000, in each case of (A) and (B), other than intercompany Indebtedness; (vi) all contracts containing any material non-compete or exclusivity provision or any similarly restrictive provision with respect to any material line of business, Person or geographic area with respect to Parent or any of its Subsidiaries; (vii) all Parent IP Agreements that are material to the business of Parent or any of its Subsidiaries; (viii) all other contracts not specified in sub-clause (v) that contain obligations of Parent or its Subsidiaries secured by an Encumbrance (other than a Permitted Encumbrance) on the assets of Parent or any of its Subsidiaries, and interest rate or currency hedging agreements, in each case in connection with which the aggregate actual or contingent obligations of Parent and its Subsidiaries under such agreement are greater than $5,000,000; (ix) all material contracts, agreements and Leases concerning the use, occupancy, management or operation of any Parent Real Property (including all contracts, agreements and Leases listed or otherwise set forth in Section 5.12(b) of Parent Disclosure Schedule); (x) all material management contracts and contracts with consultants requiring payments in excess of $10,000,000, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of Parent or any of its Subsidiaries or income or revenues related to any product of Parent or any of its Subsidiaries that require or would reasonably be expected to result in payments of more than $10,000,000 in the aggregate; (xi) each contract pursuant to which Parent or any of its Subsidiaries is bound that includes a continuing indemnification, “earn out” or other contingent payment obligation, in each case, that could result in payments in excess of $5,000,000 other than ordinary course agreements with customers or suppliers; (xii) except as set forth on Section 5.10(a) of the Parent Disclosure Schedule, each contract between or among Parent or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than Parent or any of its Subsidiaries), on the other hand, that involves payments of more than $2,000,000 in any one year; (xiii) other than as set forth in any customer’s standard purchase order terms and conditions, any contract that grants or conveys rights of refusal, or contains “most favored nation”, “most favored customer” or similar pricing provisions, or that obligates Parent or any of its Subsidiaries to conduct any material portion of Parent’s or any of its Subsidiaries’ business on an exclusive or preferential basis with any third party; and (xiv) any contract that contains “take or pay” or similar provisions. (b) Except as would not have a Parent Material Adverse Effect, (i) each Parent Material Contract is a legal, valid and binding obligation of Parent or its Subsidiaries party thereto and, to the knowledge of Parent, the other parties thereto, enforceable against Parent or such Subsidiaries and, to the knowledge of Parent, the other parties thereto in accordance with its terms, (ii) neither Parent nor any of its Subsidiaries nor, to the knowledge of Parent, any other party thereto, is in breach or violation of, or default under, any Parent Material Contract and no event has occurred or not occurred through Parent’s or any of its Subsidiaries’ action or inaction or, to the knowledge of Parent, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Parent Material Contract and (iii) Parent and its Subsidiaries have not received any written claim or written notice of default, termination (other than as a result of expiration in accordance with its terms) or cancellation under any such Parent Material Contract. Parent has furnished or made available to the Company correct and complete copies of all Parent Material Contracts, including any amendments, waivers or changes thereto that are currently in effect.
Appears in 1 contract
Samples: Merger Agreement (Metaldyne Performance Group Inc.)
Parent Material Contracts. (a) Section 5.16(a5.15(a) of the Parent Disclosure Schedule contains a complete list, as of the date of this Agreement, Letter lists each of the following types of written contracts and agreements, whether written leases to Parent or oral, including all amendments, supplements any of its Subsidiaries of Parent Leased Real Property (such contracts and modifications agreements being “Parent Material Contracts”) that is in effect as of the date of this Agreement, to which Parent or any of its Subsidiaries is a party (such contracts and agreements, the “Parent Material Contracts”)::
(i) any “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act) with respect to Parent or any of its Subsidiaries that was required to be filed with the SEC with Parent’s Annual Report on Form 10-K for the year ended December 31, 2015 or any Parent SEC Reports filed after the date of filing of such Form 10-K until the date hereof; provided that any such contract that was filed by Parent with the SEC shall not be required to be set forth on Section 5.16(a) of Parent Disclosure Schedule;
(ii) any contract (other than any purchase orders) contracts for the purchase of materials, supplies, goods, products or for the receipt of services, equipment the performance of which will extend over a period of one (1) year or other assets (A) providing for annual payments by Parent or any of its Subsidiaries of $20,000,000 or more, or (B) more and which involved consideration or payments by Parent or any of its Subsidiaries in excess of $20,000,000 in the aggregate during the calendar year ended December 31, 2015, or (C) which is expected to involve consideration or payments by Parent or any of its Subsidiaries in excess of $20,000,000 in the aggregate during the calendar year ending December 31, 2016;
(iii) any contract (other than any purchase orders) for the furnishing of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments to Parent or any of its Subsidiaries of $40,000,000 or more, (B) which involved consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 2,000,000 in the aggregate during the calendar year ended December 31, 20152014;
(ii) contracts for the furnishing of products or services by Parent or any of its Subsidiaries, the performance of which will extend over a period of one (1) year or (C) more and which is expected to involve consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 2,000,000 in the aggregate during the calendar year ending ended December 31, 20162014;
(iii) contracts concerning the establishment or operation of a partnership, joint venture or limited liability company;
(iv) all material contracts concerning the establishment, management or operation of under which there has been imposed a joint venture, partnership, limited liability company (other than formation agreements related to one of Parent’s wholly-owned Subsidiaries) or business alliance with any third party;
(v) (A) all contracts relating to Indebtedness of Parent or security interest on any of its Subsidiaries for borrowed money and (B) all other contracts relating to other Indebtedness of Parent the assets, tangible or any of its Subsidiaries in excess of $5,000,000intangible, in each case of (A) and (B), other than intercompany Indebtedness;
(vi) all contracts containing any material non-compete or exclusivity provision or any similarly restrictive provision with respect to any material line of business, Person or geographic area with respect to Parent or any of its Subsidiaries;
(vii) all Parent IP Agreements that are material to the business of Parent or any of its Subsidiaries;
(viii) all other contracts not specified in sub-clause (v) material contracts (i) that contain obligations of Parent or its Subsidiaries secured by an Encumbrance (other than a Permitted Encumbrance) on the assets of Parent or any of its Subsidiaries, and interest rate or currency hedging agreements, in each case in connection with which the aggregate actual or contingent obligations of Parent and its Subsidiaries under such agreement are greater than $5,000,000;
(ix) all material contracts, agreements and Leases concerning the use, occupancy, management or operation of any Parent Real Property (including all contracts, agreements and Leases listed or otherwise set forth in Section 5.12(b) of Parent Disclosure Schedule);
(x) all material management contracts and contracts with consultants requiring payments in excess of $10,000,000, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of grant Parent or any of its Subsidiaries a license to, option to, or income right to use or revenues related exploit (including by means of a covenant not to sxx) Intellectual Property owned or controlled by any product other Person or (ii) under which Parent or any of its Subsidiaries grants a license to, option to, or right to use or exploit (including by means of a covenant not to sxx) any Intellectual Property; in each case, excluding off-the-shelf, commercially available and “shrink-wrap” software licenses;
(vi) the lease agreements of Parent or any of its Subsidiaries that require or would reasonably be expected pertain to result in payments each parcel of more than $10,000,000 in the aggregatematerial Parent Leased Real Property;
(xivii) each contract contracts containing (A) a covenant materially restricting the ability of Parent or any of its Subsidiaries to engage in any line of business in any geographic area or to compete with any Person, to market any product or to solicit customers; (B) a provision granting the other party “most favored nation” status or equivalent preferential pricing terms; or (C) a provision granting the other party exclusivity or similar rights; and
(viii) indentures, credit agreements, loan agreements and similar instruments pursuant to which Parent or any of its Subsidiaries is bound that includes a continuing indemnification, “earn out” has or will incur or assume any indebtedness or has or will guarantee or otherwise become liable for any indebtedness of any other contingent payment obligation, in each case, that could result in payments Person for borrowed money in excess of $5,000,000 1,000,000, other than ordinary course any indentures, credit agreements, loan agreements with customers or suppliers;
(xii) except as set forth on Section 5.10(a) of the Parent Disclosure Schedule, each contract similar instruments between or among any of Parent or and any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than Parent or any of its Subsidiaries), on the other hand, that involves payments of more than $2,000,000 in any one year;
(xiii) other than as set forth in any customer’s standard purchase order terms and conditions, any contract that grants or conveys rights of refusal, or contains “most favored nation”, “most favored customer” or similar pricing provisions, or that obligates Parent or any of its Subsidiaries to conduct any material portion of Parent’s or any of its Subsidiaries’ business on an exclusive or preferential basis with any third party; and
(xiv) any contract that contains “take or pay” or similar provisions.
(b) Except as would not have a Parent Material Adverse Effecthas made available to TDCC true, (i) complete and correct copies of each Parent Material Contract in effect on the date of this Agreement. Each Parent Material Contract is a legal, valid and binding obligation of on Parent or its Subsidiaries party thereto Subsidiaries, as applicable and, to the knowledge of Parent’s Knowledge, the other parties counterparty thereto, enforceable against Parent or such Subsidiaries andand is in full force and effect, subject to the knowledge effect of Parentany applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws relating to or affecting creditors’ rights generally and subject to the other parties thereto effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity), except insofar as it has expired in accordance with its terms, (ii) neither terms after the date hereof. Neither Parent nor any of its Subsidiaries nor, to the knowledge of Parent, any other party thereto, is in material breach or violation of, or material default under, any Parent Material Contract and no event has occurred or not occurred through Parent’s or any of its Subsidiaries’ action or inaction or, to the knowledge of Parent, the action or inaction of any third which it is a party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Parent Material Contract and (iii) Parent and its Subsidiaries have not received any written claim or written notice of default, termination (other than as a result of expiration in accordance with its terms) or cancellation under any such Parent Material Contract. Parent has furnished or made available to the Company correct and complete copies of all Parent Material Contracts, including any amendments, waivers or changes thereto that are currently in effect.
Appears in 1 contract
Samples: Merger Agreement (Olin Corp)
Parent Material Contracts. (a) Section 5.16(a) 3.20 of the Parent Disclosure Schedule contains sets forth a complete list, as list of the date of this Agreement, of the following types of contracts and agreements, whether written or oral, including all amendments, supplements and modifications in effect as of the date of this Agreement, each Contract to which Parent or any of its Subsidiaries is a party (such contracts and agreementsas of the date of this Agreement or by which Parent, any of its Subsidiaries or any of its respective properties or assets is bound as of the “Parent Material Contracts”):date of this Agreement, which:
(i) any is a “material contract” (as such term is defined in within the meaning of Item 601(b)(10) of Regulation S-K under promulgated by the Securities ActSEC;
(ii) with respect to contains covenants of Parent or any of its Subsidiaries that was required not to be filed compete or engage in any line of business or compete with the SEC with Parent’s Annual Report on Form 10-K for the year ended December 31, 2015 or any Parent SEC Reports filed after the date of filing of such Form 10-K until the date hereof; provided that Person in any such contract that was filed by Parent with the SEC shall not be required to be set forth on Section 5.16(a) of Parent Disclosure Schedulegeographic area;
(iiiii) any contract (other than any purchase orders) for the purchase of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments by pursuant to which Parent or any of its Subsidiaries has entered into a partnership or joint venture with any other Person (other than Parent or any of $20,000,000 its Subsidiaries);
(iv) relates to or more, evidences indebtedness for borrowed money or (B) which involved consideration or payments any guarantee of indebtedness for borrowed money by Parent or any of its Subsidiaries in excess of $20,000,000 1,000,000;
(v) evidences any guarantee of obligations of any Person other than a wholly owned Subsidiary of Parent in excess of $1,000,000;
(vi) relates to the spinoff of Parent from LRAD Corporation in September, 2010;
(vii) constitutes a Parent IPR Agreement;
(viii) provides for aggregate payments by or to it in excess of $2,000,000 in any 12 month period other than any Contracts that were entered into in the aggregate during the calendar year ended December 31ordinary course of business;
(ix) contains provisions (a) restricting Parent or its Subsidiaries from freely setting prices for its products, 2015services or technologies (including “most favored nations” terms and conditions (including with respect to pricing), (b) granting any exclusive rights, rights of refusal, rights of first negotiation or similar rights to any Person, or (Cc) which is expected that limits or purports to involve consideration or payments by limit in any material respects the ability of Parent or any of its Subsidiaries Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or businesses, in excess of $20,000,000 each case, other than any Contracts that were entered into in the aggregate during the calendar year ending December 31, 2016ordinary course of business;
(iiix) any contract (other than any purchase orders) for the furnishing of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments to Parent or any of its Subsidiaries of $40,000,000 or more, (B) which involved consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 in the aggregate during the calendar year ended December 31, 2015, or (C) which is expected to involve consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 in the aggregate during the calendar year ending December 31, 2016;
(iv) all contracts concerning the establishment, management or operation of a joint venture, partnership, limited liability company (other than formation agreements related to one of Parent’s wholly-owned Subsidiaries) or business alliance with any third party;
(v) (A) all contracts relating to Indebtedness includes indemnification obligations of Parent or any of its Subsidiaries for borrowed money and (B) all other contracts relating to other Indebtedness of Parent or any of its Subsidiaries in excess with a liability of $5,000,000, in each case of (A) and (B), 500,000 or more other than intercompany Indebtedness;any Contracts that were entered into in the ordinary course of business; or
(vixi) all contracts containing any material non-compete or exclusivity provision or any similarly restrictive provision with respect to any material line of business, Person or geographic area with respect to Parent or any of its Subsidiaries;
(vii) all Parent IP Agreements that are material to the business of Parent or any of its Subsidiaries;
(viii) all other contracts not specified in sub-clause (v) that contain obligations of Parent or its Subsidiaries secured by an Encumbrance (other than a Permitted Encumbrance) on the assets of Parent or any of its Subsidiaries, and interest rate or currency hedging agreements, in each case in connection with which the aggregate actual or contingent obligations of Parent and its Subsidiaries under such agreement are greater than $5,000,000;
(ix) all material contracts, agreements and Leases concerning the use, occupancy, management or operation of any Parent Real Property (including all contracts, agreements and Leases listed or otherwise set forth in Section 5.12(b) of Parent Disclosure Schedule);
(x) all material management contracts and contracts with consultants requiring payments in excess of $10,000,000, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of Parent or any of its Subsidiaries or income or revenues related to any product of Parent or any of its Subsidiaries that require or would reasonably be expected to result in payments prohibit, impede or materially delay the consummation of more than $10,000,000 in the aggregate;
(xi) each contract pursuant to which Parent Merger or any of its Subsidiaries is bound that includes a continuing indemnification, “earn out” or other contingent payment obligation, in each case, that could result in payments in excess of $5,000,000 other than ordinary course agreements with customers or suppliers;
the transactions contemplated by this Agreement (xii) except as including any Qualified Offering). Each such Contract set forth on Section 5.10(a) 3.20 of the Parent Disclosure Schedule, Schedule is a “Parent Material Contract.” Parent has provided VTBH with a true and correct copy of each contract between or among Parent or any of its Subsidiaries, on the one handMaterial Contract.
(b) Each Parent Material Contract is (assuming due power and authority of, and any of their respective Affiliates (due execution and delivery by the parties thereto other than Parent or any of its Subsidiaries), on the other hand, that involves payments of more than $2,000,000 in any one year;
(xiii) other than as set forth in any customer’s standard purchase order terms and conditions, any contract that grants or conveys rights of refusal, or contains “most favored nation”, “most favored customer” or similar pricing provisions, or that obligates Parent or any of its Subsidiaries to conduct any material portion of Parent’s or any of its Subsidiaries’ business on an exclusive or preferential basis with any third party; and
(xiv) any contract that contains “take or pay” or similar provisions.
(b) Except as would not have a Parent Material Adverse Effect, (i) each Parent Material Contract is a legal, valid and binding obligation of Parent or its Subsidiaries party thereto andthereto, subject to the knowledge of ParentBankruptcy and Equity Exception, except for any failures to be valid and binding which would not, individually or in the other parties theretoaggregate, enforceable against reasonably be expected to have a Parent or such Subsidiaries and, to the knowledge of Parent, the other parties thereto in accordance with its terms, (ii) neither Material Adverse Effect. Neither Parent nor any of its Subsidiaries nor, to the knowledge Knowledge of Parent, any other party thereto, is in breach or violation of, or default under, to any Parent Material Contract and is in breach of or in default under any Parent Material Contract, and, to the Knowledge of Parent, no event has occurred or not occurred through Parent’s or any of its Subsidiaries’ action or inaction orthat, to with the knowledge of Parent, the action or inaction of any third party, that with notice or lapse of time or both the giving of notice or both, would constitute a breach or violation ofdefault thereunder by any party thereto, or default under, and neither Parent nor any Parent Material Contract and (iii) Parent and of its Subsidiaries have not has received any written claim of any such breach or written notice of default, termination (other than as except for such breaches and defaults which would not, individually or in the aggregate, reasonably be expected to have a result of expiration in accordance with its terms) or cancellation under any such Parent Material Contract. Parent has furnished or made available to the Company correct and complete copies of all Parent Material Contracts, including any amendments, waivers or changes thereto that are currently in effectAdverse Effect.
Appears in 1 contract
Parent Material Contracts. (a) Section 5.16(a4.17(a) of the Parent Disclosure Schedule Letter contains a complete and correct list, as of the date of this Agreementhereof, of each Contract (other than, for the following types avoidance of contracts and agreementsdoubt, Contracts disclosed in Parent SEC Documents) described in this Section 4.17(a) under which Parent or any Parent Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether written contingent or oral, including all amendments, supplements and modifications in effect as of the date of this Agreement, otherwise) or to which Parent or any Parent Subsidiary or any of its Subsidiaries their respective properties or assets is a party subject, in each case as of the date hereof (such contracts and agreementsall Contracts of the type described in this Section 4.17(a), whether or not set forth on Section 4.17 of the Parent Disclosure Letter, being referred to herein as the “Parent Material Contracts”):
(i) [reserved];
(ii) any material joint venture, partnership or limited liability company agreement (other than any such agreement solely between or among the Parent and its wholly-owned Subsidiaries) or similar Contract;
(iii) each acquisition or divestiture Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making by Parent or any Parent Subsidiary of future payments in excess of $20,000,000 and that is material to Parent and the Parent Subsidiaries taken as a whole;
(iv) any settlement agreement or similar Contract restricting in any material respect the operations or conduct of Parent or any Parent Subsidiary or any of their respective Affiliates;
(v) each Contract not otherwise described in any other subsection of this Section 4.17(a) pursuant to which Parent or any Parent Subsidiary is obligated to pay, or entitled to receive, payments in excess of $20,000,000 in the twelve (12)-month period following the date hereof and that is material to Parent and the Parent Subsidiaries taken as a whole;
(vi) any Contract not otherwise described in any other subsection of this Section 4.17(a) that obligates Parent or any Parent Subsidiary to make any future capital investment or capital expenditure outside the ordinary course of business consistent with past practice and in excess of $20,000,000;
(vii) each material Contract to which Parent or any Parent Subsidiary is a party relating to the license of any Intellectual Property rights and each material Contract granting a license from a third-party for use of geophysical survey data, information, or interpretations, other than (A) licenses of commercially-available Software licensed pursuant to a standard license agreement involving aggregate payments of no more than $6,100,000 and (B) non-exclusive licenses of Intellectual Property rights incidental to the sale or purchase of products or services in the ordinary course of business consistent with past practice;
(viii) each Contract that grants any right of first refusal or right of first offer or that limits the ability of Parent, any Parent Subsidiary or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or assets;
(ix) each Contract that contains any standstill, exclusivity rights or “most favored nation” provisions or minimum use or supply requirements that are material in any respect to Parent, the Parent Subsidiaries or their Affiliates;
(x) each Contract relating to outstanding or potential Indebtedness (or commitments in respect thereof) of Parent or the Parent Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $75,000,000;
(xi) each Contract (or form thereof and a list of the parties thereto) between Parent or any Parent Subsidiary, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Parent Subsidiary) of Parent or any Parent Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand (other than any Contract that is a Parent Benefit Plan);
(xii) any Contract (or form thereof and a list of the parties thereto) pursuant to which Parent or any Parent Subsidiary has an obligation to indemnify such officer, director, Affiliate or family member;
(xiii) each Parent Lease involving annual lease payments in excess of $10,000,000 or aggregate lease payments over the remaining life of the lease in excess of $20,000,000, and in each case that is material to Parent and the Parent Subsidiaries taken as whole;
(xiv) each Contract that contains a put, call or similar right pursuant to which Parent or any of the Parent Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or material amount of assets (other than the Parent Equity Plans or agreements entered into pursuant thereto);
(xv) each Contract that includes a material indemnification obligation of Parent or any of its Subsidiaries which was granted outside of the ordinary course of business consistent with past practice;
(xvi) each Contract that obligates any of Parent or the Parent Subsidiaries to make any loans, advances or capital contributions to, or investments in, any Person other than advances for expenses required under customary joint operating agreements and customary advances to operators of Oil and Gas Interests of Parent and the Parent Subsidiaries not covered by a joint operating agreement or participation agreement;
(xvii) [reserved];
(xviii) [reserved];
(xix) [reserved];
(xx) each material Oil and Gas Lease that contains express provisions (A) establishing bonus obligations in excess of $20,000,000 that were not satisfied at the time of leasing or signing or (B) providing for a fixed term, even if there is still production in paying quantities;
(xxi) each agreement (other than Oil and Gas Leases) pursuant to which any of Parent or its Subsidiaries has paid amounts associated with any Production Burden in excess of $20,000,000 during the immediately preceding fiscal year or with respect to which the Parent reasonably expects that it and/or one of its Subsidiaries will make payments associated with any Production Burden in any of the next three succeeding fiscal years that could, based on current projections, exceed $20,000,000 per year;
(xxii) each agreement which is a joint development agreement, joint operating agreement, farmout agreement, farmin agreement, area of mutual interest agreement, exploration agreement, participation agreement, acreage dedication agreement, pooling agreement, or pooling declaration, unit agreement that either (A) is material to the businesses of Parent and the Parent Subsidiaries, taken as a whole, or (B) would reasonably be expected to require Parent and the Parent Subsidiaries to make expenditures in excess of $20,000,000 in the aggregate in any 12-month period following the date hereof;
(xxiii) any Contract with any current employees, officers or directors of Parent or any Parent Subsidiary which provides for annual base compensation in excess of $200,000, other than Contracts that are terminable without penalty or notice;
(xxiv) any Contract with any oilfield services company or other independent contractors that could not be terminated without payment in excess of $15,000,000; and
(xxv) any Contract not otherwise described in any other subsection of this Section 4.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC and under the Securities ActNational Instrument 51-102 - Continuous Disclosure Obligations) with respect to Parent or any of its Subsidiaries that was required to be filed with the SEC with Parent’s Annual Report on Form 10-K for the year ended December 31, 2015 or any Parent SEC Reports filed after the date of filing of such Form 10-K until the date hereof; provided that any such contract that was filed by Parent with the SEC shall not be required to be set forth on Section 5.16(a) of Parent Disclosure Schedule;
(ii) any contract (other than any purchase orders) for the purchase of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments by Parent or any of its Subsidiaries of $20,000,000 or more, or (B) which involved consideration or payments by Parent or any of its Subsidiaries in excess of $20,000,000 in the aggregate during the calendar year ended December 31, 2015, or (C) which is expected to involve consideration or payments by Parent or any of its Subsidiaries in excess of $20,000,000 in the aggregate during the calendar year ending December 31, 2016;
(iii) any contract (other than any purchase orders) for the furnishing of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments to Parent or any of its Subsidiaries of $40,000,000 or more, (B) which involved consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 in the aggregate during the calendar year ended December 31, 2015, or (C) which is expected to involve consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 in the aggregate during the calendar year ending December 31, 2016;
(iv) all contracts concerning the establishment, management or operation of a joint venture, partnership, limited liability company (other than formation agreements related to one of Parent’s wholly-owned Subsidiaries) or business alliance with any third party;
(v) (A) all contracts relating to Indebtedness of Parent or any of its Subsidiaries for borrowed money and (B) all other contracts relating to other Indebtedness of Parent or any of its Subsidiaries in excess of $5,000,000, in each case of (A) and (B), other than intercompany Indebtedness;
(vi) all contracts containing any material non-compete or exclusivity provision or any similarly restrictive provision with respect to any material line of business, Person or geographic area with respect to Parent or any of its Subsidiaries;
(vii) all Parent IP Agreements that are material to the business of Parent or any of its Subsidiaries;
(viii) all other contracts not specified in sub-clause (v) that contain obligations of Parent or its Subsidiaries secured by an Encumbrance (other than a Permitted Encumbrance) on the assets of Parent or any of its Subsidiaries, and interest rate or currency hedging agreements, in each case in connection with which the aggregate actual or contingent obligations of Parent and its Subsidiaries under such agreement are greater than $5,000,000;
(ix) all material contracts, agreements and Leases concerning the use, occupancy, management or operation of any Parent Real Property (including all contracts, agreements and Leases listed or otherwise set forth in Section 5.12(b) of Parent Disclosure Schedule);
(x) all material management contracts and contracts with consultants requiring payments in excess of $10,000,000, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of Parent or any of its Subsidiaries or income or revenues related to any product of Parent or any of its Subsidiaries that require or would reasonably be expected to result in payments of more than $10,000,000 in the aggregate;
(xi) each contract pursuant to which Parent or any of its Subsidiaries is bound that includes a continuing indemnification, “earn out” or other contingent payment obligation, in each case, that could result in payments in excess of $5,000,000 other than ordinary course agreements with customers or suppliers;
(xii) except as set forth on Section 5.10(a) of the Parent Disclosure Schedule, each contract between or among Parent or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than Parent or any of its Subsidiaries), on the other hand, that involves payments of more than $2,000,000 in any one year;
(xiii) other than as set forth in any customer’s standard purchase order terms and conditions, any contract that grants or conveys rights of refusal, or contains “most favored nation”, “most favored customer” or similar pricing provisions, or that obligates Parent or any of its Subsidiaries to conduct any material portion of Parent’s or any of its Subsidiaries’ business on an exclusive or preferential basis with any third party; and
(xiv) any contract that contains “take or pay” or similar provisions.
(b) Except as has not had and would not be reasonably expected to have a Parent Material Adverse Effect, (i) each Parent Material Contract is is, and immediately after the Effective Time will continue to be, a legal, valid and binding obligation agreement of Parent or its one of the Parent Subsidiaries party thereto and, to the knowledge of Parent’s Knowledge, the other parties thereto, enforceable against Parent or such Subsidiaries and, to the knowledge of Parent, the other parties thereto in accordance with its terms, (ii) neither Parent nor any of its Subsidiaries nor, to the knowledge of Parent, any each other party thereto, is in breach or violation of, or default under, any and (ii) each Parent Material Contract and no event (except for any such Contract that has occurred expired or not occurred through Parent’s or any of its Subsidiaries’ action or inaction or, to the knowledge of Parent, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Parent Material Contract and (iii) Parent and its Subsidiaries have not received any written claim or written notice of default, termination (other than as a result of expiration terminated in accordance with its terms) is in full force and effect, subject to the Enforceability Limitations, and each of Parent and the Parent Subsidiaries (to the extent it is a party thereto or cancellation bound thereby) and, to Parent’s Knowledge, each other party thereto has performed in all material respects all obligations required to be performed by it under each Parent Material Contract. Neither Parent nor any of the Parent Subsidiaries, and, to Parent’s Knowledge, no other party thereto is (or, with or without notice or lapse of time would be) in default or breach in any material respect under the terms of any such Parent Material Contract. Parent has furnished or made available Contract and, to the Company correct and complete copies Parent’s Knowledge, no event has occurred that (with or without notice or lapse of all time) will, or would reasonably be expected to (A) constitute such a violation or breach, (B) give any Person the right to accelerate the maturity or performance of any Parent Material ContractsContract or (C) give any Person the right to cancel, including terminate or modify any amendmentsParent Material Contract.
(c) Since January 1, waivers 2017, neither Parent nor any of the Parent Subsidiaries has received any notice of any material violation or changes thereto that are currently in effectbreach of, material default under or intention to cancel, terminate, materially modify or not renew, any Parent Material Contract.
Appears in 1 contract
Parent Material Contracts. (a) Section 5.16(a4.17(a) of the Parent Disclosure Schedule Letter contains a complete and correct list, as of the date of this Agreementhereof, of each Contract (other than, for the following types avoidance of contracts and agreementsdoubt, Contracts disclosed in Parent SEC Documents) described in this Section 4.17(a) under which Parent or any Parent Subsidiary has any current or future rights, responsibilities, obligations or liabilities (in each case, whether written contingent or oral, including all amendments, supplements and modifications in effect as of the date of this Agreement, otherwise) or to which Parent or any Parent Subsidiary or any of its Subsidiaries their respective properties or assets is a party subject, in each case as of the date hereof (such contracts and agreementsall Contracts of the type described in this Section 4.17(a), whether or not set forth on Section 4.17 of the Parent Disclosure Letter, being referred to herein as the “Parent Material Contracts”):
(i) [reserved];
(ii) any material joint venture, partnership or limited liability company agreement (other than any such agreement solely between or among the Parent and its wholly-owned Subsidiaries) or similar Contract;
(iii) each acquisition or divestiture Contract that contains representations, covenants, indemnities or other obligations (including “earnout” or other contingent payment obligations) that would reasonably be expected to result in the receipt or making by Parent or any Parent Subsidiary of future payments in excess of $20,000,000 and that is material to Parent and the Parent Subsidiaries taken as a whole;
(iv) any settlement agreement or similar Contract restricting in any material respect the operations or conduct of Parent or any Parent Subsidiary or any of their respective Affiliates;
(v) each Contract not otherwise described in any other subsection of this Section 4.17(a) pursuant to which Parent or any Parent Subsidiary is obligated to pay, or entitled to receive, payments in excess of $20,000,000 in the twelve (12)-month period following the date hereof and that is material to Parent and the Parent Subsidiaries taken as a whole;
(vi) any Contract not otherwise described in any other subsection of this Section 4.17(a) that obligates Parent or any Parent Subsidiary to make any future capital investment or capital expenditure outside the ordinary course of business consistent with past practice and in excess of $20,000,000;
(vii) each material Contract to which Parent or any Parent Subsidiary is a party relating to the license of any Intellectual Property rights and each material Contract granting a license from a third-party for use of geophysical survey data, information, or interpretations, other than (A) licenses of commercially-available Software licensed pursuant to a standard license agreement involving aggregate payments of no more than $6,100,000 and (B) non-exclusive licenses of Intellectual Property rights incidental to the sale or purchase of products or services in the ordinary course of business consistent with past practice;
(viii) each Contract that grants any right of first refusal or right of first offer or that limits the ability of Parent, any Parent Subsidiary or any of its Affiliates to own, operate, sell, transfer, pledge or otherwise dispose of any material businesses or assets;
(ix) each Contract that contains any standstill, exclusivity rights or “most favored nation” provisions or minimum use or supply requirements that are material in any respect to Parent, the Parent Subsidiaries or their Affiliates;
(x) each Contract relating to outstanding or potential Indebtedness (or commitments in respect thereof) of Parent or the Parent Subsidiaries (whether incurred, assumed, guaranteed or secured by any asset) in an amount in excess of $75,000,000;
(xi) each Contract (or form thereof and a list of the parties thereto) between Parent or any Parent Subsidiary, on the one hand, and any officer, director or Affiliate (other than a wholly-owned Parent Subsidiary) of Parent or any Parent Subsidiary or any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand (other than any Contract that is a Parent Benefit Plan);
(xii) any Contract (or form thereof and a list of the parties thereto) pursuant to which Parent or any Parent Subsidiary has an obligation to indemnify such officer, director, Affiliate or family member;
(xiii) each Parent Lease involving annual lease payments in excess of $10,000,000 or aggregate lease payments over the remaining life of the lease in excess of $20,000,000, and in each case that is material to Parent and the Parent Subsidiaries taken as whole;
(xiv) each Contract that contains a put, call or similar right pursuant to which Parent or any of the Parent Subsidiaries could be required to purchase or sell, as applicable, any equity interests of any Person or material amount of assets (other than the Parent Equity Plans or agreements entered into pursuant thereto);
(xv) each Contract that includes a material indemnification obligation of Parent or any of its Subsidiaries which was granted outside of the ordinary course of business consistent with past practice;
(xvi) each Contract that obligates any of Parent or the Parent Subsidiaries to make any loans, advances or capital contributions to, or investments in, any Person other than advances for expenses required under customary joint operating agreements and customary advances to operators of Oil and Gas Interests of Parent and the Parent Subsidiaries not covered by a joint operating agreement or participation agreement;
(xvii) [reserved];
(xviii) [reserved];
(xix) [reserved];
(xx) each material Oil and Gas Lease that contains express provisions (A) establishing bonus obligations in excess of $20,000,000 that were not satisfied at the time of leasing or signing or (B) providing for a fixed term, even if there is still production in paying quantities;
(xxi) each agreement (other than Oil and Gas Leases) pursuant to which any of Parent or its Subsidiaries has paid amounts associated with any Production Burden in excess of $20,000,000 during the immediately preceding fiscal year or with respect to which the Parent reasonably expects that it and/or one of its Subsidiaries will make payments associated with any Production Burden in any of the next three succeeding fiscal years that could, based on current projections, exceed $20,000,000 per year;
(xxii) each agreement which is a joint development agreement, joint operating agreement, farmout agreement, farmin agreement, area of mutual interest agreement, exploration agreement, participation agreement, acreage dedication agreement, pooling agreement, or pooling declaration, unit agreement that either (A) is material to the businesses of Parent and the Parent Subsidiaries, taken as a whole, or (B) would reasonably be expected to require Parent and the Parent Subsidiaries to make expenditures in excess of $20,000,000 in the aggregate in any 12-month period following the date hereof;
(xxiii) any Contract with any current employees, officers or directors of Parent or any Parent Subsidiary which provides for annual base compensation in excess of $200,000, other than Contracts that are terminable without penalty or notice;
(xxiv) any Contract with any oilfield services company or other independent contractors that could not be terminated without payment in excess of $15,000,000; and
(xxv) any Contract not otherwise described in any other subsection of this Section 4.17(a) that would constitute a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC and under the Securities ActNational Instrument 51-102—Continuous Disclosure Obligations) with respect to Parent or any of its Subsidiaries that was required to be filed with the SEC with Parent’s Annual Report on Form 10-K for the year ended December 31, 2015 or any Parent SEC Reports filed after the date of filing of such Form 10-K until the date hereof; provided that any such contract that was filed by Parent with the SEC shall not be required to be set forth on Section 5.16(a) of Parent Disclosure Schedule;
(ii) any contract (other than any purchase orders) for the purchase of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments by Parent or any of its Subsidiaries of $20,000,000 or more, or (B) which involved consideration or payments by Parent or any of its Subsidiaries in excess of $20,000,000 in the aggregate during the calendar year ended December 31, 2015, or (C) which is expected to involve consideration or payments by Parent or any of its Subsidiaries in excess of $20,000,000 in the aggregate during the calendar year ending December 31, 2016;
(iii) any contract (other than any purchase orders) for the furnishing of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments to Parent or any of its Subsidiaries of $40,000,000 or more, (B) which involved consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 in the aggregate during the calendar year ended December 31, 2015, or (C) which is expected to involve consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 in the aggregate during the calendar year ending December 31, 2016;
(iv) all contracts concerning the establishment, management or operation of a joint venture, partnership, limited liability company (other than formation agreements related to one of Parent’s wholly-owned Subsidiaries) or business alliance with any third party;
(v) (A) all contracts relating to Indebtedness of Parent or any of its Subsidiaries for borrowed money and (B) all other contracts relating to other Indebtedness of Parent or any of its Subsidiaries in excess of $5,000,000, in each case of (A) and (B), other than intercompany Indebtedness;
(vi) all contracts containing any material non-compete or exclusivity provision or any similarly restrictive provision with respect to any material line of business, Person or geographic area with respect to Parent or any of its Subsidiaries;
(vii) all Parent IP Agreements that are material to the business of Parent or any of its Subsidiaries;
(viii) all other contracts not specified in sub-clause (v) that contain obligations of Parent or its Subsidiaries secured by an Encumbrance (other than a Permitted Encumbrance) on the assets of Parent or any of its Subsidiaries, and interest rate or currency hedging agreements, in each case in connection with which the aggregate actual or contingent obligations of Parent and its Subsidiaries under such agreement are greater than $5,000,000;
(ix) all material contracts, agreements and Leases concerning the use, occupancy, management or operation of any Parent Real Property (including all contracts, agreements and Leases listed or otherwise set forth in Section 5.12(b) of Parent Disclosure Schedule);
(x) all material management contracts and contracts with consultants requiring payments in excess of $10,000,000, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of Parent or any of its Subsidiaries or income or revenues related to any product of Parent or any of its Subsidiaries that require or would reasonably be expected to result in payments of more than $10,000,000 in the aggregate;
(xi) each contract pursuant to which Parent or any of its Subsidiaries is bound that includes a continuing indemnification, “earn out” or other contingent payment obligation, in each case, that could result in payments in excess of $5,000,000 other than ordinary course agreements with customers or suppliers;
(xii) except as set forth on Section 5.10(a) of the Parent Disclosure Schedule, each contract between or among Parent or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than Parent or any of its Subsidiaries), on the other hand, that involves payments of more than $2,000,000 in any one year;
(xiii) other than as set forth in any customer’s standard purchase order terms and conditions, any contract that grants or conveys rights of refusal, or contains “most favored nation”, “most favored customer” or similar pricing provisions, or that obligates Parent or any of its Subsidiaries to conduct any material portion of Parent’s or any of its Subsidiaries’ business on an exclusive or preferential basis with any third party; and
(xiv) any contract that contains “take or pay” or similar provisions.
(b) Except as has not had and would not be reasonably expected to have a Parent Material Adverse Effect, (i) each Parent Material Contract is is, and immediately after the Effective Time will continue to be, a legal, valid and binding obligation agreement of Parent or its one of the Parent Subsidiaries party thereto and, to the knowledge of Parent’s Knowledge, the other parties thereto, enforceable against Parent or such Subsidiaries and, to the knowledge of Parent, the other parties thereto in accordance with its terms, (ii) neither Parent nor any of its Subsidiaries nor, to the knowledge of Parent, any each other party thereto, is in breach or violation of, or default under, any and (ii) each Parent Material Contract and no event (except for any such Contract that has occurred expired or not occurred through Parent’s or any of its Subsidiaries’ action or inaction or, to the knowledge of Parent, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, any Parent Material Contract and (iii) Parent and its Subsidiaries have not received any written claim or written notice of default, termination (other than as a result of expiration terminated in accordance with its terms) is in full force and effect, subject to the Enforceability Limitations, and each of Parent and the Parent Subsidiaries (to the extent it is a party thereto or cancellation bound thereby) and, to Parent’s Knowledge, each other party thereto has performed in all material respects all obligations required to be performed by it under each Parent Material Contract. Neither Parent nor any of the Parent Subsidiaries, and, to Parent’s Knowledge, no other party thereto is (or, with or without notice or lapse of time would be) in default or breach in any material respect under the terms of any such Parent Material Contract. Parent has furnished or made available Contract and, to the Company correct and complete copies Parent’s Knowledge, no event has occurred that (with or without notice or lapse of all time) will, or would reasonably be expected to (A) constitute such a violation or breach, (B) give any Person the right to accelerate the maturity or performance of any Parent Material ContractsContract or (C) give any Person the right to cancel, including terminate or modify any amendmentsParent Material Contract.
(c) Since January 1, waivers 2017, neither Parent nor any of the Parent Subsidiaries has received any notice of any material violation or changes thereto that are currently in effectbreach of, material default under or intention to cancel, terminate, materially modify or not renew, any Parent Material Contract.
Appears in 1 contract
Samples: Merger Agreement (Encana Corp)
Parent Material Contracts. (a) Section 5.16(aSchedule 4.9(a) of the Parent Disclosure Schedule contains a complete list, as Letter sets forth all Contracts of the date of this Agreement, Agreement of the following types of contracts and agreements, whether written or oral, including all amendments, supplements and modifications in effect as of the date of this Agreement, type described below to which Parent or any of its Subsidiaries is a party or by which Parent, any of its Subsidiaries or any of the Parent Assets are bound (such contracts and agreements, the “Parent Material Contracts”):
(i) any Contract (excluding joint operating agreements) that can reasonably be expected to result in aggregate payments by Parent and its Subsidiaries of more than $250,000,000 during the current or any subsequent calendar year (net to Parent and its Subsidiaries’ interest) (based solely on the terms thereof and current volumes, without regard to any expected increase in volumes or revenues);
(ii) any Contract that can reasonably be expected to result in aggregate revenues to Parent and its Subsidiaries of more than $250,000,000 during the current or any subsequent calendar year (based solely on the terms thereof and current volumes, without regard to any expected increase in volumes or revenues);
(iii) any Hydrocarbon purchase and sale, acreage dedication, volume commitment, call upon or option purchase agreements, storage, marketing, transportation, processing, gathering, treatment, separation, compression, balancing, fractionation, handling, or similar Contract with respect to Hydrocarbons produced from or attributable to Parent and its Subsidiaries’ interest in the Parent Assets that involved annual payments that exceeded $250,000,000 since January 1, 2022;
(iv) each joint development agreement, exploration agreement, participation, farmout, farm-in or program agreement or similar Contract requiring the Parent or any of its Subsidiaries to make annual expenditures in excess of $250,000,000 following the date of this Agreement, other than customary joint operating agreements entered into in the ordinary course of business consistent with past practice;
(v) any agreement regarding any partnership or joint venture with respect to the Parent Assets in which Parent and its Subsidiaries holds an equity interest with a book value in excess of $250,000,000 (other than any joint operating agreements, unit agreements or participation agreements affecting Oil and Gas Leases of Parent or any of its Subsidiaries);
(vi) all Contracts relating to the pending acquisition (by merger, purchase of equity or assets or otherwise) by Parent or any of its Subsidiaries of any operating business or the capital stock of any other Person for aggregate consideration (in one or a series of transactions) under such Contract of $250,000,000 or more (other than acquisitions or dispositions of inventory or the purchase or sale of Hydrocarbons, in each case, in the ordinary course of business consistent with past practice);
(vii) any Contract that would be required to be filed by Parent as a “material contract” (as such term is defined in pursuant to Item 601(b)(10) of Regulation S-K under the Securities Exchange Act) with respect to Parent or any of its Subsidiaries that was required to be filed with the SEC with Parent’s Annual Report on Form 10-K for the year ended December 31, 2015 or any Parent SEC Reports filed after the date of filing of such Form 10-K until the date hereof; provided that any such contract that was filed by Parent with the SEC shall not be required to be set forth on Section 5.16(a) of Parent Disclosure Schedule;
(ii) any contract (other than any purchase orders) for the purchase of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments by Parent or any of its Subsidiaries of $20,000,000 or more, or (B) which involved consideration or payments by Parent or any of its Subsidiaries in excess of $20,000,000 in the aggregate during the calendar year ended December 31, 2015, or (C) which is expected to involve consideration or payments by Parent or any of its Subsidiaries in excess of $20,000,000 in the aggregate during the calendar year ending December 31, 2016;
(iii) any contract (other than any purchase orders) for the furnishing of materials, supplies, goods, services, equipment or other assets (A) providing for annual payments to Parent or any of its Subsidiaries of $40,000,000 or more, (B) which involved consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 in the aggregate during the calendar year ended December 31, 2015, or (C) which is expected to involve consideration or payments to Parent or its Subsidiaries in excess of $40,000,000 in the aggregate during the calendar year ending December 31, 2016;
(iv) all contracts concerning the establishment, management or operation of a joint venture, partnership, limited liability company (other than formation agreements related to one of Parent’s wholly-owned Subsidiaries) or business alliance with any third party;
(v) (A) all contracts relating to Indebtedness of Parent or any of its Subsidiaries for borrowed money and (B) all other contracts relating to other Indebtedness of Parent or any of its Subsidiaries in excess of $5,000,000, in each case of (A) and (B), other than intercompany Indebtedness;
(vi) all contracts containing any material non-compete or exclusivity provision or any similarly restrictive provision with respect to any material line of business, Person or geographic area with respect to Parent or any of its Subsidiaries;
(vii) all Parent IP Agreements that are material to the business of Parent or any of its Subsidiaries;Benefit Plan; and
(viii) all other contracts not specified any binding commitment (orally or in sub-clause (vwriting) that contain obligations of Parent or its Subsidiaries secured by an Encumbrance (other than a Permitted Encumbrance) on the assets of Parent or any of its Subsidiaries, and interest rate or currency hedging agreements, in each case in connection with which the aggregate actual or contingent obligations of Parent and its Subsidiaries under such agreement are greater than $5,000,000;
(ix) all material contracts, agreements and Leases concerning the use, occupancy, management or operation of any Parent Real Property (including all contracts, agreements and Leases listed or otherwise set forth in Section 5.12(b) of Parent Disclosure Schedule);
(x) all material management contracts and contracts with consultants requiring payments in excess of $10,000,000, including any contracts involving the payment of royalties or other amounts calculated based upon the revenues or income of Parent or any of its Subsidiaries or income or revenues related to any product of Parent or any of its Subsidiaries that require or would reasonably be expected to result in payments of more than $10,000,000 in the aggregate;
(xi) each contract pursuant to which Parent or any of its Subsidiaries is bound that includes a continuing indemnification, “earn out” or other contingent payment obligation, in each case, that could result in payments in excess of $5,000,000 other than ordinary course agreements with customers or suppliers;
(xii) except as set forth on Section 5.10(a) of the Parent Disclosure Schedule, each contract between or among Parent or any of its Subsidiaries, on the one hand, and any of their respective Affiliates (other than Parent or any of its Subsidiaries), on the other hand, that involves payments of more than $2,000,000 in any one year;
(xiii) other than as set forth in any customer’s standard purchase order terms and conditions, any contract that grants or conveys rights of refusal, or contains “most favored nation”, “most favored customer” or similar pricing provisions, or that obligates Parent Company or any of its Subsidiaries to conduct any material portion of Parent’s or enter into any of its Subsidiaries’ business on an exclusive or preferential basis with any third party; and
(xiv) any contract that contains “take or pay” or similar provisionsthe foregoing.
(b) Except as for matters which have not had and would not have reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, (i) each the Parent Material Contract is a legal, valid Contracts are in full force and binding obligation of Parent or its Subsidiaries party thereto effect as to and, to Parent’s knowledge, are binding upon the knowledge of Parent, the other parties thereto, enforceable against Parent or such Subsidiaries and, to the knowledge of Parent, the other parties counterparties thereto in accordance with its their terms, (ii) neither Parent nor any of its Subsidiaries nor, to the knowledge of Parent, any other party thereto, is in breach or violation of, or default under, under any Parent Material Contract Contract, and to Parent’s knowledge, no other Person that is a party thereto is in breach or default under any Parent Material Contract, (iii) no event has occurred or not occurred through occurred, to Parent’s knowledge, which after notice or lapse of time, or both, would constitute a default under any Parent Material Contract, and (iv) as of the date of this Agreement no written notice of default or breach has been received by Parent or any of its Subsidiaries’ action or inaction or, to the knowledge of Parent, the action or inaction of any third party, that with notice or lapse of time or both would constitute a breach or violation of, or default under, Subsidiaries under any Parent Material Contract and (iii) Parent and its Subsidiaries have not received any written claim or written notice Contract, the resolution of default, termination (other than which is outstanding as a result of expiration in accordance with its terms) or cancellation under any such Parent Material Contract. Parent has furnished or made available to the Company correct and complete copies date of all Parent Material Contracts, including any amendments, waivers or changes thereto that are currently in effectthis Agreement.
Appears in 1 contract
