Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any written or oral (for which Purchaser shall be bound following the Closing Date): (i) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more; (ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement); (iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement); (iv) representative, sales agency, dealer or distributor Contract; (v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased; (vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person; (vii) Contract for any charitable or political contribution; (viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person; (ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or (x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 5 contracts
Sources: Asset Purchase Agreement (Balanced Care Corp), Asset Purchase Agreement (Balanced Care Corp), Asset Purchase Agreement (Balanced Care Corp)
Contracts and Commitments. Except as listed and described on (a) With respect to the System, Schedule 1.68 and Schedule 2.1.44.17 lists all of the following material contracts (collectively, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any written or oral (for which Purchaser shall be bound following the Closing Date"Contracts"):
(i) Contract for the future purchase ofemployment, consulting, bonus, deferred compensation, pension, welfare, or payment for, supplies or products, or for retirement agreements and commitments with the performance of services by another party, involving in any one case $10,000 or moreEmployees;
(ii) Contract bonds, notes, mortgages, contracts, agreements, swaps or other derivatives or commitments for the repayment or borrowing of money by Seller, or for a line of credit including borrowings by Seller in the form of a guarantee of, indemnification for, or agreement to sell acquire any obligation of others, and all security or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)pledge agreements related thereto;
(iii) Contract continuing over a period contracts, including management, operating or service agreements, contracts related to ongoing construction, including insurance contracts, surety bonds, architect agreement or consultant agreement, providing for payments in excess of more than six months from the date hereof or exceeding One Hundred Thousand Dollars ($10,000 100,000) by Seller in value any twelve (except for any Resident/Patient's Agreement)12) month period;
(iv) representativecontracts, sales agency, dealer agreements or distributor Contract;commitments containing covenants purporting to limit the freedom of Seller or any Employee to compete in any business or in any geographic area; and
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract contracts not made in the ordinary course of business, providing for payments by Seller in excess of One Hundred Thousand Dollars ($100,000) in any twelve (12) month period.
(b) Seller has made available to Purchaser true and complete copies of all the foregoing Contracts.
(c) Seller has no liability for debt other than the debt reflected in the Seller's business consistent with past practice. Each Bonds and Notes.
(d) All of the Contracts are in full force and other instrumentseffect. Seller has not, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, nor to the Knowledge of Seller and, to Seller's Knowledge has any other party thereto, are in compliance breached any provision of or defaulted under the terms of, nor does any condition exist which, with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder andcause Seller, or to the Knowledge of Seller, any other party, to Seller's Knowledge, a be in default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to under any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement, Asset Purchase Agreement
Contracts and Commitments. (a) Except (1) for Company Franchise Agreements and (2) as listed and described set forth on Schedule 1.68 and Schedule 2.1.43.09 of the Disclosure Schedules, neither Seller nor any party acting on behalf none of Seller with Seller's Knowledge and consent the Acquired Companies is a party to or bound by any written or oral (for which Purchaser shall be bound following the Closing Date):executory:
(i) Contract for the future purchase ofbonus, pension, profit sharing, retirement or payment for, supplies other form of deferred compensation plan or products, or for the performance of services by another party, involving in any one case $10,000 or moreContract;
(ii) Contract or indenture relating to sell or supply products Indebtedness or to perform servicesmortgaging, involving in pledging or otherwise placing a Lien (other than Permitted Liens) on any one case $10,000 or more (except for any Resident/Patient's Agreement)portion of the assets of the Acquired Companies;
(iii) Contract continuing over a period guaranty of any obligation for Indebtedness or other guaranty involving more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)100,000;
(iv) representativelease or Contract under which it is lessee of, sales agencyor holds or operates any personal property owned by any other party, dealer or distributor Contractfor which the annual rental exceeds $100,000;
(v) lease or Contract under which Seller it is either lessor of or lessee other than with respect permits any third party to hold or operate any of its personal property, for which the Real Property Leasedannual rental exceeds $100,000;
(vi) noteother than in respect of blanket purchase orders that do not obligate the Company to purchase a minimum amount, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or group of related Contracts with the same party for the borrowing purchase by any Acquired Company of products or lending services which provided for annual payments in excess of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking $100,000 during the trailing twelve-month period ending on the date of the indebtedness of any other PersonLatest Balance Sheet;
(vii) Contract for relating to any charitable future disposition or political contributionacquisition of material stock, assets or properties by any Acquired Company, or any merger or business combination with respect to or involving any Acquired Company (other than this Agreement);
(viii) Contract limiting requiring any Acquired Company to purchase its total requirements of any product or restraining Seller services from a third party or any successor that contain “take or assign from engaging or competing in any likeness of business with any Personpay” provisions;
(ix) licensebroker, franchisedistributor, distributorship dealer, manufacturer’s representative, agency, sales promotion, market research, marketing consulting or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; oradvertising Contract involving more than $100,000 annually;
(x) material license or Contract relating to (i) the use by any Acquired Company of any third-party Intellectual Property or (ii) the use of any Company Intellectual Property other material Contract not made than non-exclusive licenses granted to distributors in the ordinary course of Seller's business;
(xi) Contract which limits or prohibits or purports to limit or prohibit any Acquired Company from competing or freely engaging in any line of business consistent or with past practice. Each any Person or anywhere in the world or during any period of time or containing any exclusivity, most favored nations, non-solicitation or similar provisions;
(xii) other than with respect to any of the Company’s Subsidiaries set forth on Schedule 3.04 of the Disclosure Schedules, Contract that provides for any joint venture, partnership or similar arrangement by any Acquired Company;
(xiii) Contract between or among any Acquired Company on the one hand and any Affiliate of any Acquired Company (other than the Company or its Subsidiaries) on the other hand;
(xiv) employment agreement or contract with an independent contractor or consultant (or similar arrangement) to which an Acquired Company is a party and which is not cancellable without material penalty or without more than thirty (30) days’ notice;
(xv) collective bargaining agreement or Contract with any union, works council or labor organization; or
(xvi) any other Contract, the absence of which would cause a Material Adverse Effect.
(b) The Company either has supplied Purchaser with, or has given Purchaser access to, a true and correct copy of all Contracts and other instruments, documents and undertakings listed on Schedule 1.68 3.09 of the Disclosure Schedules (the “Material Contracts”), together with all material amendments, modifications and Schedule 2.1.4 supplements thereto.
(c) With respect to each Material Contract: (i) such contract is a valid and binding agreement of an Acquired Company, as applicable, enforceable in accordance with its terms, Seller andexcept as the enforcement thereof may be limited by bankruptcy Laws, to Seller's Knowledge other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies; (ii) none of the Acquired Companies, as applicable, is in material breach or default, nor has any other party theretoAcquired Company taken any action which, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, time or both, would constitute a default by Seller thereunder andmaterial breach or default, to Seller's Knowledgeor permit termination, a default by any other party thereto; (ii) except modification or acceleration, as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contractsapplicable, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to under such party after the Closing Datecontract; and (iii) to the Company’s knowledge, no consent other party is in material breach or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebydefault under such contract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (CNL Strategic Capital, LLC)
Contracts and Commitments. Except as listed and described on (a) Schedule 1.68 and Schedule 2.1.41.01(d) lists all agreements, neither whether oral or written, to which Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party party, which are currently in effect, and which relate to any written the operation of the Business or oral (for which Purchaser shall be bound following the Closing Date):
Assets, including, without limitation: (i) Contract each contract for the future purchase employment of any officer, individual employee or other person on a full-time or consulting basis who performs functions in connection with the Business or relating to severance pay for any such person; (ii) each confidentiality agreement; (iii) each agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the Assets; (iv) each lease or agreement relating to the Business under which Seller is lessee of, or payment forholds or operates any property, supplies real or productspersonal, owned by any other party, for which the annual rental exceeds $2,000; (v) each contract or group of related contracts (including purchase orders) with the same party for the performance purchase of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or services under which the undelivered balance of such products or services of the Business is in excess of $2,000; (vi) each contract or group of related contracts with the same party for the sale of products or services of the Business under which the undelivered balance of such products or services has a sales price in excess of $2,000; (vii) each contract or group of related contracts relating to perform the Business with the same party (other than any contract or group of related contracts for the purchase or sale of products or services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding dates thereof, not terminable by it on 30 days' or less notice without penalty and involving more than $10,000 2,000; (viii) each contract which prohibits Seller from freely engaging in value business anywhere in the world; (except ix) each contract for the sale or distribution of any Resident/Patient's Agreement);
of the products of the Business (iv) representativeincluding any distributor, sales agency, dealer or distributor Contract;
and original equipment manufacturer contract); (vx) lease under which Seller is either lessor or lessee other than with respect each franchise agreement relating to the Real Property Leased;
Business; (vixi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan each license agreement or other Contract or agreement providing for the borrowing payment or lending receipt of money (including without limitation loans to royalties or from Employees) or guarantee, pledge or undertaking of other compensation by Seller in connection with the indebtedness of any other Person;
intellectual property rights listed in Schedule 1.01(g); (vii) Contract each contract or commitment for capital expenditures of the Business in excess of $2,000; (xviii) agreement for the sale of any charitable Asset; or political contribution;
(viiixix) Contract limiting other agreement which is either material to the Business or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract was not made entered into in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable business.
(b) Seller has performed all obligations required to be performed by it in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance connection with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are contracts or commitments contained in Schedule 1.01(d) and is not in default in the performance, observance or fulfillment receipt of any claim of default under any contract or commitment required to be disclosed under such caption; Seller has no present expectation or intention of not fully performing any material obligation, covenant obligation pursuant to any contract or condition contained therein, commitment required to be disclosed under such caption; and Seller has no event has occurred that with knowledge of any breach or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default anticipated breach by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services contract or commitment required to be rendered disclosed under such caption.
(c) Prior to the date of this Agreement, Buyer has been supplied with a true and correct copy of each written contract or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease and a written description of each oral contract or commitment, contained in Schedule 1.01(d), together with all amendments, waivers or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebychanges thereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Henley Healthcare Inc), Asset Purchase Agreement (Rehabilicare Inc)
Contracts and Commitments. (a) Except as for the contracts, commitments, leases, licenses and agreements listed and described on Section 4.11 of the Company Disclosure Schedule 1.68 and Schedule 2.1.4(the "Company Agreements"), neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent the Company is a not party to any written or oral (for which Purchaser shall be bound following the Closing Date):subject to:
(i) Contract for any agreement (or group of related agreements) which requires future expenditures by the future purchase of, or payment for, supplies or products, or for the performance Company in excess of services by another party, involving in any one case $10,000 or moreis otherwise material to the Company's business;
(ii) Contract to sell any material contract or supply products agreement for the purchase or to perform servicessale of any commodity, involving product, material, supplies, equipment or other personal property, other than purchase or sale orders entered into in any one case $10,000 or more (except for any Resident/Patient's Agreement)the ordinary course of business consistent with past practices;
(iii) Contract continuing over a period of more than six months from the date hereof any employment, consulting or exceeding $10,000 in value (except for any Resident/Patient's Agreement)independent contractor agreements;
(iv) any distributor, sales representative, sales agencyagent, dealer commission or distributor Contractsimilar agreement, whether or not in writing;
(v) lease under which Seller is either lessor any material license agreement (whether as licensor or lessee other than with respect to the Real Property Leasedlicensee) or royalty agreement;
(vi) any agreement with any current or former stockholder, officer or director of the Company, or any “affiliate” or “associate” of such persons (as such terms are defined in the rules and regulations promulgated under the Securities Act), including without limitation any agreement or other arrangement providing for the furnishing of services by, rental of real or personal property from, or otherwise requiring payments to, any such person;
(vii) any agreement or other commitment with any person or entity containing covenants limiting the freedom of the Company or any of the Company’s affiliates, employees, directors, officers, consultants or agents to compete in any line of business or with any person or entity or in any geographical location or to use or disclose any information in their possession;
(viii) any loan agreement, indenture, note, bond, debenture, bondguarantee or any other document or agreement evidencing a capitalized lease obligation or indebtedness to any person or any agreement of guaranty, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement indemnification or other Contract similar commitment with respect to the obligations or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness liabilities of any other Person;
(viiix) Contract any agreement for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing the disposition of Company assets other than in any likeness the ordinary course of business consistent with any Personpast practices;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any agreement for the acquisition of the business or shares of another party (except repurchase rights in favor of the Company for shares of Company common stock owned by any employee, officer, director, consultant, or advisor to the Company);
(xi) any contract or agreement concerning a partnership or joint venture with one or more Person;
(xii) any lease of real property;
(xiii) any agreement which contains a fixed penalty or liquidated damages clause for late performance or other material Contract default by the Company to the extent that such late performance or default would have a Material Adverse Effect on the Company; or
(xiv) any other agreement or contract (or group of related agreements or contracts) to the extent not made otherwise disclosed in the ordinary course Company Disclosure Schedule, the performance of Seller's business consistent with past practicewhich involves consideration paid by the Company in excess of $10,000 in any one year period.
(b) Correct and complete copies of all Company Agreements, including all amendments thereto, have been delivered to SOLS. The Company has not breached, is not in default under, and has not received written notice of any breach of or default under, any agreement required to be disclosed in Section 4.11 of the Company Disclosure Schedule (each, a “Material Contract”). To the Company’s knowledge, no other party to any Material Contract has breached or is in default of any of its obligations thereunder to the extent that such breach or default would have a Material Adverse Effect on the Company. Each Material Contract is in full force and effect, except in any such case for breaches, defaults or failures to be in full force and effect that do not currently have or would not have a Material Adverse Effect on the Company. Each Material Contract is a legal, valid and binding obligation of the Contracts Company and each of the other instrumentsparties thereto, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller andexcept that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, creditors' rights generally and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by general principles of equity.
(c) The consent of, or on behalf the delivery of notice to or filing with, any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 a Material Contract is not required for the execution and delivery by the Company of this Agreement or the consummation of the transactions contemplated herebyunder the Agreement.
Appears in 2 contracts
Sources: Share Acquisition Agreement, Share Acquisition Agreement (Sollensys Corp.)
Contracts and Commitments. Except as listed Section 3.13 of the Disclosure Schedule sets forth a list of all of the following agreements, contracts and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor commitments to which the Company or any party acting on behalf of Seller with Seller's Knowledge and consent its Subsidiaries is a party or by which the Company, any of its Subsidiaries or their respective assets are bound (each, a “Material Contract”):
(a) Employment, termination, severance, indemnification, collective bargaining or other agreements or arrangements with any employee, director, independent contractor, consultant, distributor or sales representative earning in excess of $100,000 per year;
(b) any change of control agreements;
(c) agreements, contracts, commitments or arrangements granting exclusivity or containing any covenant limiting the ability of the Company or its Subsidiaries to engage in any written line of business or oral to compete with any business or Person;
(d) agreements or contracts with the Seller or any officer, director, employee, of Seller (other than employment, severance and change of control agreements covered by clause (a) or (b) above) under which amounts in excess of $100,000 are payable;
(e) agreements or contracts related to Company Debt or under which the Company or any of its Subsidiaries has borrowed or loaned money, or any note, bond, indenture, mortgage, installment obligation or other evidence of indebtedness for borrowed or loaned money or any guarantee of such indebtedness;
(f) leases or licenses pursuant to which Purchaser shall be bound following personal, intellectual or real property is leased or licensed to or from the Closing Date):Company or any of its Subsidiaries (including all Real Estate Leases);
(g) guaranties, suretyships or other contingent agreements of the Company or its Subsidiaries;
(h) any agreement, contract, commitment or arrangement relating to capital expenditures with respect to the Company or its Subsidiaries and involving future payments which exceed $250,000 in any 12-month period;
(i) Contract for any agreement, contract, commitment or arrangement relating to the future purchase of, acquisition or payment for, supplies or products, or for the performance disposition of services by another party, involving in any one case $10,000 or more;
assets (ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each ) or any capital stock of any business enterprise;
(j) any tax sharing or tax allocation agreement or agreement with respect to a partnership, joint venture or similar cooperative activity;
(k) contracts or purchase orders pursuant to which the Company or its Subsidiaries will receive or pay in excess of $1,000,000 over any twelve- month period;
(l) all agreements and contracts containing “take or pay” provisions;
(m) all powers of attorney executed on behalf of the Contracts Company or any of its Subsidiaries;
(n) all agreements and contracts with any Governmental Authority; and
(o) all agreements containing a provision to indemnify any party or assume any tax, environmental or other instrumentsliability (other than third party purchase orders entered into in the ordinary course of business). The Company has made available to the Buyer true and complete copies of all of the Material Contracts. With respect to all Material Contracts, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with neither the Company nor any of its termsSubsidiaries, Seller andnor, to Seller's Knowledge the Company’s Knowledge, any other party theretoto any such contract is in violation or breach thereof or default thereunder and there does not exist under any thereof any event which, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or the lapse of time, or both, would constitute such a default by Seller thereunder andviolation, breach or default, except for such violations breaches, defaults and events as to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments which requisite waivers or consents have been received by Seller by or on behalf of any party to any obtained (which are identified in Section 3.13 of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyDisclosure Schedule).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Actuant Corp), Stock Purchase Agreement (Actuant Corp)
Contracts and Commitments. (a) Except as listed and described disclosed, as required herein, on Schedule 1.68 and Schedule 2.1.4the attached Contracts Schedule, neither Seller nor any party acting on behalf of Seller is not, with respect to Seller's Knowledge and consent is ’s Table Games Business, a party to any written oral or oral (for which Purchaser shall be bound following the Closing Date):written:
(i) Contract for the future purchase ofcontract with any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option or similar plan or practice, whether formal or informal, or payment for, supplies any severance agreement or products, or for the performance of services by another party, involving in any one case $10,000 or morearrangement;
(ii) Contract to sell management agreement, contract for the employment of any officer, partner, individual employee or supply products other person on a full-time, part-time or to perform services, involving in consulting basis or providing for the payment of any one case $10,000 cash or more (except for any Resident/Patient's Agreement)other compensation or benefits upon the sale of Seller’s Table Games Business or prohibiting competition or the disclosure of trade secrets or confidential information;
(iii) Contract agreement or indenture relating to Indebtedness or to mortgaging, pledging or otherwise placing a lien on any of Seller’s assets or letter of credit arrangements;
(iv) agreements with respect to the lending or investing of funds;
(v) nondisclosure or confidentiality agreements with respect to the Table Games Business;
(vi) lease or agreement under which Seller is lessee of or holds or operates any property, real or personal, owned by any other party for which the annual rental exceeds $25,000;
(vii) lease or agreement under which Seller is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by Seller;
(viii) broker, distributor, vendor, customer or maintenance agreements;
(ix) other contract or group of related contracts with the same party continuing over a period of more than six months from the date hereof or exceeding dates thereof, not terminable by Seller upon 30 days’ or less notice without penalty or involving more than $10,000 25,000;
(x) contract which prohibits Seller from freely engaging in value Seller’s Table Games Business anywhere in the world;
(except for xi) contract relating to the marketing, sale, distribution, reproduction, advertising or promotion of its products;
(xii) franchise or agency agreements;
(xiii) agreement with any Resident/Patient's Agreementofficer, director, employee, shareholder, or Affiliate of Seller or any individual related by marriage or adoption to any such individual or any entity in which any such Person owns any beneficial interest (collectively, the “Insiders”);
(ivxiv) representative, sales agency, dealer warranty agreement with respect to products sold or distributor Contract;
(v) lease indemnity agreement with any supplier to Seller’s Table Games Business under which Seller is either lessor obligated to indemnify such supplier against product warranty or lessee other than infringement or similar claims;
(xv) agreements relating to ownership of or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(xvi) power of attorney executed by or on behalf of Seller;
(xvii) agreements and licenses (including all inbound licenses) to which Seller is a party with respect to the Real Property Leasedany Seller’s Table Games Intellectual Property;
(vixviii) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter agreements or group of credit agreement, loan agreement related agreements pursuant to which Seller has derived revenue or other Contract or consideration in excess of $5,000 in the aggregate for the borrowing or lending of money all such agreements (including and without limitation loans regard to or from Employees) or guaranteeprofits, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) licensecosts, franchise, distributorship or other agreementdeductions) between June 1, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by 2006 and the BusinessClosing Date; or
(xxix) any other agreement material Contract to Seller’s Table Games Business, whether or not made entered into in the ordinary course Ordinary Course of Seller's business consistent with past practice. Each of Business.
(b) Except as disclosed, as required herein, on the attached Contracts Schedule, (i) no contract or commitment required to be disclosed on the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable has been breached in accordance with its terms, Seller and, to Seller's Knowledge any material respect or cancelled by the other party thereto, are in compliance (ii) Seller has performed all obligations under the contracts required to be disclosed on the Contracts Schedule required to be performed by Seller and there is no material breach of or default under any lease, contract, commitment or other agreement to which Seller is a party with the provisions thereof, Seller and, respect to Seller's Knowledge ’s Table Games Business or any other party theretoevent which, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the upon giving of notice or lapse of time, time or both, would constitute such a default by Seller thereunder andbreach or default, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) Seller has no consent present expectation or approval intention of not fully performing any party obligation pursuant to any Contractcontract required to be disclosed on the Contracts Schedule, commitmentand (iv) each contract required to be disclosed on the Contracts Schedule is, lease or other instrumentto the best of Seller’s Knowledge, document or undertaking listed on Schedule 1.68 legal, valid, binding, enforceable and Schedule 2.1.4 is required for the execution of this Agreement or in full force and effect, and will continue as such following the consummation of the transactions contemplated herebyhereby (subject to bankruptcy, moratorium and similar laws and subject to the application of specific performance and other equitable principles).
(c) Buyer has heretofore been supplied with a true and correct copy of all written contracts (and a true and correct written description of all oral contracts) which are disclosed on the attached Contracts Schedule, together with all amendments, exhibits, attachments, waivers or other changes thereto.
(d) There are no contracts, licenses, or other agreements of any kind other than those disclosed, as required herein, on the Contracts Schedule that are used in or a part of Seller’s Table Games Business.
Appears in 2 contracts
Sources: Purchase Agreement (Progressive Gaming International Corp), Purchase Agreement (Shuffle Master Inc)
Contracts and Commitments. Except as listed Section 2.11 of the Company Disclosure ------------------------- Letter sets forth a list of each of the following oral or written contracts, agreements, understandings and described on Schedule 1.68 arrangements, a true and Schedule 2.1.4complete copy of each (or, neither Seller nor any party acting on behalf in the case of Seller with Seller's Knowledge and consent is an oral agreement, a party written summary of all of the material terms of which) has been provided to any written or oral (for which Purchaser shall be bound following the Closing Date):DoveBid:
(ia) Contract Contract, agreement or other understanding or arrangement providing for payments by or to the future purchase of, Company in an aggregate amount of $50,000 or payment for, supplies or products, or for the performance of services by another party, involving more in any one case $10,000 or moreyear;
(iib) Contract to sell Company IP Rights Agreement (as defined in Section 2.12), and contract, license, agreement or supply products other understanding or to perform services, involving in any one case $10,000 arrangement as licensor or more (except for any Resident/Patient's Agreement)licensee;
(iiic) Contract continuing over a period Contract, lease, license, agreement or other understanding or arrangement for the lease of more than six months from the date hereof real or exceeding $10,000 in value (except for any Resident/Patient's Agreement)personal property;
(ivd) representativeJoint venture contract or arrangement or any other agreement that involves or could involve a sharing of profits, sales agency, dealer expenses or distributor Contractlosses with any other party;
(ve) lease under which Seller is either lessor Instrument evidencing or lessee other than with respect related in any way to the Real Property Leased;
(vi) noteindebtedness for borrowed money by way of direct loan, debenturesale of debt securities, bondpurchase money obligation, conditional sale agreementsale, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the otherwise, except for trade indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made incurred in the ordinary course of Sellerbusiness and for no more than $50,000 in amount, and except as disclosed in the Financial Statements;
(f) Contract, agreement or other understanding or arrangement containing covenants purporting to limit the Company's freedom to compete in any line of business in any geographic area, or which grants any exclusive rights or obligations;
(g) Contract, agreement or other understanding or arrangement for or relating to the employment of any officer, employee, contractor, or consultant of the Company;
(h) Contract, agreement or other understanding or arrangement for or relating to an acquisition or disposition of assets or securities of another person, other than in the ordinary course of business consistent with past practice. Each , or a merger or consolidation involving the Company; or
(i) Any other agreement not specified above which is material to the business of the Contracts and other Company. All such agreements, contracts, plans, leases, instruments, documents arrangements, licenses and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is commitments identified in this Section 2.11 are valid and enforceable in accordance with its termsfull force and effect. The Company is not, Seller andnor, to Seller's the Knowledge of the Company, is any other party thereto, are in compliance breach or default under the terms of any such agreement, contract, plan, lease, instrument, arrangement, license or commitment, nor to the Knowledge of the Company, has any event occurred thereunder which, with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance passage of time or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered both will lead to such party after the Closing Date; and (iii) no consent a default. The Company does not have any liability for renegotiation of government contracts or approval of any party to any Contractsubcontracts, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyif any.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Dovebid Inc), Stock Purchase Agreement (Dovebid Inc)
Contracts and Commitments. Except as listed and described set forth on Schedule 1.68 and Schedule 2.1.45.14 or as contemplated by this Agreement, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent the Company is not a party to any written or oral oral:
(a) contract, agreement or arrangement for the employment of, or benefits to, any officer, individual employee, or other Person on a full-time, part-time, consulting or other basis;
(b) instrument, agreement or indenture relating to Funded Indebtedness or to the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company;
(c) factoring arrangement or other agreement involving the sale of the Company's accounts receivable to a third party at a discount;
(d) guarantee of any obligation for borrowed money or otherwise;
(e) agreement with respect to the lending or investing of funds;
(f) lease or agreement under which Purchaser shall be bound following the Closing Date):Company is the lessee of or the holder or operator of any real or personal property owned by any other party;
(g) lease or agreement under which the Company is the lessor of or permits any third party to hold or operate any real or personal property owned or controlled by the Company;
(h) assignment, license, indemnification or agreement with respect to any form of intangible property, including, without limitation, any Intellectual Property or confidential information;
(i) Contract for contract or group of related contracts with the future same party (excluding purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made orders entered into in the ordinary course of Sellerbusiness) for the purchase or sale of products or services under which the undelivered balance of such products and services has a selling price in excess of $20,000;
(j) contract which prohibits the Company from freely engaging in business anywhere in the world;
(k) contract relating to the purchase, distribution, marketing or sales of the Company or any other Person's products (other than purchase and sales orders entered into in the ordinary course of business consistent with past practicepractices and the performance of which by the parties thereto is reasonably expected to be substantially completed within sixty (60) days of the execution thereof);
(l) contract with any Affiliate; or
(m) other agreement or instrument material to the Business. Each of the Contracts and other instrumentsagreement, documents and undertakings listed lease, license, contract or commitment disclosed on Schedule 1.68 and Schedule 2.1.4 5.14 is valid and enforceable against the Company and the other parties thereto. Except as specifically disclosed in accordance with its termsSchedule 5.14, Seller and, the Company has performed in all material respects all obligations required to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are be performed by it and is not in default under or in the performance, observance or fulfillment breach of nor in receipt of any material obligationclaim of default or breach under any such agreement, covenant lease, license, contract or condition contained therein, commitment to which it is a party; and no event has occurred that which with the passage of time or without the giving of notice or lapse both would result in a default or breach under any such document. To the knowledge of timeSeller, no other party to any agreement, lease, license, contract, or both, commitment to which the Company is a party is in default under or in breach of such document and no event has occurred which with the passage of time or giving of notice or both would constitute result in a default by Seller thereunder andor breach under any such document. The Company has supplied the Buyer with (i) a true, to Seller's Knowledgecorrect and complete copy of each of the documents listed on Schedule 5.14, a default by any together with all amendments, waivers or other party changes thereto; , and (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf a complete description of any party all oral agreements to any of which the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 Company is required for the execution of this Agreement or the consummation of the transactions contemplated herebya party.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Netwolves Corp), Stock Purchase Agreement (Norstan Inc)
Contracts and Commitments. (a) Except as listed and described set forth on Schedule 1.68 and Schedule 2.1.4the attached Contracts Schedule, neither Seller the Company nor any party acting on behalf of Seller with Seller's Knowledge and consent the ContentGuard Subsidiary is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):any:
(i) Contract contract for the future purchase ofemployment of any officer, individual employee or payment for, supplies other person on a full-time or products, or for the performance of services by another party, involving in any one case $10,000 or moreconsulting basis;
(ii) Contract agreement or indenture relating to sell or supply products the borrowing of money or to perform servicesmortgaging, involving in pledging or otherwise placing an Encumbrance on any one case $10,000 of the Company’s or more (except for any Resident/Patient's Agreement)the ContentGuard Subsidiary’s assets;
(iii) Contract continuing over a period guaranty of more than six months from the date hereof any obligation for borrowed money or exceeding $10,000 in value (except for any Resident/Patient's Agreement)other material guaranty;
(iv) representativelease or agreement under which it is lessee of or holds or operates any personal property owned by any other party, sales agency, dealer or distributor Contractfor which the annual rental exceeds $50,000;
(v) lease or agreement under which Seller it is either lessor of or lessee other than with respect permits any third party to the Real Property Leasedhold or operate any property, real or personal;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter contract or group of credit agreement, loan agreement or other Contract or related contracts with the same party for the borrowing purchase of products or lending services, under which the undelivered balance of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking such products and services has a selling price in excess of the indebtedness of any other Person$50,000;
(vii) Contract for any charitable contract to dispose of, license or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part transfer to any patent, trademark, trade name, service mark ▇▇ copyright or Person any rights to any ideasIntellectual Property, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made than in the ordinary course of Seller's business consistent with past practice. Each ; or
(viii) contract which prohibits the Company or the ContentGuard Subsidiary from freely engaging in business anywhere in the world.
(b) A complete and accurate copy of all written contracts, agreements, instruments and plans which are referred to on the Contracts Schedule, together with all material amendments, waivers or other changes thereto, have been made available to the Buyer.
(c) All of the Contracts contracts, agreements, instruments and other instruments, documents and undertakings plans listed on the Contracts Schedule 1.68 are valid, binding and Schedule 2.1.4 is valid in full force and effect and are enforceable by the Company or the ContentGuard Subsidiary in accordance with its termstheir terms (subject to the effects of bankruptcy, Seller andinsolvency, reorganization, moratorium, fraudulent conveyance or other Laws now or hereafter in effect relating to Seller's Knowledge any other party thereto, are in compliance with creditors’ rights generally and general principles of equity). Neither the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not Company nor the ContentGuard Subsidiary is in default in the performance, observance or fulfillment of any material obligationrespect under any contract, covenant agreement, instrument or condition contained thereinplan listed on the Contracts Schedule, and no event has occurred that with or without to the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Company’s Knowledge, a default by any no other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contractscontract, commitmentsagreement, leases and other instruments instrument or plan listed on the Contracts Schedule 1.68 and Schedule 2.1.4 for services to be rendered is in default under any such contract, agreement, instrument or products to be delivered to such party after plan.
(d) Neither the Closing Date; and (iii) no consent or approval of any Company nor the ContentGuard Subsidiary is a party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation Tax Sharing Arrangement with any of the transactions contemplated herebySellers.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Pendrell Corp), Stock Purchase Agreement (Pendrell Corp)
Contracts and Commitments. (a) Except as listed and described set forth on Schedule 1.68 and Schedule 2.1.46.13, neither no Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent or Subsidiary is a party to or bound by any written of the following types of contracts, whether oral or oral (for written, which Purchaser shall be bound following are directly related to the Closing Date):Business:
(i) Contract pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for the future purchase ofdeferred or other compensation to employees or any other employee benefit plan or arrangement, or payment for, supplies any collective bargaining agreement or productsany other contract with any labor union, or for the performance of services by another partyseverance agreements, involving in any one case $10,000 programs, policies or morearrangements;
(ii) Contract contract relating to sell the employment or supply products severance of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis or contract relating to perform servicesloans to officers, involving in any one case $10,000 directors or more (except for any Resident/Patient's Agreement)other Insiders;
(iii) Contract continuing over a period contract under which any Seller or Subsidiary has advanced or loaned any other Person any amount, other than trade credit extended in the Ordinary Course of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)Business;
(iv) representativeagreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, sales agencypledging or otherwise placing a Lien on any Purchased Asset, dealer or distributor Contractother than Permitted Liens;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leasedguaranty of any obligation;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter lease or agreement under which any Seller or Subsidiary is the lessor of credit agreement, loan agreement or other Contract permits any third party to hold or for operate any personal property owned or controlled by the borrowing Sellers or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other PersonSubsidiaries;
(vii) Contract for any charitable contract or political contributiongroup of related contracts (excluding purchase orders issued or received in the Ordinary Course of Business) with the same party or group of affiliated parties the performance of which involves consideration in excess of $100,000;
(viii) Contract limiting assignment, license, indemnification or restraining Seller or agreement with respect to any successor or assign from engaging or competing in intangible property (including, without limitation, any likeness of business with any PersonProprietary Rights);
(ix) license, franchise, distributorship brokers or other agreement, including those that relate finders agreements;
(x) contract or agreement prohibiting it from freely engaging in whole any business or competing anywhere in part to the world;
(xi) any patent, trademark, trade name, service mark ▇▇ copyright contract or to agreement with any ideas, technical assistance customer or other know-how of or used by the Businesssupplier named on Schedule 6.27; or
(xxii) any other material Contract not made agreement, other than in the ordinary course Ordinary Course of Seller's business consistent with past practice. Each Business, which relates to the Business or any Purchased Asset and involves a receipt or expenditure in excess of $100,000 annually.
(b) All of the Assigned Contracts and other instrumentsare valid, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid binding and enforceable against the Sellers and, to the Knowledge of Sellers, against the other parties to the Assigned Contracts in accordance with its their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights, and as limited by general principles of equity that restrict the availability of equitable remedies. Each Seller and, and each Subsidiary has performed all material obligations required to Seller's Knowledge any other party thereto, are be performed by it and is neither in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not material default under or in default breach of nor in the performance, observance or fulfillment receipt of any material obligation, covenant claim of default or condition contained therein, and no breach under any Assigned Contract. No event has occurred that which with the passage of time or without the giving of notice or lapse both would result in a material default, breach or event of time, noncompliance by the Sellers or both, would constitute a default by Seller thereunder andthe Subsidiaries or, to Seller's Knowledgethe knowledge of Seller Parent, a default by any other party thereto; (ii) except under any Assigned Contract. Except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been 6.13, (i) none of the Sellers has received by Seller by or on behalf written notice of the intention of any party to cancel or terminate any Assigned Contract and (ii) to the knowledge of Seller Parent, there has not been any breach or anticipated breach by the Contracts, commitments, leases other parties to any Assigned Contract.
(c) The Seller Parent has made available to the Purchaser Parent a true and other instruments listed correct copy of all written contracts which are disclosed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract6.13, commitmentin each case together with all amendments, lease waivers, or other instrument, document or undertaking listed changes thereto (all of which are disclosed on Schedule 1.68 6.13). Schedule 6.13 contains an accurate and Schedule 2.1.4 is required for the execution complete description of this Agreement or the consummation all material terms of the transactions contemplated herebyall oral contracts referred to therein.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Powerwave Technologies Inc), Asset Purchase Agreement (Remec Inc)
Contracts and Commitments. Except as listed The SPAR Disclosure Letter sets forth an accurate, correct and described on Schedule 1.68 complete list of all material agreements, contracts, commitments, arrangements and Schedule 2.1.4understandings, neither Seller nor written or oral, including all amendments and supplements thereto, of each SPAR Marketing Company (the "SPAR Contracts"), to which any party acting on behalf of Seller with Seller's Knowledge and consent SPAR Marketing Company is a party to or is bound, or by which any written or oral (for of their respective assets are bound, and which Purchaser shall be bound following the Closing Date):involve any:
(ia) Contract agreement, contract, commitment or other legally binding arrangement with any present or former (within the past two years) officer, employee or material consultant involving annual salaries or minimum annual payments of $100,000 or more (excluding normal salesmen's commissions);
(b) agreement, contract, commitment or other legally binding arrangement for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, a third party involving in any one case $10,000 100,000 or moremore (other than those that may be terminated without penalty);
(iic) Contract agreement, contract, commitment or other legally binding arrangement to sell or supply products or to perform services, services involving in any one case $10,000 100,000 or more (except for any Resident/Patient's Agreementother than those that may be terminated without penalty);
(iiid) Contract agreement, contract, commitment or other legally binding arrangement continuing over a period of more than six twelve months from the date hereof and requiring more than $100,000 in annual payments by a SPAR Marketing Company;
(e) sales representative, sales agency or exceeding $10,000 in value similar agreement, contract, commitment or other legally binding arrangement with any Person not under the employ, control or direction of a SPAR Marketing Company;
(except for f) agreement, contract, commitment or other legally binding arrangement containing a provision to indemnify any Resident/Patient's Agreementperson or entity or assume any tax, environmental or other non-ordinary course liability;
(g) agreement, contract, commitment or other legally binding arrangement with any Governmental Entity (other than a SPAR Permit);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vih) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or contract for the borrowing or lending of money (including without limitation loans to money, or from Employees) or any guarantee, pledge or undertaking of or credit support for the indebtedness of any other Personperson by any SPAR Marketing Company;
(viii) Contract agreement, contract, commitment or other legally binding arrangement for any charitable or political contribution;
(viiij) Contract agreement, contract, commitment or other legally binding arrangement for any capital expenditure or leasehold improvement in excess of $100,000;
(k) agreement, contract, commitment or other legally binding arrangement limiting or restraining Seller restraining:
(i) any SPAR Marketing Company or any successor or assign thereto from engaging in the businesses of the SPAR Parties or PIA Parties post Merger (other than any customer contract not in excess of $100,000 that may contain such a prohibition with respect to the performance of services for the customer's competitors); or (ii) to the knowledge of any SPAR Marketing Company, any employee of any SPAR Marketing Company from engaging in or competing in any likeness with the businesses of business with any Person;
(ix) license, franchise, distributorship the SPAR Parties or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how PIA Parties post Merger on behalf of or used by the BusinessParties; or
(xl) agreement, contract, commitment or other legally binding arrangement of any other material Contract SPAR Marketing Company not made in the ordinary course of Seller's business consistent with past practice. Each (other than as would have been disclosable in one of the preceding clauses but for the amount or term thereof); in each case excluding the SPAR Premerger Agreements, the SPAR Realty Leases, the SPAR Personalty Leases, the SPAR Trademark Licenses, the SPAR Permits and this Agreement (which are not intended, and shall not be deemed or construed, to be SPAR Contracts). Except as otherwise set forth in the SPAR Disclosure Letter: (A) each of the SPAR Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its termsall material respects, Seller andexcept as may be limited by the Bankruptcy Exceptions; (B) each SPAR Marketing Company is, and to Seller's Knowledge any the knowledge of such SPAR Marketing Company, all other party theretoparties thereto are, are in material compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not thereof in default in the performance, observance or fulfillment of any all material obligation, covenant or condition contained therein, respects; and (C) no event SPAR Marketing Company is nor has occurred that with or without the giving of notice or lapse of time, or both, would constitute ever been a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services contract with any Governmental Entity subject to be rendered retroactive price redetermination or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyrenegotiation.
Appears in 2 contracts
Sources: Merger Agreement (Bartels Williams H), Agreement and Plan of Merger (Pia Merchandising Services Inc)
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor 10.1 Section 10.1 of Paragraph 9 (Specific Disclosures) of the Disclosure Letter sets forth a list of each of the following Contracts in effect at the Signing Date to which any party acting on behalf of Seller with Seller's Knowledge and consent Group Company is a party party, save where such Contracts are listed in another section of the Disclosure Letter (such Contracts set forth on such list, together with any purchase Contracts with any supplier listed in Section 13.2 of Paragraph 9 (Specific Disclosures) of the Disclosure Letter and any Contracts with any customer listed in Section 13.1 of Paragraph 9 (Specific Disclosures) of the Disclosure Letter (which purchase and customer Contracts need not be listed in Section 10.1 of Paragraph 9 (Specific Disclosures) of the Disclosure Letter) hereinafter referred to any written or oral (for which Purchaser shall be bound following as the Closing Date“Material Contracts”):
(ia) Any Contract for the future purchase oflease, sub-lease, limited lease or payment for, supplies occupancy of any material Real Property (whether as lessor or products, or for the performance of services by another party, involving in any one case $10,000 or more;lessee).
(iib) Any Contract with any director, officer or employee that is not cancellable by such Group Company on notice to sell be given in compliance with applicable Laws without Liability, penalty or supply products premium of any nature or to perform serviceskind whatsoever or under which such Group Company could incur remaining obligations in excess of $100,000, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);other than a Contract of employment.
(iiic) Other than any Contract continuing over a period with another Group Company, any loan Contract, promissory note, letter of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) notecredit, debenture, bondnote, conditional sale agreementmortgage, equipment trust agreementbank guarantee, letter of credit agreement, loan agreement performance or other Contract or for the borrowing or lending type of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship bond or other agreementevidence of indebtedness or an obligation for borrowed money, including those that relate in whole as a signatory, guarantor or in part to any patentotherwise, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made than bank guarantees and performance bonds in the ordinary course of Seller's business consistent business.
(d) Other than any Contract with past practice. Each another Group Company, any Contract under which a Group Company has guaranteed the payment or performance of any person or entity, agreed to indemnify any person or entity outside the Group (except under Contracts entered into by such Group Company in the ordinary course of business) or to act as a surety, or otherwise agreed to be contingently or secondarily liable for the obligations of any person or entity.
(e) Any consulting, development, joint development, license or similar Contract (i) relating to, or any Contract requiring the assignment or license of any interest in, any material part of the Contracts Group Intellectual Property or (ii) relating to, or any Contract under which any license is granted to a Group Company to use or practice, any material third party Intellectual Property.
(f) Any Contract (i) prohibiting or restricting such Group Company or any of its employees from competing in any business or geographical area, or soliciting customers or employees, or otherwise restricting it from carrying on any business anywhere in the world or (ii) relating to the location of employees or a minimum number of employees to be employed by such Group Company.
(g) Except as disclosed in Clause 10.1, any Contract (or group of related Contracts) of any nature under which there is any consideration or other expenditure payable in any 12 month period in excess of $1,000,000.
(h) Any Contract concerning a partnership or joint venture or any Contract relating to the acquisition or disposition of any corporation, partnership or other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit (whether by merger, sale of stock, sale of assets or otherwise).
(i) Any Contract that is an Affiliate Arrangement.
(1) the CPT Disposition Contract and (2) all schedules, exhibits, annexes, ancillary agreements, side letters and other instrumentsContracts related thereto or entered into in connection therewith; provided, documents that with respect to information described in the foregoing (2) that is subject to a confidentiality obligation of Seller as of the Signing Date, such information need not be provided by the Signing Date but Seller shall use its commercially reasonable endeavours to obtain the consent required to make such information available to Purchaser or Purchaser’s Representatives or insurers as soon as practicable following the Signing Date (subject to entry by the foregoing into customary confidentiality undertakings if required).
10.2 The Seller has made available in the Data Room correct and undertakings complete copies of all Contracts with (a) any material sales representative, dealer, distributor or franchisee, (b) any customer listed on Schedule 1.68 in Section 13.1 of Paragraph 9 (Specific Disclosures) of the Disclosure Letter and Schedule 2.1.4 (c) any supplier listed in Section 13.2 of Paragraph 9 (Specific Disclosures) of the Disclosure Letter.
10.3 No Group Company is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligationrespect under any Material Contract to which it is a party or is otherwise bound, covenant nor has any event or condition contained thereinomission occurred that, and no event has occurred that with through the passage of time or without the giving of notice or lapse of timenotice, or both, would constitute a default by Seller in any material respect thereunder or cause the acceleration of any of such Group Company’s obligations thereunder or result in the creation of any Encumbrance on any of the share capital or other equity securities (including the Sale Shares), or any of the assets, of such Group Company. Except as set forth in Section 10.3 of Paragraph 9 (Specific Disclosures) of the Disclosure Letter and to the Sellers’ knowledge, no third party is in default in any material respect under any Material Contract to which any Group Company is a party or is otherwise bound, nor has any event or omission occurred that, through the passage of time or the giving of notice, or both, would constitute a default in any material respect thereunder, or give rise to an automatic termination, or the right of discretionary termination thereof. Each Material Contract to which any Group Company is a party or is otherwise bound is in full force and effect (except where it has expired in accordance with its terms) and is a valid and binding agreement enforceable against such Group Company and, to Seller's Knowledgethe Sellers’ knowledge, a default by any the other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyparties thereto in accordance with its terms.
Appears in 2 contracts
Sources: Agreement for the Sale and Purchase of the Entire Issued Share Capital, Agreement for the Sale and Purchase of Shares (Cabot Corp)
Contracts and Commitments. Except as listed (a) Schedule 4.10 lists each of the contracts and agreements of the types described on Schedule 1.68 and Schedule 2.1.4below, neither whether written or oral, to which any Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any written or oral is otherwise bound as of the date hereof (for which Purchaser shall be bound following the Closing Date“Material Contracts”):
(i) Contract for all Client engagements and similar arrangements pursuant to which any Seller has agreed to provide services, other than engagements that have been fully performed, all amounts have been fully paid by the future purchase ofClient, and no obligations remain to be performed by any Seller or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or moreClient;
(ii) Contract to sell all management agreements, or supply products contracts prohibiting competition or to perform services, involving in any one case $10,000 the disclosure of Trade Secrets or more (except for any Resident/Patient's Agreement)confidential information;
(iii) Contract all agreements or indentures relating to Indebtedness or placing a Lien on any of the Purchased Assets or letter of credit arrangements;
(iv) all licenses or royalty agreements;
(v) all nondisclosure or confidentiality agreements pursuant to which any Seller is obligated to maintain the confidentiality of, or not to disclose, designated information;
(vi) all leases or agreements under which any Seller is lessee of or holds or operates any personal property leases;
(vii) all broker, distributor, vendor or maintenance agreements;
(viii) all other contracts or group of related contracts with the same party continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representativedates thereof, sales agency, dealer not terminable by such Seller upon 30 days’ or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including less notice without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Personpenalty;
(ix) licenseall consulting, franchisemaintenance or any other similar agreements, distributorship contracts or other agreementcommitments (including any employee leasing or outsourcing arrangement);
(x) all agreements under which independent contractors or subcontractors are retained to provide services to Sellers’ Clients on behalf of Sellers;
(xi) all contracts which prohibit Sellers or, after the Closing, will prohibit Buyers or any of their Affiliates, from freely engaging in business anywhere in the world;
(xii) all contracts with any officer, director, employee, shareholder, or Affiliate of any Seller (or any individual related by marriage or adoption to any such individual or any entity in which any such Person owns any beneficial interest);
(xiii) all agreements relating to ownership of or investments in any business or enterprise, including those that relate investments in whole joint ventures and minority equity investments;
(xiv) all powers of attorney executed by or on behalf of any Seller pursuant to which such Seller has granted another Person authority to act in part such Seller’s name or on such Seller’s behalf;
(xv) all material contracts and licenses (including all inbound licenses) to which any Seller is a party with respect to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the BusinessIntellectual Property Rights; or
(xxvi) any all other agreements material Contract to the Business not made entered into in the ordinary course of Seller's business consistent business.
(b) Sellers have made available to Buyers a true and correct copy of all written Material Contracts (and a true and correct written description of any oral Material Contracts), together with past practiceall amendments, exhibits, attachments, waivers or other changes thereto. Each of the Contracts and other instruments, documents and undertakings listed Except as set forth on Schedule 1.68 and Schedule 2.1.4 4.10, each written Material Contract is valid legal, valid, binding and enforceable by and against such Seller in accordance with its termsterms and is in full force and effect, Seller andexcept as enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity. Except as set forth on Schedule 4.10, neither Sellers nor, to Seller's Knowledge Sellers’ Knowledge, any other party theretoparty, are is in compliance with the provisions thereof, Seller and, to Seller's Knowledge breach or default under any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained thereinMaterial Contract, and no event has occurred that with conditions or without the giving of events exist, such that, after notice or lapse of time, time or both, would constitute a default by Seller thereunder andunder a written Material Contract on the part of Sellers or, to Seller's Sellers’ Knowledge, a default by on the part of any other party thereto; (ii) parties to the Material Contracts, except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments for any breaches, defaults, terminations, modifications, accelerations, conditions or events which have been received by Seller by cured or on behalf of any party waived or which would not be material to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyBusiness.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Heidrick & Struggles International Inc)
Contracts and Commitments. (a) Except as listed and described set forth on Schedule 1.68 3.08(a), as of the Effective Date, the Assumed Contracts and Schedule 2.1.4, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to the DCS Contracts do not include any written or oral (for which Purchaser shall be bound following the Closing Dateeach Contract set forth on Schedule 3.08(a) is referred to herein as a “Material Contract”):
(i) Contract for the future purchase of, or payment for, supplies or products, or for the performance by and between Seller and any Affiliate of services by another party, involving in any one case $10,000 or moreSeller;
(ii) Contract (a) for the employment of any Person on a full-time or part-time basis providing for compensation, including bonus compensation, in excess of $100,000 per annum; (b) relating to sell any independent contractor or supply products other service provider that provides for compensation in excess of $100,000 per annum or (c) a contract related to perform servicesthe employment of any person that requires the Buyer to make any severance payment, involving in any one case $10,000 retention payment or more (except for any Resident/Patient's Agreement)bonus or other payment contingent on the occurrence of a transaction;
(iii) Contract continuing over or indenture relating to Indebtedness or to mortgaging, pledging or otherwise placing a period Lien, other than a Permitted Lien, on any of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)Purchased Assets;
(iv) representativeguaranty of any obligation, sales agency, dealer Indebtedness or distributor ContractLiability of another person;
(v) lease or agreement under which Seller is either lessor lessee of, or lessee other than with respect to holds or operates any Tangible Personal Property, for which the Real Property Leasedannual rental exceeds $100,000;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter lease or agreement under which Seller is lessor of credit agreement, loan agreement or permits any third party to hold or operate any property (other Contract or than Real Property) for which the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Personannual rental exceeds $100,000;
(vii) Contract for any charitable coal sale agreement, or political contributionpurchase order or commitment to sell or offer to sell coal;
(viii) Contract limiting contract or restraining Seller group of related contracts with the same party for the sale or any successor purchase of products (other than coal) or assign from engaging or competing services, under which the undelivered balance of the products and services has a selling price in any likeness excess of $500,000 (other than purchase orders entered into in the ordinary course of business with any Personwhich can be cancelled immediately without penalty to Buyer);
(ix) licenseContract prohibiting or restricting the ability of the Business to conduct its respective business, franchiseto compete in any line of business or to engage in any business or operate in any geographical area;
(x) Contract that will require Buyer (after Closing) to purchase its total requirements of any product or service from a third party or that contains “take or pay” provisions;
(xi) Contract related to the use of any Intellectual Property for or in the Business which requires annual payments in excess of $100,000 and all Contracts permitting other Persons to use or register any Intellectual Property that is included in the Purchased Assets or for which a transfer fee of more than $25,000 will be incurred;
(xii) Contract with respect to a joint venture, distributorship joint development or partnership relationship;
(xiii) Contract that involves any exchange traded, over-the-counter or other agreementswap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including those that relate commodities, emissions allowances, renewable energy credits, currencies, interest rates, foreign currency and other indices, in whole each case other than agreements for the purchase and sale of coal;
(xiv) Contract for acquisitions of membership interests, capital stock, any equity interest or in part assets of another Person (whether by merger, membership transfer, or stock or asset purchase) or for any options to any patent, trademark, trade name, service mark ▇▇ copyright or acquire the same;
(xv) Contract for transportation services;
(xvi) Contract to any ideas, technical assistance or other know-how of or used by the Businesspay an “overriding royalty”;
(xvii) Contract for contract mining; or
(xxviii) Contract to process, store, load, transport or otherwise handle coal produced by any other material Contract not made in the ordinary course Person.
(b) Buyer has been given access to a true and correct copy of Seller's business consistent with past practice. Each of the all Assumed Contracts and DCS Contracts, including all amendments, waivers or other instrumentschanges thereto.
(c) With respect to each Assumed Contract, documents (i) such Assumed Contract is in full force and undertakings listed on Schedule 1.68 effect and Schedule 2.1.4 is a valid and binding obligation of Seller and to Seller’s Knowledge, the other party or parties to such Contract and enforceable against Seller and to Seller’s Knowledge, the other parties to such Contract and (ii) Seller is not in accordance with its termsmaterial default under such Assumed Contract, Seller and to Seller’s Knowledge, the other parties to the Assumed Contracts are not in material default thereunder. With respect to each DCS Contract, (i) such DCS Contract is in full force and effect and is a valid and binding obligation of DCS and is enforceable against DCS, and, to Seller's Knowledge any ’s Knowledge, such DCS Contract is a valid and binding obligation of, and is enforceable against, the other party theretoor parties to such DCS Contract, are and (ii) DCS is not in compliance with the provisions thereofmaterial default under such DCS Contract, Seller and, and to Seller's Knowledge any ’s Knowledge, the other party thereto, parties to the DCS Contracts are not in material default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebythereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Peabody Energy Corp)
Contracts and Commitments. Except as listed Section 3.14 of the Parent Disclosure Schedule contains a complete and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor accurate list of all Contracts of the following categories to which Parent or any party acting on behalf of Seller with Seller's Knowledge and consent its Subsidiaries is a party to or by which any written or oral (for which Purchaser shall be of them is bound following as of the Closing Date):date of this Agreement:
(ia) Contract for the future purchase ofemployment contracts, including, without limitation, contracts to employ executive officers and other contracts with officers, directors or payment forshareholders of Parent, supplies or products, and any other Contracts with or for the performance benefits of services by another partyParent or its affiliates, involving and all severance, change in control or similar arrangements with any officers, employees or agents of Parent that will result in any one case $10,000 obligation (absolute or more;
(iicontingent) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller Parent or any successor or assign from engaging or competing in of its Subsidiaries to make any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part payment to any patentofficers, trademark, trade name, service mark ▇▇ copyright employees or to any ideas, technical assistance or other know-how agents of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or Parent following either the consummation of the transactions contemplated hereby, termination of employment, or both;
(b) Labor contracts;
(c) material distribution, franchise, license, sales, agency or advertising contracts;
(d) Contracts for the purchase of inventory which are not cancelable (without material penalty, cost or other liability) within one (1) year (other than Contracts for the purchase of holiday goods in accordance with customary industry practices) and other Contracts made in the ordinary course of business involving annual expenditures or liabilities in excess of $400,000 which are not cancelable (without material penalty, cost or other liability) within ninety (90) days;
(e) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower, lender or guarantor, in excess of $250,000;
(f) Contracts (other than Leases) containing covenants limiting the freedom of Parent or any of its Subsidiaries to engage in any line of business or compete with any Person or operate at any location;
(g) joint venture or partnership agreements or joint development or similar agreements pursuant to which any third party is entitled to develop any Property and/or Facility on behalf of Parent or its Subsidiaries;
(h) any Contract where the customer under such Contract is a federal, state or local government;
(i) any Contract providing for the acquisition, directly or indirectly (by merger or otherwise) of material assets (other than inventory) or capital stock of another Person; and
(j) Contracts involving annual expenditures or liabilities in excess of $400,000, which are not cancelable (without material penalty, cost or other liability) within ninety (90) days. True copies of the written Contracts identified in Section 3.14 of the Parent Disclosure Schedule have been delivered or made available to the Company.
Appears in 2 contracts
Sources: Merger Agreement (Fred Meyer Inc), Merger Agreement (Quality Food Centers Inc)
Contracts and Commitments. Except as listed and described on (a) Schedule 1.68 and Schedule 2.1.4, neither Seller nor any party acting on behalf 3.18 attached hereto sets forth each contract or other commitment of Seller with Seller's Knowledge and consent is a party to any written AFC or oral (for AB which Purchaser shall be bound following requires an aggregate payment by AFC or AB after the Closing Date):
(i) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period date hereof of more than six months from $100,000, and any other contract or commitment that in the date hereof opinion of the AFC management materially adversely affects the business of AFC or exceeding $10,000 AB. Except for the contracts and commitments described in value (except this Reorganization Agreement or as set forth in Schedule 3.18, neither AFC nor AB is party to or subject to:
1. Any contracts or commitments which are material to its business, operations or financial condition other than loans or agreements with respect thereto entered into in the ordinary course of business;
2. Any employment contract or arrangement, whether oral or written, with any 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 or written, providing for insurance for any Resident/Patient's Agreement)officer or employee or members of their families;
(iv) representative4. Any plan or contract or other arrangement, oral or written, providing for bonuses, pensions, options, deferred compensation, retirement payments, profit-sharing or other benefits for employees;
5. Any contract or agreement with any labor union;
6. Any contract or agreement with customers for the sale of products or the furnishing of services, or any sales agency, dealer broker, distribution or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) notesimilar contract, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not except contracts made in the ordinary course of Seller's business consistent with past practicebusiness;
7. Each Any instrument or 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;
8. Any joint venture contract or arrangement or any other agreement involving a sharing of profits;
9. Any license agreement in which AFC is the licensor or licensee;
10. Any material contract or agreement, not of the Contracts and type covered by any of the other instrumentsitems of this Section 3.18, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 which by its terms is valid and enforceable in accordance with its terms, Seller and, either (i) not to Seller's Knowledge any other party thereto, are in compliance with be performed prior to 30 days from the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of timedate hereof, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by does not terminate, or on behalf of is not terminable without penalty to AFC or AB, or any party successors or assigns prior to any of 30 days from the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebydate hereof.
Appears in 2 contracts
Sources: Reorganization Agreement (Anchor Financial Corp), Reorganization Agreement (Carolina First Corp)
Contracts and Commitments. (a) Except as listed and described on expressly contemplated by this Agreement or as set forth in Schedule 1.68 and Schedule 2.1.47.11(a), neither Seller the Company nor any party acting on behalf of Seller with Seller's Knowledge and consent its Subsidiaries is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):by any:
(i) Contract for the future purchase ofemployment of any officer, individual employee or payment forother Person or Contract relating to loans to officers, supplies directors or products, or for the performance of services by another party, involving in any one case $10,000 or moreAffiliates;
(ii) Contract under which the Company or any of its Subsidiaries has advanced, loaned or extended credit to sell or supply products or to perform services, involving any other Person amounts that in any one case the aggregate exceed $10,000 or more (except for any Resident/Patient's Agreement)10,000;
(iii) Contract continuing over that provides for, or relates to, the incurrence by the Company or any of its Subsidiaries of debt for borrowed money, other Indebtedness or the mortgaging, pledging or otherwise placing a period Lien on any material asset or material group of more than six months from assets of the date hereof Company or exceeding $10,000 in value (except for any Resident/Patient's Agreement)of its Subsidiaries;
(iv) representative, sales agency, dealer Contract that provides for a guarantee of any obligation of any Person or distributor Contractprovides that the Company or any of its Subsidiaries must assume or become liable for any Indebtedness of any Person;
(v) lease Contract under which Seller the Company or any of its Subsidiaries is either lessor lessee of or lessee other than with respect to the Real Property Leased;
(vi) noteholds or operates any property, debenturereal or personal, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of owned by any other Person;
(vi) Contract under which the Company or any of its Subsidiaries is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company or any of its Subsidiaries;
(vii) Contract for assignment, license, indemnification or agreement with respect to any charitable or political contributionintangible property (including any Intellectual Property Rights);
(viii) Contract limiting sales, distribution or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Personfranchise Contract;
(ix) license, franchise, distributorship or other agreement, including those Contract that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used is not terminable by the BusinessCompany or any of its Subsidiaries upon less than 30 days notice without penalty and that involves consideration in excess of $25,000 in any twelve-month period;
(x) Contract that prohibits the Company or any of its Subsidiaries from freely engaging in any business or competing anywhere in the world; or
(xxi) any other Contract that is material Contract not made in to the ordinary course Company’s or any of Seller's its Subsidiaries’ operations or business consistent with past practice. prospects as currently contemplated.
(b) Each of the Contracts and other instrumentslisted in Schedule 7.11(a) (collectively, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is the “Material Contracts”) constitutes a valid and enforceable binding obligation of the Company or, if applicable, one of its Subsidiaries and, to the Knowledge of the Company, of each other party thereto and is in full force and effect and (except for those Material Contracts that by their terms will expire prior to the applicable Closing Date or are otherwise terminated prior to the applicable Closing Date in accordance with its termsthe provisions hereof) will continue in full force and effect after the Closings, Seller in each case without breaching the terms thereof or resulting in the forfeiture or impairment of any rights thereunder and without the consent, approval or act of, or the making of any filing with, any other party. The Company and, if applicable, its Subsidiaries, have fulfilled and performed their material obligations under each Material Contract, and neither the Company nor any of its Subsidiaries is in, or alleged to Seller's be in, default under or breach of, nor is there or is there alleged to be any basis for termination of, any Material Contract, and to the Knowledge any of the Company no other party thereto, are in compliance with to any of the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance Material Contracts has breached or fulfillment of any material obligation, covenant or condition contained thereindefaulted thereunder, and no event has occurred that and no condition or state of facts exists that, with the passage of time or without the giving of notice or lapse of time, or both, would constitute such a default or breach by Seller thereunder andthe Company, any of its Subsidiaries or, to Seller's Knowledgethe Knowledge of the Company, a default by any such other party. Neither the Company nor any of its Subsidiaries has any present expectation or intention of not fully performing all its obligations under each Material Contract, and the Company does not have Knowledge of any anticipated breach by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any Material Contract.
(c) The Company has made available to the Investors a complete and correct copy of each of the Contracts, commitments, leases written Material Contracts and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation an accurate description of the transactions contemplated herebymaterial terms of each of the oral Material Contracts.
Appears in 2 contracts
Sources: Series a Preferred Stock Purchase Agreement (Xstream Systems Inc), Series a Preferred Stock Purchase Agreement (Xstream Systems Inc)
Contracts and Commitments. Except as listed (a) Contracts. Other than this Agreement and the agreements described on the attached Schedule 1.68 and Schedule 2.1.44.9, neither Seller nor any party acting on behalf ATG nor, to the extent that Almedica as the parent corporation of Seller with Seller's Knowledge and consent ATG obligates ATG, Almedica, is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):oral:
(i) Contract pension, 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, welfare or stock plan or arrangement which is not described on the future purchase ofattached Schedule 4.15, or payment for, supplies or productsany contract with any labor union, or for the performance of services by another party, involving in any one case $10,000 or moreseverance agreement;
(ii) Contract to sell contract for the employment or supply products engagement as an independent contractor of any Person on a full-time, part-time, consulting or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)other basis;
(iii) Contract continuing over a period of more than six months from the date hereof contract pursuant to which ATG has advanced or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representativeloaned funds, sales agencyor agreed to advance or loan funds, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(iv) contract or indenture relating to any Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any of the ATG Shares or any of the Assets;
(v) contract pursuant to which ATG is the lessee of, or holds or operates, any real or personal property owned by any other Person;
(vi) contract pursuant to which ATG is the lessor of, or permits any third party to hold or operate, any real or personal property owned by ATG or of which ATG is a lessee;
(vii) Contract for assignment, license, indemnification or other contract with respect to any charitable or political contributionintangible property (including any Proprietary Right) which is material to the Business and is not described on the attached Schedule 4.10;
(viii) Contract limiting contract or restraining Seller agreement with respect to services rendered or goods sold or leased to or from others, other than any successor or assign from engaging or competing customer purchase order accepted in any likeness the ordinary course of business and in accordance with any PersonATG's past practice;
(ix) license, franchise, contract prohibiting ATG from freely engaging in any business anywhere in the world;
(x) independent sales representative or distributorship or other agreement, including those that relate in whole or in part agreement with respect to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(xxi) any executory contract (other than one described in Sections 4.9(a)(i) through 4.9(a)(x)) which is material Contract not made to ATG or involves a consideration in the ordinary course excess of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby$25,000.
Appears in 1 contract
Contracts and Commitments. Except as listed Schedule 4.11 sets forth a correct and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor any party acting on behalf complete list of Seller with Seller's Knowledge and consent all the Contracts of the following types to which the Company is a party or by which it is bound, or to which any written of its assets or oral (for which Purchaser shall be bound following the Closing Date):properties is subject:
(i) collective bargaining agreement or other Contract for the future purchase ofwith any labor union or any bonus, pension, profit sharing, retirement or payment for, supplies or products, or for the performance other form of services by another party, involving in any one case $10,000 or moredeferred compensation plan;
(ii) Contract to sell membership interest purchase, option, profits interest or supply products similar plan or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)Contract;
(iii) Contract continuing over for the employment or retention of any manager, officer, independent contractor, individual employee or other person on a period full-time or consulting basis, including any Contract with any manager, officer, employee or independent contractor with respect to change of more than six months from the date hereof control, retention bonus, severance or exceeding $10,000 in value (except for any Resident/Patient's Agreement)similar benefits;
(iv) representativeany bonus, sales agencypension, dealer profit sharing, retirement or distributor Contractother form of deferred compensation plan;
(v) lease under which Seller is either lessor agreement or lessee other than with respect indenture or similar Contract relating to the Real Property Leasedborrowing of money or to mortgaging, pledging or other Indebtedness or otherwise placing a Lien on any material portion of the Company’s assets;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter guaranty of credit agreement, loan agreement any obligation for borrowed money or other Contract relating to Indebtedness;
(vii) lease or agreement or similar Contract under which it is lessor or lessee of any personal property for which the annual rental exceeds $50,000;
(viii) the Real Property Leases;
(ix) Contract or group of related Contracts with the same party (or Affiliates thereof that are known to be Affiliates of such party by the Company) for the borrowing purchase or lending sale of money products or services, under which the undelivered balance of such products or services has a selling price in excess of $50,000;
(including without limitation loans x) any Contract relating to sales agency, sales representative, distribution arrangements, buying group or from Employeessimilar contracts;
(xi) any commodities future, derivative or guarantee, pledge similar Contract;
(xii) any covenant not to compete or undertaking similar Contract limiting the ability of the indebtedness Company or any of its employees, officers, managers, members or directors to engage in any line of business or to compete with any Person in any respect, including with respect to any Contract purporting to limit in any way the geographic scope of the conduct of the business of the Company, or any of its employees, officers, managers, members or directors;
(xiii) Contracts providing “most favored” pricing, rebates or any exclusive rights with respect to the manufacturing, sale, sales representative or distribution of the products of the Company or the purchase of raw materials or products from third parties;
(xiv) any Contract for the purchase of any fixed asset for a price in excess of $25,000;
(xv) Contracts relating to any capital expenditure or series of related capital expenditures involving more than $10,000 individually, or more than $25,000 in the aggregate;
(xvi) any Contract for the sale or transfer of any of the assets or properties of the Company other than sales of finished goods inventory in the ordinary course of business;
(xvii) Contracts involving any joint venture, partnership, strategic alliance, co-marketing, sharing of profits or losses or similar arrangement;
(xviii) Contracts relating to any acquisition by the Company of any operating business or material portion of the assets or properties of any Person or any capital stock or other equity interest of any other Person;
(viixix) Contract for Contracts containing licenses granted by the Company to any charitable or political contributionIntellectual Property and licenses granted to the Company to the intellectual property of any other Person (excluding readily available, off-the-shelf software requiring aggregate payments of less than $50,000);
(viiixx) Contract limiting any power of attorney or restraining Seller agency agreement or arrangement with any successor Person pursuant to which such Person is granted the authority to act for or assign from engaging on behalf of the Company or competing in any likeness the Company is granted the authority to act for or on behalf of business with any Person;
(ixxxi) licenseany Contract that requires the payment of royalties, franchisecommissions, distributorship finders’ fees or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; orsimilar payments;
(xxxii) any Contract with any Governmental Body, any plan of liquidation or reorganization or any bankruptcy order;
(xxiii) any contract for the disposition of any portion of the assets or business of the Company (other material Contract not made than sales of inventory in the ordinary course of Seller's business consistent with past practice. Each ) or any contract for the acquisition of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge assets or business of any other party thereto, are business (other than purchases of inventory or components in compliance with the provisions thereof, Seller and, to Seller's Knowledge ordinary course of business) or any capital stock or other equity interest of any other party theretoPerson or any contract relating to any merger, are consolidation or reorganization of the Company with any other Person;
(xxiv) any Contract with any Major Customer or Major Supplier; and
(xxv) any other Contract that (A) provides for future payments by the Company in excess of $50,000 per annum, (B) is not terminable by the Company upon notice of thirty (30) calendar days or less without penalty or (C) is otherwise material to the Company. The Company is not in breach or default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that (nor would be with or without the giving of notice or lapse of time, or both) under any Contract listed or summarized on the Schedule 4.11 or required to be listed or summarized on such schedule (each, would constitute a default by Seller thereunder “Material Contract” and, collectively, the “Material Contracts”) and, to Seller's Knowledgethe Knowledge of the Company and Members, a default by any the other party thereto; to each of the Material Contracts is not in breach or default (iinor would be with or without notice or lapse of time, or both) except as thereunder. Each of the Material Contracts is in full force and effect and constitutes the valid and binding obligation of the Company and, to the Knowledge of the Company and Members, the other party(ies) thereto in accordance with its terms. Assuming all consents set forth on Schedule 1.68 4.03(b) are obtained, each Material Contract will continue to be legal, valid, binding, and Schedule 2.1.4 enforceable against Buyer and, to the Knowledge of the Company and Members, the other party(ies) to such Material Contracts, and in full force and effect on the same terms after the Closing. The Company has not repudiated any Material Contract or given or received any written or, to the Knowledge of the Company and Members, oral notice that any party intends to terminate any Material Contract, and to the Knowledge of the Company and Members, no advance payments have been received by Seller by or on behalf of any party to any Material Contract intends to terminate or not renew any such Material Contract. The Company has previously delivered to Buyer correct and complete copies of the all Material Contracts, commitmentstogether with all material amendments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease waivers or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebychanges thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atkore International Holdings Inc.)
Contracts and Commitments. (a) Except as listed and described set forth on Schedule 1.68 and 3.11(a) or Schedule 2.1.43.14(a), neither Seller nor any party acting on behalf none of Seller with Seller's Knowledge and consent the Companies is a party party, or subject, to any written or oral (for which Purchaser shall be bound following the Closing Date):any:
(i) Contract for the future purchase ofagreement relating to any completed or pending business acquisition or divestiture since January 1, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more2017;
(ii) Contract to sell bonus, pension, profit sharing, retirement or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)other form of deferred compensation plan;
(iii) Contract continuing over a period of more than six months from the date hereof equity option or exceeding $10,000 in value (except for any Resident/Patient's Agreement)similar plan;
(iv) representativecontract (A) for the employment of any officer, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement individual employee or other Contract or person by any Company, (B) providing for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness payment of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship cash or other agreement, including those that relate in whole compensation or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default benefits by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or Company upon the consummation of the transactions contemplated hereby, or (C) that provides severance or other benefits from any Company to any person;
(v) agreement under which any of the Companies created, incurred or assumed any Indebtedness (including any conditional sales agreement, sale-leaseback or capitalized lease) or mortgaged, pledged or otherwise granted a Lien on any portion of any of the Companies’ assets, other than the Permitted Liens;
(vi) guaranty of any Indebtedness;
(vii) lease or agreement under which it is lessee of or holds or operates any personal property owned by any other Person, for which the annual rental exceeds $100,000;
(viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $100,000;
(ix) other contract, lease or agreement that cannot be canceled by a Company without penalty or further payment or obligation and without more than ninety (90) days’ notice and with remaining fixed payments in excess of $100,000 under any such contract;
(x) agreement containing covenants that in any way purport to restrict the right of any Company to engage in its current line of business, engage in any line of business, compete with any Person, or solicit customers;
(xi) hedging arrangement or forward, swap, derivatives or futures contract;
(xii) joint venture, partnership, franchise, joint marketing agreement or any other similar contract or agreement (including sharing of profits, losses, costs or liabilities by any Company with any other Person);
(xiii) material licensing agreement or other material contract or agreement with respect to Intellectual Property, including material contracts or agreements with current or former employees, consultants or contractors regarding the appropriation or non-disclosure of any Intellectual Property, other than contracts with less than $100,000 fixed payments remaining;
(xiv) agreement under which any Company has made loans or advances to any other Person, and such advances or loans remain outstanding in an amount of greater than $5,000, except advancement of reimbursable ordinary and necessary business expenses made to directors, managers, officers, employees and independent contractors (including but not limited to advances to owner-operators for vehicle repairs) of any Company in the ordinary course of business;
(xv) contract or agreement with any consultant or employee or any current or former officer, director, manager, equity holder, or Affiliate of the Companies;
(xvi) settlement, excluding worker’s compensation matters, the performance of which will involve payment after the date of this Agreement of consideration in excess of $100,000 or governmental monitoring, consent decree or reporting responsibilities;
(xvii) contracts with Governmental Authorities;
(xviii) contract or agreement, not otherwise covered by the foregoing, that is otherwise material to the Companies, taken as a whole, except for contracts or agreements entered into in the ordinary course of business;
(xix) all other contracts involving aggregate consideration in excess of $100,000 annually that are not terminable by Seller upon notice of ninety (90) days or fewer and not of a type required to be disclosed pursuant to any other clause of this Section 3.10 or
(xx) amendment, supplement and modification (whether oral or written) in respect of any of the foregoing other than amendments, supplements and modifications entered into in the ordinary course of business.
(b) Except as set forth on Schedule 3.11(a) or Schedule 3.14(a), the Companies have made available to Buyer a true, correct and complete copy of each written agreement set forth on Schedule 3.11(a) or Schedule 3.14(a), including all modifications and amendments thereto. Except as set forth on Schedule 3.02, Schedule 3.11(a) or Schedule 3.14(a), with respect to each agreement set forth on Schedule 3.11(a) or Schedule 3.14(a), such agreement: (i) is valid, binding and in full force and effect in all material respects; (ii) will remain unmodified and in full force and effect immediately after the Closing without any right on the part of any counterparty, including with the passage of time or notice, or both, to terminate, modify or impose any penalty as a result of the transactions contemplated hereby; (iii) is and will remain, including with the passage of time or notice, or both, immediately after the Closing enforceable by the applicable Company in accordance with its respective terms (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of equitable remedies); and (iv) none of the Companies, nor, to Sellers’ Knowledge, any other party, is in material breach or default under such agreement. No Company has received any written notice (or to Sellers’ Knowledge, any other notice) of the intention of any party to terminate any agreement listed on Schedule 3.11(a). Except as set forth on Schedule 3.11(a), there are no oral agreements with respect to the subject matter of Schedule 3.11(a) or Schedule 3.14(a) that, individually or in the aggregate, are material to any Company.
(c) Schedule 3.11(c) sets forth a list of the Companies’ ten (10) largest customers (by consolidated revenue) for the 2021 fiscal year (the “Material Customers”). Except as set forth on Schedule 3.11(c), true, correct and complete copies of each transportation contract with a Material Customer, including all modifications and amendments thereto, have been provided to Buyer as of the Closing (collectively, “Customer Contracts”). None of the Companies, nor, to Sellers’ Knowledge, any other party, is in material breach or default under such Customer Contract. Other than customary notice to the applicable Company that such Company must bid to continue to provide services to a customer as part of the customer’s normal bid cycles, no Company has received written notice (or, to Sellers’ Knowledge, any other notice) from any customer party to a Customer Contract that such customer intends to terminate, substantially modify, fail to renew, or reduce volumes substantially under, any such Customer Contract.
(d) Schedule 3.11(d) sets forth a list of the Companies’ ten (10) largest vendors or suppliers (by consolidated expenses) for the 2021 fiscal year (the “Material Vendors”). Except as set forth on Schedule 3.11(d), true, correct and complete copies of the contracts with each Material Supplier, including all modifications and amendments thereto, have been provided to Buyer as of the Closing (collectively, “Vendor Contracts”). None of the Companies, nor, to Sellers’ Knowledge, any other party, is in material breach or default under such contract. No Company has received written notice (or, to Sellers’ Knowledge, any other notice) from any vendor party to a Vendor Contract that such vendor intends to terminate, substantially modify, fail to renew or reduce volumes substantially under any such Vendor Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pam Transportation Services Inc)
Contracts and Commitments. Except as listed (a) Schedule 3.14(a) lists each contract and described on Schedule 1.68 and Schedule 2.1.4agreement related to the Business, neither whether written or verbal, to which Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party as of the date hereof, including the following contracts and agreements related to any written or oral the Business (for which Purchaser shall be bound following such contracts and agreements, together with the Closing DateReal Property Leases, being “Material Contracts”):
(i) Contract for the future any contract or agreement (including purchase of, or payment for, supplies or products, or for the performance orders and acknowledgements) which involves consideration in excess of services by another party, involving in any one case $10,000 or more10,000;
(ii) Contract to sell any management contract or supply products other contract, agreement or to perform services, involving in any one case $10,000 similar arrangement with independent contractors or more (except for any Resident/Patient's Agreement)consultants;
(iii) Contract continuing over a period any contract or agreement relating to Indebtedness and the respective principal amounts outstanding thereunder as of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's of this Agreement);
(iv) representativeany contract or agreement that limits or purports to limit the ability of Seller, sales agencyor of any employees of Seller, dealer to compete in any line of business or distributor Contractwith any Person or in any geographic area or during any period of time;
(v) lease under any contract or agreement (A) that contains any “take or pay” or volume commitment provisions binding upon Seller, (B) that contains provisions granting any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Person other than Seller or (C) in which Seller is either lessor agreed to provide “most favored” or lessee other than preferential treatment with respect regard to the Real Property Leasedprices;
(vi) noteany contract or agreement concerning a partnership or joint venture;
(vii) any employment contracts or agreements, debentureor management, bondconsulting or advisory contracts or agreements with any employee, conditional sale agreement, equipment trust agreement, letter consultant or advisor of credit agreement, loan agreement Seller or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(viiviii) Contract any severance (including early retirement and redundancy) plans or arrangements for any charitable current or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness former employee of business with any PersonSeller;
(ix) license, franchise, distributorship any non-disclosure contracts or agreements and non-compete contracts or agreements or other agreement, including those that relate in whole contracts or in part to any patent, trademark, trade name, service mark ▇▇ copyright agreements containing confidentiality provisions or to any ideas, technical assistance restrictive covenants binding a current or other know-how former employee of or used by the Business; orSeller;
(x) other than the Real Property Leases, any contract or agreement under which Seller is lessee of or holds or operates (A) any real property or (B) any personal property providing for payments in excess of $10,000 annually;
(xi) any contract or agreement under which Seller is lessor of or permits any third party to hold or operate any property, real or personal;
(xii) any contract or agreement relating to the acquisition or divestiture of the capital stock or other equity securities, assets or business of any Person involving Seller or pursuant to which Seller has any Liability;
(xiii) any powers of attorney granted by or on behalf of Seller;
(xiv) any sales or distribution contracts or agreements, franchise contracts or agreements and advertising contracts or agreements relating to Seller;
(xv) any warranty, guaranty or other similar undertaking with respect to a contractual performance extended by Seller;
(xvi) other than employment agreements, any contract or agreement with any of the members of Seller, or Affiliates of Seller or any such members;
(xvii) any contract or agreement under which Seller has advanced or loaned any amount to any of its directors, officers and employees;
(xviii) any contract or agreement pursuant to which Seller has agreed to defend, indemnify or hold harmless any other material Contract Person not otherwise disclosed in Schedule 3.14(a);
(xix) any contract or agreement pursuant to which Seller has agreed to settle any Liability for Taxes;
(xx) any contract or agreement pursuant to which Seller has agreed to shift or allocate the Liability of Seller or any other Person for Taxes;
(xxi) any contract or agreement whereby Seller has entered into an escrow agreement for Seller software;
(xxii) any contracts or agreements with customers for which revenue has been pre-paid;
(xxiii) any contract in which Seller has granted a Person (other than Seller) an exclusive license to any of the Purchased Assets; and
(xxiv) any other contract or agreement, whether or not made in the ordinary course Ordinary Course of Seller's business consistent with past practice. Each Business, which is material to the conduct of the Business.
(b) Purchaser has been supplied with a true and correct copy of all written Material Contracts, together with all material amendments, waivers or other changes thereto, and has been given an accurate written description of all Material Contracts and other instrumentsthat are verbal agreements.
(c) Seller is not a party to: (i) contracts or agreements with any Authority or (ii) contracts or agreements with a non-Authority in support of a contract or agreement with an Authority.
(d) Except as disclosed in Schedule 3.14(d), documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 each Contract: (i) is valid legal, valid, binding and enforceable in accordance with its terms, on Seller and, to the knowledge of Seller's Knowledge , the other parties thereto, and is in full force and effect and (ii) upon consummation of the transactions contemplated by this Agreement, shall continue in full force and effect and shall not give rise to any termination, amendment, acceleration, cancellation, penalty or other adverse consequence. Except as disclosed in Schedule 3.14(d), neither Seller nor, to the knowledge of Seller, any other party thereto, are is in compliance with breach of, or default under, or has repudiated any provision of or is currently making any payments, including payment of liquidated damages, under any Contract (nor does there exist any condition which upon the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance passage of time or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice would (i) cause such a breach of or lapse of time, default under or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by give any third party the right to (A) a rebate, chargeback, refund, credit, claim for royalties, penalty or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to change in delivery schedule under any Contract, commitment(B) accelerate the maturity or performance of any obligation of Seller under any Contract, lease (C) cancel, terminate or other instrumentmodify any Contract). Except as disclosed in Schedule 3.14(d), document or undertaking listed on Schedule 1.68 with respect to each Contract, Seller and Schedule 2.1.4 is required for the execution of this Agreement or the consummation each of the transactions contemplated herebyother parties thereto have complied with the terms and conditions of such Contract.
Appears in 1 contract
Contracts and Commitments. Except as listed (a) Schedule 3.14(a) sets forth a true, correct and described on Schedule 1.68 complete list (by reference to the applicable subsection hereof) of the following currently effective Contracts and Schedule 2.1.4other agreements, neither Seller nor whether written or oral, to which any party acting on behalf of Seller with Seller's Knowledge and consent the Acquired Companies is a party or to any written which an Acquired Company has continuing material obligations or oral (for which Purchaser shall be bound following the Closing Date):material rights:
(i) Contract Contracts for the future purchase oflease, sublease, license, use or payment for, supplies occupancy of real property to or products, or for the performance of services by another party, involving in from any one case $10,000 or morePerson;
(ii) Contract Contracts for the lease of personal property to sell or supply products or to perform services, involving from any Person providing for lease payments after the date hereof in any one case excess of $10,000 or more (except for any Resident/Patient's Agreement)100,000.00 per year;
(iii) Contract continuing over a period Contracts (or group of more than six months from related agreements with the same Person), the performance of which will involve or could result in payments by or to any of the Acquired Companies after the date hereof or exceeding in excess of $10,000 500,000.00, other than purchase orders entered into in value (except for any Resident/Patient's Agreement)the Ordinary Course of Business;
(iv) representativeContracts concerning a partnership, sales agencystrategic alliance, dealer collaboration or distributor Contractjoint venture arrangement with any Person, or the sharing of profits;
(v) lease under which Seller is either lessor or lessee other than with respect Contracts involving a commitment to make any capital expenditure after the Real Property Leaseddate hereof in excess of $100,000.00, except in the Ordinary Course of Business;
(vi) noteemployment, debentureretention, bondpersonal services, conditional sale agreementconsulting, equipment trust agreementindependent contractor, letter of credit agreementseverance, loan agreement bonus, golden parachute or similar Contracts between an Acquired Company and any Employee or other Contract individual service provider (or for former employee or individual service provider, to the borrowing extent of ongoing liability) (A) who or lending which is entitled to compensation thereunder in excess of money $100,000.00 per year or (including B) that cannot be terminated upon notice without limitation loans to further payment, liability or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Personobligation;
(vii) Contract Contracts providing for severance or termination payments upon termination of employment or service or any charitable or political contributionpayments related to a change in control of any of the Acquired Companies or, with respect to any Employees, Seller;
(viii) Contracts under which an Acquired Company has loaned any amount to any Person, other than expense advances in the Ordinary Course of Business to any of its directors, officers or Employees or loans in the Ordinary Course of Business to Employees under the Acquired Companies’ 401(k) plans in accordance with the terms thereof;
(ix) Contracts with a Significant Customer or Significant Supplier (except for purchase orders in the Ordinary Course of Business);
(x) Contracts with any labor union or association representing any Employee, including any collective bargaining Contract, works council or other labor or union Contract limiting or restraining Seller Labor Agreement;
(xi) Contracts providing for the settlement of any Legal Proceeding which have outstanding obligations;
(xii) Contracts with any Authority;
(xiii) each Contract relating to the acquisition or disposition of any Person, material assets or business, including any current or former Subsidiary, division or business of an Acquired Company (whether by merger, consolidation or other business combination, sale of Equity Securities, sale of assets or otherwise) as to which an Acquired Company has continuing material obligations or material rights;
(xiv) any Contract materially prohibiting or restricting an Acquired Company or any successor of its present or assign future Affiliates from competing or engaging or competing in any likeness of business with activity or geographical area or otherwise materially restricting it from carrying on any business activity anywhere in the world or soliciting for employment or engagement or employing or engaging any Person;
(ixxv) any Contract that requires an Acquired Company to deal exclusively with or grant exclusive rights or rights of first refusal or negotiation or similar rights to any customer, vendor, supplier, contractor or other party or that contains a most-favored-nation, best pricing or other similar term or provision by which another party to such Contract is or could become entitled to any benefit, right or privilege which, under the terms of such Contract, must be at least as favorable to such party as those offered to another Person;
(xvi) each Contract that contains any fixed or indexed pricing or provisions regarding minimum volumes, volume discounts, or rebates;
(xvii) each Contract with a Related Party;
(xviii) each Contract with any Person providing any sales, marketing, business generation, brokering, referral or related services to any Acquired Company after the date hereof in excess of $10,000.00 per year;
(xix) any Contract evidencing any Indebtedness, including, without limitation, (A) any guaranty, promissory note or letter of credit issued or posted by an Acquired Company and/or (B) any Contract providing for the creation of any Lien upon any of the properties or assets of an Acquired Company;
(xx) each Contract pursuant to which an Acquired Company is granted or otherwise receives a license, franchisecovenant not to sue, distributorship or other agreement, including those that relate in whole or in part similar right to any patentIntellectual Property owned by any other Person (other than shrink-wrap, trademark, trade name, service mark ▇▇ copyright click-wrap and other non-exclusive licenses or subscriptions for software that is commercially available to the public on standard term with an annual fee or replacement cost of $50,000.00);
(xxi) each Contract pursuant to which an Acquired Company has granted to any ideas, technical assistance Person any license or other knowright related to any Intellectual Property owned or purported to be owned by an Acquired Company (other than non-how exclusive trademark licenses granted to distributors in the Ordinary Course of or used by the Business); orand
(xxxii) any each other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each practice or that is otherwise material.
(b) Complete and accurate copies of the Contracts and other instruments, documents and undertakings listed or required to be listed on Schedule 1.68 3.14(a) (the “Material Contracts”), together with all amendments and Schedule 2.1.4 modifications thereto, have previously been made available to the Purchaser, or, to the extent any of such Contracts are oral, a written description of the material terms thereof have previously been made available to the Purchaser. Each Material Contract is valid in full force and effect, is valid, binding and enforceable in accordance with its terms, Seller except as such enforceability may be limited by the effect of the Bankruptcy and Equity Exception, and is not subject to any claims, charges, set-offs or defenses.
(c) Except as set forth on Schedule 3.14(c), no Acquired Company is in material breach or default under any Material Contract and, to Seller's the Knowledge of the Company, no other Person that is party to any other party theretoMaterial Contract with any Acquired Company is in material breach or default under such Material Contract. Since the Look-Back Date, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that which with or without the giving of notice or lapse the passage of time, time or both, both would constitute a breach or default by Seller thereunder andany Acquired Company of, or which would give rise to Seller's Knowledgeany right of notice, modification, acceleration, payment, cancellation or termination of or by another party under, or in any manner release any party thereto from any obligation under, any Material Contract. To the Knowledge of the Company, no event has occurred which with the giving of notice or the passage of time or both would constitute a breach or default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received party, or which would give rise to any right of notice, modification, acceleration, payment, cancellation or termination of or by Seller by any Acquired Company under, or on behalf of in any manner release any party thereto from any obligation under, any Material Contract. In the past twenty-four (24) months, no Acquired Company has received any written, or to the Knowledge of the Company, other, notice regarding any actual or alleged violation or breach of, or default under any Material Contract. In the past twenty-four (24) months, no Acquired Company has received any written, or to the Knowledge of the Company, other, notice, nor does any Acquired Company have any Knowledge that, a counterparty to any of the ContractsMaterial Contract is terminating, commitmentsnot renewing, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services modifying, repudiating or rescinding, or intends to be rendered terminate, not renew, modify, repudiate or products to be delivered to rescind such party after the Closing Date; and Material Contract.
(iiid) no consent or approval of any party No Acquired Company has represented to any Contractother Person that it is, commitmentor has at any time derived any revenue from any business or any Contracts awarded due to any designation as, lease or by virtue of meeting any Person’s definition of, “female owned,” “minority owned,” “military veteran owned” or “small business” or any similar designation or other instrument, document set-aside or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebypreferential program.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Ceco Environmental Corp)
Contracts and Commitments. Schedule 5.9 contains an accurate and complete list of all Contracts to which Seller is a party and which are to be included in the Assets. Each Contract set forth on Schedule 5.9 is in full force and effect; there is no existing default under any of such Contracts on the part of Seller, or, to the best of Seller’s knowledge, any other party thereto. Except as listed and described set forth on Schedule 1.68 and Schedule 2.1.45.9:
(a) Seller is not a party to or bound by any loan, neither 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 Assets;
(b) 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 Seller;
(c) Seller does not have nor is Seller currently negotiating any party acting on behalf 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) Seller with Seller's Knowledge and consent is not a party to any written joint venture agreement or oral other agreement involving the sharing of profits relating to the Business and/or the Assets;
(for which Purchaser shall be bound following the Closing Date):
e) Seller is not a party to any (i) Contract contracts or commitments for capital expenditures outside the ordinary course of business or involving obligations on the part of Seller in amounts inconsistent with those incurred by Seller in the ordinary course of business in accordance with Seller’s prior operation of the Business, (ii) Lease under which personal property is leased to or from Seller in connection with the Business, (iii) continuing contract for the future purchase ofof Inventory or other materials, supplies, machinery or payment forequipment in excess of the requirements of the Business conducted in the ordinary course, supplies or productsconsistent with the historical operation of the Business, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representativeother contract or agreement which involves an obligation on the part of Seller, sales agencyeither individually or in the aggregate, dealer or distributor Contract;
in excess of amounts previously incurred by Seller in the ordinary course of business or, (v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract contract not made in the ordinary course of business;
(f) Seller is not party to any Contract limiting the freedom of Seller or any of its employees to engage in any line of business or to compete with any Person, and to the knowledge of Seller's business consistent , no employee of Seller is subject to any such restrictions;
(g) Seller is not a party to any Contract in connection with past practice. Each the Business which involves aggregate expenditures of the $5,000 or more and is not cancelable without penalty within thirty (30) days, except for those yellow page agreements and telephone service contracts specifically identified as “Contracts and other instruments, documents and undertakings listed above $5,000” on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, 5.9;
(h) There are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment no persons holding powers of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of timeattorney from, or both, would constitute a default by Seller thereunder and, otherwise authorized to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or act on behalf of any party Seller with respect to any of the Business or the Assets except for its respective officers and other management personnel regularly performing their business functions; and
(i) Seller is current with respect to all payments due under the Contracts, commitments, leases and other instruments listed . Except as specifically identified on Schedule 1.68 and Schedule 2.1.4 for services 5.9, Seller has no knowledge that any Contract, Lease, or other obligation to be rendered which Seller is a party, individually or products in the aggregate: (i) will result in a material loss to be delivered to such party the Buyer after the Closing Date; and (ii) cannot readily be performed or fulfilled on time without undue or unusual expenditure of money or effort by the Buyer after the Closing Date, or (iii) no consent is not in full force and effect and there exists a default or approval event of default or event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any party 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 Seller required to be set forth on any Contract, commitment, lease Schedule hereto has been or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the will be delivered to Buyer by Seller no later than five (5) days after execution of this Agreement or Agreement. Also set forth on Schedule 5.9 is a list of all proposals, except proposals made by Seller’s sales people in the consummation ordinary course of the transactions contemplated herebybusiness, submitted by Seller to any third party that, if accepted by such third party, would require disclosure on Schedule 5.9.
Appears in 1 contract
Sources: Asset Purchase Agreement (Teletouch Communications Inc)
Contracts and Commitments. (a) Except for this Agreement and the matters specifically contemplated by this Agreement, and except as listed and described on set forth in Schedule 1.68 and Schedule 2.1.44.11(a), neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent respect to the Business, the Company is not a party to any or bound by, and the Purchased Assets are not bound by, whether written or oral (for which Purchaser shall be bound following the Closing Date):oral, any:
(i) collective bargaining agreement or Contract for the future purchase ofwith any labor union or any bonus, commissions, pension, profit sharing, retirement or payment forany other form of deferred compensation plan or any stock purchase, supplies stock option, hospitalization insurance or productssimilar plan or practice, whether formal or for the performance of services by another party, involving in any one case $10,000 or moreinformal;
(ii) Contract to sell for the employment of any Transferred Employees listed on Schedule 7.7(a) on a full-time or supply products consulting basis or to perform servicesany notice, involving in any one case $10,000 severance or more (except for any Resident/Patient's Agreement)change-of-control agreements;
(iii) Contract continuing relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any of the Purchased Assets;
(iv) license or royalty Contract;
(v) guaranty of any obligation, other than endorsements made for collection;
(vi) Material Contract with a customer or supplier;
(vii) Material Contract under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments 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) Material Contract for the purchase or sale of supplies, products or other personal property or for the furnishing or receipt of services which calls for performance over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person60 calendar days;
(ix) licenseMaterial Contract with any Person for the purchase or supply of vegetables or any other product, franchiseor ingredient or material used in a product, distributorship of the Business;
(x) Material Contract for the co-packaging or similar arrangement for any product of the Business;
(xi) Contract which prohibits the Company from freely engaging in the Business anywhere in the world;
(xii) Material Contract relating to the distribution (including with respect to systems, routes or networks), marketing or sales of the Company’s products;
(xiii) Material Contract pursuant to which the Company 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 which is Material;
(xviii) any other agreementMaterial Contract not already listed under one of the subsections above that involves future payments, including those performance by the Company of services or delivery by the Company of goods or materials;
(xix) any other Material Contract not already listed under one of the subsections above that relate in whole or in part is material to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(xxx) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each amendment, waiver or modification to any of the Contracts foregoing.
(b) Except as disclosed in Schedule 4.11(b) or as would not reasonably be expected to result in a Material Adverse Effect, (i) 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 other instrumentsthe Company has no Knowledge of any anticipated breach, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge default or cancellation by any other party theretoto any Contract set forth or required to be set forth on Schedule 4.11(a), are (ii) the Company has performed all the obligations required to be performed by it in compliance connection with the provisions thereofContracts disclosed on, Seller andand the Contracts required to be disclosed on, to Seller's Knowledge any other party thereto, are Schedule 4.11(a) and is not in default under or in the performance, observance or fulfillment breach of any material obligation, covenant or condition contained thereinsuch Contract, and no event has occurred that which with the passage of time or without the giving of notice or lapse both would result in a default or breach thereunder, (iii) the Company does not have a present expectation or intention of timenot fully performing any obligation pursuant to any Contract set forth on, or bothany Contract that is required to be set forth on, would constitute a default by Seller thereunder Schedule 4.11(a), and (iv) each Contract with respect to the Business that is disclosed on, or required to be disclosed on Schedule 4.11(a) is legal, valid, binding, existing, enforceable and in full force and effect and, to Seller's the Company’s Knowledge, a default by any other party thereto; (ii) except will continue as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or following the consummation of the transactions contemplated hereby.
(c) The Company has provided Buyer with a true and correct copy of all written 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) Except as listed and described set forth on Schedule 1.68 5.14 with respect to the Business or the Purchased Assets, and Schedule 2.1.4except as a result of the transactions contemplated by this Agreement, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is not a party to any written oral or oral (for which Purchaser shall be bound following the Closing Date):written:
(i) Contract management agreement, contract for the future purchase ofemployment of any officer, individual employee or payment forother person on a full-time, supplies part-time or products, consulting basis or providing for the performance payment of services by another party, involving in any one case $10,000 cash or moreother compensation or benefits upon the sale of the Business or the Purchased Assets;
(ii) Contract agreement pursuant to sell which any current or supply products former employee is entitled to payment for a covenant not to compete with Seller or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)the Business;
(iii) Contract continuing over agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a period material Lien on any of more than six months from the date hereof Seller’s assets or exceeding $10,000 in value (except for any Resident/Patient's Agreement)letter of credit arrangements;
(iv) representative, sales agency, dealer agreements with respect to the lending or distributor Contractinvesting of funds;
(v) lease under which Seller is either lessor license or lessee other than with respect to the Real Property Leasedroyalty agreements;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness guaranty of any obligation for borrowed money, other Personthan endorsements made for collection;
(vii) Contract for lease or agreement under which Seller is lessee of or holds or operates any charitable property, real or political contributionpersonal, owned by any other party;
(viii) Contract limiting lease or restraining agreement under which Seller is lessor of or permits any successor third party to hold or assign from engaging operate any property, real or competing in any likeness of business with any Personpersonal, owned or controlled by Seller;
(ix) licensedistributor, franchisevendor or customer agreements;
(x) contract which prohibits Seller from freely engaging in the Business anywhere in the world;
(xi) contract relating to the marketing, distributorship sale, advertising or promotion of its products or services;
(xii) franchise or agency agreements;
(xiii) contract with any officer, director, manager, member, shareholder, parent or other agreement, including those that relate in whole Affiliate;
(xiv) warranty agreement with respect to products sold or in part indemnity agreement with any supplier or customer under which Seller is obligated to any patent, trademark, trade name, service mark ▇▇ copyright indemnify such supplier or to any ideas, technical assistance or other know-how of or used by the Businesscustomer against liability claims; or
(xxv) agreements relating to ownership of or Investments in any other material Contract not made business or enterprise, including Investments in the ordinary course of Seller's business consistent with past practice. Each joint ventures and minority equity investments.
(b) All of the Contracts contracts, leases, agreements and other instruments, documents and undertakings listed instruments set forth or required to be set forth on Schedule 1.68 and Schedule 2.1.4 is valid 5.14 are valid, binding and enforceable in accordance with its termstheir respective terms except to the extent that the enforcement thereof may be subject to the application of Equitable Principles. Except as set forth on Schedule 5.14, (i) Seller and, has substantially performed all obligations required to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are be performed by it and is not in default under or in the performance, observance or fulfillment breach of nor in receipt of any material obligationclaim of default or breach under any contract, covenant lease, agreement or condition contained therein, and instrument to which Seller is subject; (ii) no event has occurred that which with the passage of time or without the giving of notice or lapse both would result in a default, breach or event of time, or both, would constitute a default noncompliance by Seller thereunder andunder any contract, lease, agreement or instrument to Seller's Knowledge, a default by any other party theretowhich Seller is subject; (iiiii) except Seller, as set forth on Schedule 1.68 of the date hereof, has no present expectation or intention of not fully performing all such obligations; and Schedule 2.1.4 (iv) Seller has no advance payments have been received by Seller by or on behalf Knowledge of any breach or anticipated breach by the other parties to any contract, lease, agreement, instrument or commitment to which it is a party. Seller is not a party to any contract, agreement or commitment the performance of which could reasonably be expected to have a Material Adverse Effect.
(c) Schedule 5.14 sets forth each contract, commitment or obligation of Seller, which is secured by a letter of credit, performance bond, guarantee or the Contractslike (other than guarantees of Seller) and the nature and amount of such security.
(d) Buyer has been afforded an opportunity to review, commitmentsand if so requested by Buyer, leases to receive a true and other instruments listed correct copy of all written contracts (and a true and correct written description of all oral contracts) which are referred to on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract5.14, commitmenttogether with all amendments, lease exhibits, attachments, waivers or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebychanges thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sterling Construction Co Inc)
Contracts and Commitments. Except as listed (a) The Companies have previously furnished a true, correct and complete list of each of the agreements, contracts, commitments or instruments described below and, to the extent indicated on Schedule 1.68 such list, true, correct and Schedule 2.1.4complete copies of the indicated agreements, neither Seller nor contracts, commitments or instruments (or, in the case of an oral agreement, contract or commitment, a written description thereof) described below to which any party acting on behalf of Seller with Seller's Knowledge and consent Company or any Subsidiary thereof is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):party:
(i) Contract for agreement, contract, commitment or instrument which is material to its operations, business or financial condition or which by the terms of such agreement, contract, commitment or instrument can reasonably be expected to require future purchase ofpayment or receipt (other than those described in Section 2.1.9(iii)) by any Company or Subsidiary thereof, or payment forof any of them collectively, supplies or products, or for the performance of services by another party, involving in any one case $10,000 100,000 or more;
(ii) Contract agreement, contract or commitment with any distributor, dealer, manufacturer's representative, sales representative, service or warranty representative and other person, firm or corporation engaged in the sale, distribution, service or repair of its products;
(iii) agreement, contract or commitment to sell or supply products or to perform services, services involving receipt of payments of $100,000 in any one case $10,000 year other than those agreements, contracts or more (except for commitments to which any Resident/Patient's Agreement);
(iii) Contract continuing over Company or any Subsidiary of any Company is a period party which are on one of more than six months from the date hereof Companies standard form contracts without any material alteration or exceeding $10,000 deviation to such form and in value (except for any Resident/Patient's Agreement)which event a copy of the particular standard form contract has been provided to Purchaser;
(iv) representative, sales agency, dealer lease under which any Company or distributor Contractany Subsidiary thereof is either lessor or lessee;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract contract or commitment for the borrowing or lending of money (including without limitation loans to or from Employees) agreement or arrangement for a line of credit or guarantee, pledge or undertaking of the indebtedness of any other Personperson;
(viivi) Contract agreement, contract or commitment for any charitable or political contribution;
(vii) commitment or agreement for any capital expenditure or leasehold improvement in excess of $150,000;
(viii) Contract agreement, contract or commitment limiting or restraining Seller it, or any successor or assign thereto from engaging or competing in any likeness manner or in any business, nor, to its knowledge, is any employee of business with it subject to any Personsuch agreement, contract or commitment;
(ix) license, franchise, distributorship or other agreement, including those that relate agreement which relates in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how Intellectual Property (as defined in Section 2.1.11) of or used by any Company or any Subsidiary thereof which are or could reasonably be considered material to the Business; orbusiness of any Company or any Subsidiary thereof;
(x) joint venture, partnership or similar agreement to which it is a party in any way providing for the manufacture, marketing or sale of any products of any Company or any Subsidiary thereof;
(xi) agreement, contract or commitment granting registration rights to any person with regard to any capital stock or any option, warrant or other similar right or any other security; and
(xii) material Contract agreement, contract or commitment not made in the ordinary course of Seller's business consistent with past practice. business.
(b) Each of the Contracts agreements, contracts, commitments, leases, plans and other instruments, documents and undertakings (the "Contracts") listed or required to be listed on Schedule 1.68 and Schedule 2.1.4 2.1.9(a) or not required to be listed therein because of the amount thereof is valid and enforceable in accordance with its terms; each Company and Subsidiary thereof is, Seller andand to the Companies' knowledge all other parties thereto are, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof; no Company or Subsidiary thereof is, Seller and, and to Seller's Knowledge any the Companies' knowledge no other party theretothereto is, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, therein except where such defaults (individually or in the aggregate) do not have and could not reasonably be expected to have a material adverse effect on the Company or Subsidiary involved; and no event has occurred that which with or without the giving of notice or lapse of time, or both, would be reasonably likely to constitute a default by Seller thereunder andthereunder. Furthermore, to Seller's Knowledgeno such agreement, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contractcontract, commitment, lease lease, plan or other instrument, document or undertaking undertaking, in the reasonable opinion of the Companies, contains any contractual requirement with which there is a reasonable likelihood that the Companies or any other party thereto will be unable to comply except where such failures (individually or in the aggregate) to be in compliance could not reasonably be expected to have a material adverse effect on the Company or Subsidiary involved. Except as listed on Schedule 1.68 and 2.1.9(b), no written or oral Contract described or required to be described on Schedule 2.1.4 is required for 2.1.9(a) requires the execution consent of this Agreement or the consummation of any party in connection with the transactions contemplated hereby.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cooperative Computing Inc)
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.42.1.3, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is not a party to any written or oral (related to or in connection with the Purchased Assets or Business and for which Purchaser shall be bound following the Closing Date):
(i) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or moremore (and not terminable by Seller or Purchaser without penalty or liability on no more than 90 days notice);
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's AgreementAgreement or any other agreement terminable by Seller or Purchaser without penalty or liability on no more than 90 days notice);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's AgreementAgreement or any other agreement terminable by Seller or Purchaser without penalty or liability on no more than 90 days notice);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease (other than the Facility Leases) under which Seller is either lessor or lessee other involving an annual payment of more than with respect to the Real Property Leased;$10,000; 24
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign (including Purchaser) from engaging or competing in any likeness kind of business with any Person;Person (except as disclosed on Schedule 6.8); or
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 2.1.3 is valid and enforceable in accordance with its termsterms in all material respects, Seller and, to Seller's Knowledge any other party thereto, are is in compliance with the provisions thereofthereof in all material respects, Seller and, to Seller's Knowledge any other party thereto, are is not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute such a default by Seller thereunder andor, to Seller's Knowledge, a material default by any other party thereto; (ii) except . Except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments otherwise listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) 2.1.3, no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 2.1.3 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Contracts and Commitments. (a) Except for contracts with Providers, which are addressed exclusively in Section 4.20, or as listed and described set forth on Schedule 1.68 and Schedule 2.1.44.10(a), neither Seller the Company nor any party acting on behalf of Seller with Seller's Knowledge and consent its Subsidiaries is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):by any:
(i) Contract for the future purchase ofcollective bargaining agreement or any other contract with any labor union, or payment forseverance agreements, supplies programs, policies or products, or for the performance of services by another party, involving in any one case $10,000 or morearrangements;
(ii) Contract contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis (other than offer letters entered into in the ordinary course of business); or contract relating to sell loans to officers, directors or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)Affiliates;
(iii) Contract continuing over a period of more than six months from the date hereof contract providing for retention, change in control or exceeding $10,000 in value (except for any Resident/Patient's Agreement)similar payments;
(iv) representative, sales agency, dealer contract under which the Company or distributor Contractany of its Subsidiaries has advanced or loaned money to any Person (other than advances of expenses made to employees in accordance with the Company’s policies and past practices);
(v) lease under which Seller is either lessor contract or lessee indenture relating to borrowed money or other than with respect to Indebtedness or the Real Property Leasedmortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company or any of its Subsidiaries;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness guarantee of any other Personobligation;
(vii) Contract for any charitable a financial derivatives master agreement or political contributionconfirmation, or futures account opening agreements and/or brokerage statements, evidencing financial hedging or similar trading activities;
(viii) Contract limiting lease or restraining Seller agreement under which the Company or any successor of its Subsidiaries is lessee of or assign from engaging holds or competing in operates any likeness property, real or personal, owned by any other party, except for any lease of business with any Personreal or personal property under which the aggregate annual rental payments do not exceed One Hundred Thousand Dollars ($100,000);
(ix) license, franchise, distributorship lease or other agreement, including those that relate in whole agreement under which the Company or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of its Subsidiaries is lessor of or used permits any third party to hold or operate any property, real or personal, owned or controlled by the Business; orCompany or any of its Subsidiaries;
(x) assignment, license, indemnification or other agreement with respect to any material intangible property (including, without limitation any Intellectual Property);
(xi) agreement relating to the transfer or voting of, or granting any Person any registration rights with respect to shares of capital stock, security or equity interests in the Company or any of its Subsidiaries (including, without limitation, demand and piggyback registration rights);
(xii) sales, distribution or franchise agreement;
(xiii) contract, agreement or other arrangement with any officer, director, stockholder, partner, employee, or Affiliate, or any Affiliate of any officer, director, stockholder, partner, or employee (other than any contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis or any ordinary course employment related benefits for employees which do not involve annual expenditures in excess of One Hundred Thousand Dollars ($100,000) in the aggregate);
(xiv) contract or agreement prohibiting the Company or any of its Subsidiaries from freely engaging in any business or competing anywhere in the world;
(xv) any contract for the acquisition, sale or lease of properties or assets (by merger with another Person, purchase or sale of stock, membership interests, assets or similar agreement);
(xvi) a “standstill” or similar agreement;
(xvii) a contract by which any Person other than a Securityholder is entitled to receive any portion of the Merger Consideration, other than as an item of Indebtedness or Company Transaction Expense;
(xviii) a partnership or joint venture contract;
(xix) contracts granting a right of first refusal or first negotiation;
(xx) any contract with any Governmental Authority;
(xxi) to the extent material Contract not made in to the business or financial condition of the Company or any of its Subsidiaries, any (1) product design or development contract, (2) indemnification contract outside of the ordinary course of Seller's business consistent with past practice. business, or (3) license or royalty contract;
(xxii) any other agreement not otherwise described in paragraphs (i) - (xxi) of this Section 4.10(a) which involves consideration in excess of Two Hundred Fifty Thousand Dollars ($250,000) annually; and
(xxiii) commitments or arrangements to enter into any of the foregoing.
(b) Each of the Contracts contracts, agreements and other instruments, documents and undertakings instruments required to be listed on Schedule 1.68 and Schedule 2.1.4 4.10(a), together with each contract of such type entered into in accordance with Section 6.1, is valid a “Material Contract.” Each of the Material Contracts is legal, valid, binding and enforceable in accordance with its termstheir respective terms against the Company or any Subsidiary, Seller as applicable, and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Company’s Knowledge, the other parties thereto. Schedule 4.10(b) sets forth an accurate and complete list of all Vendor Contracts which contain provisions that would give rise to a default right of termination by any other party thereto; (ii) except such counterparty as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any a result of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of entry into this Agreement or the consummation of the transactions contemplated hereby, i.e., as a result of change in control provisions (the “Change In Control Vendor Contracts”). Except as identified in Schedule 4.10(b), no approval, consent or waiver of, or notice to, any Person is needed in order for any Material Contract (including any Change In Control Vendor Contract) to continue in full force and effect following the consummation of the transactions contemplated by this Agreement. The Company and its Subsidiaries have each performed all material obligations required to be performed by them and are not in material default under or in material breach of (nor to the Company’s Knowledge, does any condition exist that with notice or lapse of time or both would constitute a material default by the Company or its Subsidiaries) nor in receipt of any claim of material default or material breach under any such Material Contract; neither the Company nor any of its Subsidiaries has any present expectation or intention of not fully performing all such obligations; and neither the Company nor any of its Subsidiaries has Knowledge of any material breach by the other parties to any such Material Contract to which it is a party, nor to the Company’s Knowledge, does any condition exist that with notice or lapse of time or both would constitute a material default by any such other party thereunder. Neither the Company nor any of its Subsidiaries have received any written notice of termination or cancellation under any Material Contract or granted to any third party any rights, adverse or otherwise, that would constitute a material breach of any Material Contract.
(c) Purchaser has been supplied with a true and correct copy of each of the Material Contracts in existence as of the date hereof, together with any and all amendments and material supplements thereto and material “side letters” and similar documentation relating thereto, together with all amendments thereto.
(d) The Company and each of its Subsidiaries has satisfied all performance standards under any Material Contract where it is required to do so and to the Company’s Knowledge (i) neither the Company nor its Subsidiaries are required to return any fees or payments received by it or to provide credits against any future fees or payment that would otherwise be due to it under any Material Contract, and (ii) neither the Company or the Subsidiaries are subject to any penalties under any such Material Contract, by reason of its failure to satisfy any performance standard contained in such Material Contract.
Appears in 1 contract
Contracts and Commitments. Except as listed Schedule 3.20 hereto contains a complete, current and described on Schedule 1.68 correct list of all material contracts, commitments, obligations or agreements of the Sellers relating to the operations of the Business, and Schedule 2.1.4all amendments thereto, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any whether written or oral (for the “Contracts”). For purposes of this Section 3.20, a contract which Purchaser is “material” to the Business shall be bound following the Closing Date):include any single contract, whether written or oral:
(ia) Contract for the future purchase ofor sale of raw materials, commodities, supplies, inventory, products or payment for, supplies or productsother tangible personal property, or for the furnishing or receipt of services, the performance of services by another party, involving in any one case $10,000 or more;
which (iii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing will extend over a period of more than six months from one year, or (ii) involves consideration in excess of $10,000;
(b) which constitutes a consulting or similar agreement having a term greater than one year or which constitutes an employment agreement or an agreement which calls for severance payments;
(c) which constitutes an agreement by the date hereof Sellers to pay an employee or exceeding $10,000 in value former employee compensation (except for including any Resident/Patient's Agreementbonus but excluding any benefits made available to Seller’s employees generally);
(ivd) representative, sales agency, dealer which constitutes an agreement which restricts the Sellers from carrying out its business anywhere in the world or distributor Contractfrom competing with any other person or which is a confidentiality or non-disclosure agreement;
(ve) lease under which Seller is either lessor or lessee other than constitutes an agreement by the Sellers with respect to the Real Property Leasedany affiliate;
(vif) notewhich constitutes a franchising, debenturepartnership, bond, conditional sale joint venture or similar agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(viig) Contract for any charitable which is a lease or political contributionother agreement relating to real property, including the Leased Real Property;
(viiih) Contract limiting which relates to indebtedness for borrowed money or restraining Seller indemnification or any successor guarantee of the Sellers (including any letter of credit) or assign from engaging which grants any Encumbrance (other than a Permitted Encumbrance) on any assets, rights or competing in any likeness properties of business with any Personthe Sellers, or which is a tax sharing or similar agreement;
(ixi) licensewhich deals with any environmental investigations or remediations;
(j) which is a license or similar agreement for intellectual property, franchise, distributorship whether as licensee or licensor;
(k) which constitutes a union or other collective bargaining agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or;
(xl) any other material Contract not made in which includes or constitutes a power of attorney;
(m) which requires the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf consent of any party thereto to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby;
(n) which was entered into other than in the ordinary course of business; or
(o) where the consequences of a breach or default thereunder, or the termination, expiration or cancellation thereof, could reasonably be expected to result in a Material Adverse Effect. True, correct and complete copies of all written Contracts described on Schedule 3.20 have been delivered to the Buyer, together with a complete written description of any oral Contract. Each of the Contracts (including the Real Property Leases) is legal, valid and in full force and effect and is valid, binding and enforceable by the Sellers, as applicable, in accordance with its terms. Except as set forth on Schedule 3.20, the Sellers are not in material default under and has not materially breached any of the Contracts or any other contracts of the Sellers and no act or omission has occurred which, with notice or lapse of time or both, would constitute a material breach or default under any term or provision of any such Contract. To the knowledge the Sellers, no other party is in material breach or default under any of such Contracts, and no act or omission has occurred by any other party thereto which, with notice or lapse of time or both, would constitute such a material breach or default under any term or provision thereof.
Appears in 1 contract
Contracts and Commitments. (a) Except as listed and described on set forth in Section 3.16 or in the "Contracts Schedule" attached hereto as Schedule 1.68 and 3.10(a) or in the "Customer Contracts Schedule" attached hereto as Schedule 2.1.43.10(d), neither no Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):any:
(i) Contract for the future purchase ofbonus, pension, profit sharing, retirement or deferred compensation plan or stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal, or payment for, supplies severance agreements or products, or for the performance of services by another party, involving in any one case $10,000 or morearrangements;
(ii) Contract to sell contract with any labor union or supply products contract for the employment of any officer, individual employee or to perform servicesother person on a full-time, involving in any one case $10,000 part-time or more (except for any Resident/Patient's Agreement)consulting basis;
(iii) Contract mortgaging, pledging or otherwise placing a lien on any of the Purchased Assets;
(iv) guarantee of any obligation for borrowed money or otherwise, other than endorsements made for collection in the ordinary course of business;
(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;
(viii) 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 other than the Customer Contracts (as defined in Section 3.10(d) hereof);
(x) other contract related to the Business with any party continuing over a period of more than six months from the date hereof or exceeding $10,000 in value dates thereof, not terminable by it on thirty (except for any Resident/Patient's Agreement)30) days' or less notice without penalties;
(ivxi) representative, sales agency, dealer or distributor Contractcontract which prohibits it from freely engaging in business anywhere in the world;
(vxii) lease under which Seller is either lessor or lessee other than with respect contract relating to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter distribution or production of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans its products as it relates to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(xxiii) any other material Contract agreements related to the Business whether or not made entered into in the ordinary course of Seller's business consistent with past practice. Each business.
(b) Except as specifically disclosed in the Contracts Schedule or the Customer Contracts Schedule, (i) to Sellers' knowledge, 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, 1997, no supplier of the Contracts Business has notified Sellers that it shall stop or decrease in any material respect the rate of business done with Sellers, (iii) Sellers have in all material respects performed all the obligations required to be performed by them to the date of this Agreement and are not in receipt of any claim of default under any material lease, contract, commitment or other instruments, documents and undertakings agreement listed on Schedule 1.68 and 3.10(a) or Schedule 2.1.4 is valid and enforceable in accordance with its terms3.10(d) hereof, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and (iv) no event has occurred that which with the passage of time or without the giving of notice or both would result in a breach or default under any lease, contract, instrument or other agreement listed on Schedule 3.10(a) or Schedule 3.10(d); and (v) Sellers are not a party to any contract which is adverse to the Business's operations, 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 Contract Schedule and Customer Contracts Schedule, together with all amendments, waivers or other changes thereto.
(d) Sellers have no knowledge of any (i) pending or threatened termination, cancellation, limitation, modification or change in any of Sellers' 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 could result in the loss of any customers related to the Business after the date hereof. Each contract, agreement or lease with customers of any Seller relating to the Business ("Customer Contracts") is listed on the "Customer Contract Schedule" attached hereto as Schedule 3.10(d). 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 or event or condition which, with notice or lapse of time, time or both, would constitute a 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 Seller thereunder andcourse of conduct, to Seller's Knowledge, a default by (D) no Customer Contract requires the consent of the Customer or any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by to affect a valid assignment thereof to Purchaser without causing a default or on behalf giving rise to a right of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; termination thereunder and (iiiE) no consent or approval of any party to any Contracteach Customer Contract complies with all applicable laws, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 rules and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyregulations.
Appears in 1 contract
Sources: Asset Purchase Agreement (Clark/Bardes Holdings Inc)
Contracts and Commitments. Except as listed and described (a) Set forth on Schedule 1.68 4.12(a) (each Contract set forth on Schedule 4.12(a) and each Contract that is required to be listed on Schedule 2.1.44.12(a) but not so listed, neither together the “Material Contracts”) is each Contract which any Acquired Entity or Asset Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any written or oral (for which Purchaser shall be bound following otherwise currently obligated under with respect to the Closing Date):following:
(i) any executory Contract providing for the future purchase of, sale of products or payment for, supplies or products, or for the performance provision of services by another partywith any Material Customer or in excess of (x) $250,000, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
construction and ready mix concrete Contracts, and (viy) note$100,000, debenturewith respect to aggregates Contracts, bondin any such case, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement by any Acquired Entity or other Contract or for the borrowing or lending of money (including without limitation loans Asset Seller to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(ii) any single Contract with any Material Supplier or providing for an expenditure by any Acquired Entity or Asset Seller in excess of $200,000;
(iii) any executory Contract, bid or offer to sell products or to provide services to third parties which contains terms or conditions which any Acquired Entity or Asset Seller cannot reasonably be expected to satisfy or fulfill in whole or in part;
(iv) any Contract providing for an expenditure by any Acquired Entity or Asset Seller for the purchase, lease, sublease, disposal, surrender or sale of real property;
(v) any Contract pursuant to which any Acquired Entity or Asset Seller is the lessee or sublessee of, or holds or operates, any personal property owned or leased by any other Person (other than leases of personal property leased in the Ordinary Course of Business with annual lease payments no greater than $50,000);
(vi) any Contract pursuant to which any Acquired Entity or Asset Seller is the lessor, sublessor, lessee, or sublessee of, or permits any third party to operate, any real or personal property owned or leased by any other officer, director, employee or other equityholder of any Acquired Entity or Asset Seller;
(vii) Contract for any charitable revocable or political contributionirrevocable power of attorney granted to any Person;
(viii) Contract limiting (x) any loan agreement, indenture, promissory note, conditional sales agreement, mortgage, security agreement, pledge, letter of credit arrangement, guarantee, endorsement, or restraining Seller or any successor or assign from engaging or competing other similar type of agreement, and in any likeness of business with event, including each Contract evidencing or relating to Indebtedness or (y) any Personpayment, bid, warranty, surety, performance or other bonds (collectively, “Credit Enhancements”);
(ix) licenseany Contract which involves (x) a sharing of profits with, franchise, distributorship or payment of royalties or other agreementamounts based on the mining, including those that relate in whole or in part to any patentremoval, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance sale or other know-how disposition of sand, gravel, aggregate, rock, stone or used by the Business; orother substances to, a third party (other than direct payments for goods or services), or (y) any teaming agreements, joint venture, partnership or similar Contract;
(x) any sales agency, sales representation, consultant, distributorship or franchise Contract;
(xi) any Contract which requires the consent of the other material party thereto or may be terminated as a result of, the sale or change of control of any Acquired Entity or Asset Seller or a substantial portion of its assets;
(xii) any Contract prohibiting competition by any Acquired Entity or Asset Seller, prohibiting any Acquired Entity or Asset Seller from freely engaging in any business anywhere in the world;
(xiii) any Contract not made in the ordinary course Ordinary Course of Business;
(xiv) any Contract pursuant to which any Acquired Entity or Asset Seller has entered into or has agreed to enter into letters of credit or any hedging or similar transactions;
(xv) other than this Agreement, any Contract pursuant to which any Acquired Entity or Asset Seller has acquired or disposed, or has agreed to acquire or dispose, of any Equity Interests or any material business, product line, or material portion of its assets;
(xvi) any Government Contracts;
(xvii) any Contracts with any employee leasing or staffing company pursuant to which such employee leasing or staffing company’s employees provide services to any Acquired Entity or Asset Seller's business consistent ;
(xviii) any collective bargaining agreement or other Contract of any kind with past practice. Each a Union;
(xix) any Contract with an employee or other service provider that provides for annual base salary in excess of $100,000;
(xx) any Contract relating to Intellectual Property (excluding off the Contracts shelf software licensed on generally available commercial terms for a total cost to any Acquired Entity or Asset Seller, including any maintenance and support costs, of less than $100,000 paid to any vendor of such software), including without limitation any agreement by which any Acquired Entity or Asset Seller (A) granted any Person a license, sublicense or right to use any Seller Intellectual Property or any Intellectual Property owned by another Person or is licensed or granted rights to use any Intellectual Property owned by another Person, (B) was assigned any right or interest in any Intellectual Property, (C) settled any dispute or released or was released from any claim pertaining to any Intellectual Property, or granted or was the beneficiary of a covenant not to sue or other instrumentsrestrictive covenant or agreement with respect to Intellectual Property, documents or (D) developed or procured the development of any Intellectual Property; and
(xxi) any Contract authorizing or granting to any Acquired Entity or Asset Seller the right to mine or remove sand, gravel, aggregate, stone, rock or other substances from, on or beneath the surface of any property.
(b) Neither Asset Seller, nor any Acquired Entity, other than Strata, purchase any products or services or and undertakings listed on neither Asset Seller nor any Acquired Entity has any standard form purchase order.
(c) No Acquired Entity or Asset Seller has received any written notice, and, to Sellers’ Knowledge, no Person has received oral notice, of any intention to terminate, repudiate or disclaim any Material Contract to which any Acquired Entity or Asset Seller is a party.
(d) Attached as Schedule 1.68 and Schedule 2.1.4 4.12(d) is valid and enforceable a list of each Material Contract of each Acquired Entity or Asset Seller that has expired by its terms but under which the parties to the Material Contract continue to operate in accordance with its terms.
(e) The Acquired Entities and Asset Seller have made available to Buyer a true, Seller andcomplete and accurate copy of each written Material Contract and a true, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment complete and accurate description of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any each oral Material Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Asset and Equity Purchase Agreement (Knife River Corp)
Contracts and Commitments. Except as listed The Saleen Parties have made available to W270 true, correct and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor any party acting on behalf complete copies of Seller with Seller's Knowledge and consent each of the following Contracts to which Saleen Holdings is a party to or by which any written of the assets or oral properties of Saleen Holdings are bound (for which Purchaser shall be bound following together the Closing Date“Saleen Holdings Contracts”):
3.14.1 all bonds, debentures, notes, loans, credit or loan agreements or loan commitments, mortgages, indentures, guarantees or other contracts relating to the borrowing of money or binding upon any properties or assets (ireal, personal or mixed, tangible or intangible) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or moreSaleen Holdings;
(ii) Contract to sell 3.14.2 all rental or supply products use agreements, contracts, covenants or obligations which may involve the payment by or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period Saleen Holdings of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)25,000;
(iv) representative3.14.3 any contract, sales agencyagreement, dealer commitment or distributor Contractobligation to make any capital expenditures in excess of $25,000;
(v) lease under which Seller is either lessor 3.14.4 contracts, agreements, commitments or lessee other obligations with any Person containing any provision or covenant limiting the ability of Saleen Holdings to engage in any line of business or to compete with or to obtain products or services from any Person or limiting the ability of any Person to compete with or to provide products or services to, or obtain products or services from, Saleen Holdings, or covering indemnification of another Person other than with respect to in the Real Property Leasedordinary course of business;
(vi) note3.14.5 any profit-sharing or similar contract, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement understanding or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business obligation with any Person;
(ix) license3.14.6 contracts, franchiseagreements, distributorship commitments or other agreementobligations with respect to the purchase or sale by or to Saleen Holdings of any product, including those equipment, facility, or similar item that relate in whole by their respective terms do not expire or terminate or are not terminable by Saleen Holdings, without penalty, premium or other liability within 30 days or may involve the payment by or to Saleen Holdings of more than $25,000;
3.14.7 contracts, agreements, commitments or other obligations to provide services or facilities by or to Saleen Holdings or to or by another Person which is not terminable by Saleen Holdings within 30 days without penalty, premium or other liability or involving payment by Saleen Holdings or the other Person of more than $25,000;
3.14.8 any contract that provides for an increased payment or benefit, or accelerated vesting, upon the execution of this Agreement or in connection with the transactions contemplated hereby;
3.14.9 any contract or agreement granting any Person a Lien on all or any part to of any patentasset of Saleen Holdings;
3.14.10 any contract providing for the indemnification or holding harmless by Saleen Holdings of any of its stockholders, trademarkofficers, trade namedirectors, service mark ▇▇ copyright employees, contractors, consultants or to any ideasrepresentatives;
3.14.11 all other contracts, technical assistance agreements, commitments or other know-how of obligations whether or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practicewhich may involve the expenditure by Saleen Holdings of funds in excess of $25,000 per commitment (or under a group of similar commitments), or are otherwise material to Saleen Holdings; or
3.14.12 all other contracts, agreements, commitments, or other obligations of any kind that involve or relate to any Saleen Holdings Stockholder, officer, director, employee, contractor or consultant of Saleen Holdings or any Affiliate or relative thereof. Each of the The Saleen Holdings Contracts and other instrumentsare legal, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid valid, binding and enforceable in accordance with its terms, Seller and, their respective terms with respect to Seller's Knowledge any Saleen Holdings and each other party theretoto such Saleen Holdings Contracts. There are no existing defaults or breaches of Saleen Holdings under any Saleen Holdings Contract (or events or conditions which, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of timetime or both would constitute a default or breach) and, to the knowledge of Saleen Holdings, there are no such defaults (or events or conditions which, with notice or lapse of time or both, would constitute a default by Seller thereunder and, or breach) with respect to Seller's Knowledge, a default by any other third party thereto; (ii) except to any Saleen Holdings Contract. Except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by the Saleen Holdings Disclosure Schedule, Saleen Holdings is not participating in any discussions or on behalf negotiations regarding modification of any party or amendment to any Saleen Holdings Contract or entry in any new material contract applicable to Saleen Holdings or the real or personal property of Saleen Holdings. The Saleen Holdings Disclosure Schedule specifically identifies each Saleen Holdings Contract set forth therein that requires the Contractsconsent of or notice to the other party thereto to avoid any breach, commitmentsdefault or violation of such contract, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease agreement or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of instrument in connection with the transactions contemplated herebyby this Agreement.
Appears in 1 contract
Sources: Merger Agreement (W270, Inc.)
Contracts and Commitments. (a) Seller has delivered to Buyer a correct and complete copy of each Purchased Contract set forth on Schedule 1.01(a)(1) and a written summary of each oral Purchased Contract referred to in Schedule 1.01(a)(1). With respect to each Purchased Contract:
(i) the Purchased Contract is valid and enforceable against Seller, and, to the Knowledge of Seller, against each other individual, corporation, partnership, association, limited liability company, trust, unincorporated organization, other entity or group (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended) (each, a “ Person”) party thereto, subject to the Equitable Remedies Exception;
(ii) neither Seller nor, to the Knowledge of Seller, any other party is in material breach of any Purchased Contract; and
(iii) Seller has not and, to its Knowledge, no other party has repudiated any provision of any Purchased Contract.
(b) Except for customer purchase orders accepted in the ordinary course of the Business, Seller is not party to or bound by any material distributor, dealer, sales representative or other similar contract relating to the Business in the United States, other than those that can be terminated on thirty (30) days notice without penalty.
(c) Except as listed and described set forth on Schedule 1.68 and Schedule 2.1.4Section 2.07(c) of the Disclosure Schedules, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent its Affiliates is a party bound to or bound by any written or oral (for which Purchaser shall be bound of the following the Closing Date):contracts:
(i) Contract for any contract material to the future purchase ofBusiness or Purchased Assets under which (A) any Intellectual Property licenses are granted to Seller or its Affiliates (other than licenses to Seller of off-the-shelf software available at retail), (B) any covenants not to ▇▇▇ are granted to Seller or its Affiliates, or payment for, supplies (C) any rights or products, options to acquire Intellectual Property (by license or for the performance of services by another party, involving in any one case $10,000 otherwise) are granted to Seller or moreits Affiliates;
(ii) Contract any contract material to sell the Business or supply products Purchased Assets under which (A) any Intellectual Property licenses are granted by Seller or its Affiliates (or are obligated to perform servicesbe granted by Seller or its Affiliates), involving in (B) any one case $10,000 covenants not to ▇▇▇ are granted by Seller or more its Affiliates, or (except for C) any Resident/Patient's Agreement);rights or options to acquire Intellectual Property (by license or otherwise) are granted by Seller or its Affiliates; and
(iii) Contract continuing over a period any contract (A) concerning nonsolicitation of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter customers of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(xB) that would limit the freedom, immediately after the Closing, of a purchaser of the Purchased Assets to engage, participate or compete with any other material Contract not made Person in any line of business, or to make use of any Purchased Intellectual Property in the ordinary course United States and/or Canada; or (C) granting most favored nation pricing, exclusive sales, distribution, marketing or other exclusive rights, rights of Seller's business consistent with past practice. Each refusal, rights of first negotiation or similar rights and/or terms to any Person in the United States and/or Canada, which terms would be applicable to a purchaser of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party Purchased Assets immediately after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyClosing.
Appears in 1 contract
Contracts and Commitments. (a) Except as listed and described on set forth in Schedule 1.68 and 3.16 hereto or any other Schedule 2.1.4hereto, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is not a party to any written or oral (for which Purchaser shall be bound following the Closing Date):
any: (i) Contract collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement, or other form of deferred compensation plan; (iii) hospitalization insurance, or similar plan or practice, whether formal or informal; (iv) contract for the future purchase employment of any officer, individual employee, or other person on a full-time or consulting basis or relative to severance pay or change-in-control benefits for any such person; (v) agreement or indenture relating to the borrowing 14 21 of money in excess of $25,000 relating to the Business or Acquired Assets or to mortgaging, pledging, or otherwise placing a lien on any of the Acquired Assets; (vi) 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 payment forpermits any third party to hold or operate, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
Acquired Assets; (viii) Contract limiting other agreement material to the Business or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made entered into in the ordinary course of business. Schedule 3.16 sets forth the term of each such contract or commitment and identifies each such contract or commitment which is not terminable at will by Seller's business consistent .
(b) Prior to the date of this Agreement, Seller has furnished Purchaser with past practice. Each a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, referred to in Schedule 3.16, together with all amendments, waivers, or other changes thereto.
(c) Except as specifically disclosed in Schedule 3.16 hereto: (i) since the date of the Contracts and other instrumentsCurrent Financial Statements, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable no customer or supplier has indicated that it will stop or decrease the rate of business done with Seller, except for changes in accordance with its terms, the ordinary course of the Business; (ii) Seller and, has performed in all material respects the obligations required to Seller's Knowledge any other party thereto, are be performed by it in compliance connection with the provisions thereof, contracts or commitments and Seller and, has not been advised of or received any claim of default under any contract or commitment required to Seller's Knowledge be disclosed hereunder; (iii) Seller has no present expectation or intention of not fully performing any other party thereto, are not in default in the performance, observance obligation pursuant to any contract or fulfillment of any material obligation, covenant or condition contained therein, commitment; and (iv) there has been no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default breach and there is no anticipated breach by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered contract or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Contracts and Commitments. Except as listed (a) Schedule 3.11(a) attached hereto contains an accurate and described on Schedule 1.68 complete list of all Contracts related to the Subject Business and Schedule 2.1.4, neither meeting any of the descriptions set forth below to which Seller nor or any party acting on behalf of Seller with Seller's Knowledge and consent Subsidiary is a party or bound or by which any of the Purchased Assets are subject or bound, or pursuant to which Seller or any written or oral Subsidiary is a beneficiary (for which Purchaser shall be bound following the Closing Date“Purchased Contracts”):
(i) Contract for the future purchase ofContracts obligating Seller to pay, as guarantor or payment forotherwise, supplies any indebtedness or products, or for the performance of services by another party, involving in any one case $10,000 or moreway creating any Lien on any of the Purchased Assets;
(ii) Contract to sell Licenses In, Licenses Out or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)royalty Contracts;
(iii) Contract continuing over a period of more than six months from the date hereof Management, consulting or exceeding $10,000 in value (except for any Resident/Patient's Agreement)advisory Contracts;
(iv) representativeContracts for the purchase or sale of supplies or products or for the furnishing or receipt of services which has a minimum duration of one year or more or involves a sum in excess of $25,000, sales agency, dealer in each case to the extent any such Contract is not terminable by Seller without the payment of any fee or distributor Contractother amount on no more than thirty (30) days notice;
(v) lease under which Seller is either lessor Contracts limiting the freedom of Seller, or lessee other than that would limit the freedom of Buyer after the Closing Date, to freely engage in any line of business or with respect to any Person anywhere in the Real Property Leasedworld;
(vi) noteContracts relating to the distribution, debenturemarketing, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement advertising or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking sales of the indebtedness of any other PersonSoftware Products, including Contracts with sales representatives or agents;
(vii) Contract for any charitable or political contributionContracts pursuant to which Seller subcontracts work to third-parties;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness power of business with any Personattorney;
(ix) license, franchise, distributorship Contracts relating to the acquisition or other agreement, including those that relate in whole sale of any portion of the Subject Business or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; orSoftware Products;
(x) any employment Contract or severance agreement with any Hired Employee;
(xi) any Service Contract with an aggregate amount payable in excess of $10,000;
(xii) the Real Estate Lease; or
(xiii) other Contracts material Contract not to the Subject Business.
(b) Seller has made in the ordinary course available to Buyer complete and correct copies of Seller's business consistent each Purchased Contract, together with past practice. Each of the Contracts all amendments, waivers and other instrumentschanges thereto, documents and undertakings listed on Schedule 1.68 a complete and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller andcorrect description of all material terms of all oral Purchased Contracts. No Purchased Contract has been canceled or, to Seller's ’s Knowledge, breached by the other party, and Seller has no Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default planned breach by any other party thereto; (ii) to any Purchased Contract. Since December 31, 2008, to Seller’s Knowledge, except as set forth on Schedule 1.68 3.11(b), no customer, supplier or distributor of the Subject Business has indicated in writing or orally to Seller that it intends to stop or materially decrease the rate of business done with Seller or that it desires to renegotiate its Contract with Seller or that it would not do business with Buyer. Seller has performed all obligations required to be performed by it in connection with the Purchased Contracts and Schedule 2.1.4 no advance payments have been received by Seller by is not in default under or on behalf in breach of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Purchased Contract, commitmentand no event or condition has occurred or arisen which with the passage of time or the giving of notice or both would result in a default or breach thereunder. Each Purchased Contract is legal, lease valid, binding, enforceable subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or other instrumentaffecting creditors’ rights and to general principles of equity and in full force and effect and, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or subject to Section 2.12, will continue as such following the consummation of the transactions contemplated hereby.
(c) All Software Products have been sold pursuant to Seller’s standard End User License Agreement in the form attached to Schedule 3.11(c), with no material modification to the terms thereof, including terms relating to Seller’s right to assign such End User License Agreement.
(d) To Seller’s Knowledge, there is no reason to believe that Buyer will be unable (i) to obtain, on monetary terms consistent with those currently in effect with Seller, a written maintenance agreement with any customer of the Subject Business who is not currently a party to a written Service Contract, and (ii) to the extent necessary, to obtain, without the payment or provision by Buyer of any sums or inducements, written consents to any transfer of the customer relationship as contemplated hereby.
(e) Schedule 3.11(e) sets forth a complete and correct list of each Purchased Contract that requires a consent or other action by any Person as a result of the execution, delivery and performance of this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bio Key International Inc)
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):
(i) Schedule 4(h) contains a list as of the date of this Agreement of each material Company Contract (other than Retained Contracts), as well as any Company Contracts (other than Retained Contracts) of the following type:
(A) any Company Contract (other than any Company Contract relating to Permitted Indebtedness or any contract otherwise described in (B) below) that provides for the payment by any Company of more than $1,000,000 over the remaining life of such contract;
(B) any Company Contract that has not been fully performed prior to the Valuation Date that constitutes a purchase order or other contract relating to the sale, purchase, lease or provision by any Company of goods or services in excess of $1,000,000;
(C) any Company Contract that grants any Person the exclusive right to sell products or provide services within any geographical region;
(D) any Company Contract that purports to limit the freedom of any Seller to compete in any line of business or to conduct business in any geographic location;
(E) any Company Contract that provides for the deferred payment of any purchase price (other than trade payables incurred in the Ordinary Course of Business), including any “earn out” or other contingent fee arrangement;
(F) any Company Contract that creates an Encumbrance (other than a Permitted Encumbrance) on any of the Subject Assets other than any Company Contract relating to the Permitted Indebtedness or any Company Contract giving rise to a vendor’s lien in respect of trade payables arising in the Ordinary Course of Business;
(G) any Company Contract that involves interest rate swaps, cap or collar agreements, commodity or financial future or option contracts or similar derivative or hedging contracts other than any such contracts incurred pursuant to and in connection with the Permitted Indebtedness to be cancelled and repaid at or prior to Closing;
(H) any Company Contract (other than loans to employees up to an aggregate amount of $100,000) under which any Company has made advances or loans to any other Person other than trade receivables incurred in the Ordinary Course of Business;
(I) any Company Contract that involves any outstanding contracts of guaranty, surety or indemnification, direct or indirect, by any Company.
(J) any Company Contract that constitutes a partnership, joint venture or similar contract;
(K) any Company Contract for the future purchase of, lease of personal property to or payment for, supplies or products, or from any Person providing for the performance lease payments in excess of services by another party, involving $1,000,000 in any one case $10,000 or more;12-month period; and
(L) any Company Contract that involves any Associate.
(ii) The Sellers have delivered to the Buyer a correct and complete copy of each Subject Contract (as amended). Except as set forth in Schedule 4(h)(ii), with respect to sell each Subject Contract or supply products Company Contract, as applicable:
(A) such Subject Contract is enforceable in all material respects, subject to the effects of bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ right generally and to perform services, involving general principles of equity (regardless of whether such enforceability is considered in any one case $10,000 a proceeding in equity or more (except for any Resident/Patient's Agreementat law);
(iiiB) such Subject Contract continuing over a period will continue to be so enforceable on terms identical to those contemplated in (A) above following the consummation of more than six months from the date hereof or exceeding $10,000 in value Transaction Agreements (except for any Resident/Patient's Agreementthose that expire at the end of their term, without regard to the Transaction Agreements);
(ivC) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking none of the indebtedness of any other Person;
Companies that is a party thereto is (vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other the Sellers’ Knowledge, no applicable counter-party thereto, are thereto is) in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in breach or default in the performance, observance or fulfillment of any material obligation, covenant or condition contained thereinsuch contract, and no event has occurred that that, with or without the giving of notice or lapse of time, or both, would constitute a breach or default by Seller thereunder under such Company Contract; and,
(D) to Seller's the Sellers’ Knowledge, a default by no party to such Subject Contract has repudiated any other party thereto; provision of such contract.
(iiiii) except Except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments 4(h)(iii), as of March 31, 2007, with respect to the Product Inventory, the Companies did not have been received by Seller by or on behalf of any party agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement or transaction involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar agreement or any agreement involving a combination of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyforegoing factors.
Appears in 1 contract
Sources: Contribution and Sale Agreement (Genesis Energy Lp)
Contracts and Commitments. Except as listed and described set forth on Schedule 1.68 and Schedule 2.1.44.18, neither Seller nor any party acting on behalf of Seller its Subsidiaries is, with Seller's Knowledge and consent is respect to the Business or the operation thereof, a party to Party to, nor are any written of the Acquired Assets or oral (for which Purchaser shall be Leased Property bound following the Closing Date):or subject to, any:
(ia) Contract for the future purchase ofContract, Real Estate Lease or payment for, supplies or products, or for the performance other similar document that has an aggregate value of services by another party, involving in any one case $10,000 or more;
(iib) Contract Contract, Real Estate Lease or other similar document that cannot be terminated or canceled without further liability to sell Seller or supply products its Subsidiaries, the Business, the Acquired Assets or to perform services, involving in any one case $10,000 or the Leased Property on the giving of no more than ninety (except for any Resident/Patient's Agreement)90) days notice;
(iiic) Contract continuing over a period with any present or former employee or consultant, or for the employment of more than six months from any Person, including any consultant, who is engaged in the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)conduct of the Business;
(ivd) representativedistribution, dealer, representative or sales agency, dealer agency agreement or distributor other similar Contract;
(ve) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract commitment limiting or restraining Seller the Business or any successor or assign thereto from engaging or competing in any likeness manner or in any business, nor, to Seller's Knowledge, is any employee of business with the Business engaged in the conduct of the Business subject to any Personsuch Contract or commitment;
(ixf) license, assignment, franchise, distributorship or other agreement, including those similar Contract that relate relates in whole or in part to any software (other than readily available "off-the-shelf" software), patent, trademark, trade name, service mark ▇▇▇▇ or copyright or to any ideas, technical assistance or other know-how or other Intellectual Property of or used by Seller or its Subsidiaries in the conduct of the Business; or;
(xg) Contract under which Seller or its Subsidiaries has advanced or loaned any other material Contract not made Person amounts in the ordinary course aggregate exceeding $1,000;
(h) Contract 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 Seller;
(i) Contract relating to joint ventures or agreements involving a sharing of profits;
(j) Contract relating to cleanup, abatement or other actions in connection with environmental liabilities;
(k) Contract under which Seller is lessor of or permits any third Person to hold or operate any property owned or controlled by Seller;
(l) Contract for the future purchase of fixed assets or the maintenance thereof or for the future purchase of materials, supplies or equipment in excess of Seller's business consistent normal operating requirements; and
(m) Contract or other undertaking that, taken alone or aggregated with past practiceContracts or other undertakings of a similar nature, is material to the condition of the Business, including, Contracts with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers. Each of the Contracts Contracts, Real Estate Leases and other instruments, documents agreements and undertakings commitments listed on Schedule 1.68 and Schedule 2.1.4 is valid 4.18 shall be collectively referred to herein as the "Material Contracts." All Material Contracts are legal, valid, binding and enforceable in accordance with its their terms, in full force and effect and binding upon the other Parties thereto. Except as set forth in Schedule 4.18, there is no breach or default in any material respect by Seller andor its Subsidiaries or, to Seller's Knowledge Knowledge, any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default Party in the performance, observance or fulfillment of any material obligationobligations, covenant covenants, liabilities or condition conditions contained thereinin any of the Material Contracts, and no event has occurred or condition exists that with or without the giving of notice or notice, lapse of time, time or both, the happening or occurrence of any other event would constitute a breach or default by Seller thereunder andin any material respect, to Seller's Knowledgeor permit termination, a default modification or acceleration, by any other party thereto; (ii) except Party to, or bound by, the Material Contracts. Except as set forth on in Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by 4.18, Seller by has not assigned, secured, pledged, transferred, conveyed, mortgaged, deeded in trust or on behalf of encumbered in any party to way any interest in any of the Material Contracts. Except as set forth in Schedule 4.18, commitmentsthere are no disputes, leases oral agreements or forbearance programs in effect as to any Material Contract. Complete and other instruments listed accurate copies of all Material Contracts that are in writing (including any amendments or supplements thereto) have been delivered to Buyer by Seller and any oral Material Contract has been summarized on Schedule 1.68 and 4.18. Except as set forth in Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) 4.18, no consent or approval of from, or notice to, any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 third Party is required for the execution of this Agreement or the consummation transfer and assignment of the transactions contemplated herebyAssumed Contracts to Buyer pursuant to this Agreement. Upon assignment by Seller of the Assumed Contracts to Buyer at the Closing, each of the Assumed Contracts will vest in Buyer at the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (NewMarket Technology Inc)
Contracts and Commitments. (a) Except as listed and described set forth on Schedule 1.68 and Schedule 2.1.42.9, with respect to the Business, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):
its Affiliates has any: (i) Contract for the future purchase of, collective bargaining agreements or payment for, supplies any agreements or products, policies that contain or for the performance of services by another party, involving in include any one case $10,000 severance pay liabilities or more;
obligations; (ii) Contract employment, consulting or similar agreement, contract or commitment which is not terminable without penalty or cost by Seller or one of its Affiliates on notice of thirty (30) days or less or contains an obligation of Seller or one of its Affiliates to sell or supply products or to perform services, involving in any one case pay more than $10,000 or more (except for any Resident/Patient's Agreement);
100,000; (iii) Contract continuing over a period lease of more than six months from the date hereof real or exceeding personal property (as lessor or lessee) involving rental payments in excess of $10,000 in value (except for any Resident/Patient's Agreement);
100,000 per annum; (iv) representative, sales agency, dealer note or distributor Contract;
other evidence of Indebtedness for borrowed money or the deferred purchase price of property or services (v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made accounts payable and accrued expenses incurred in the ordinary course of Seller's business consistent with past custom and practice); (v) agreement, contract or commitment relating to capitalized expenditures of any kind or nature involving unpaid obligations in excess of $100,000; (vi) agreement, contract or commitment relating to the acquisition of assets of, or any interest in, any business enterprise; (vii) license agreement (including any Software License), or any other contract, arrangement or binding commitment, whether written or oral, with any third party relating to Intellectual Property involving payment obligations (whether executory or fully performed) in excess of $100,000; (viii) 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 $100,000; or (ix) other contract or agreement which involves payments of $100,000 or more and is not cancelable by any party thereto on thirty (30) days or less notice without penalty or cost. Each of the Contracts and other instrumentscontracts, documents and undertakings listed agreements or commitments required to be disclosed on Schedule 1.68 2.9 is referred to herein as a "Material Contract." Seller has delivered or made available to Purchaser copies of each Material Contract required to be disclosed on Schedule 2.9.
(b) Except as expressly disclosed on Schedule 2.9: (i) neither Seller nor any of its Affiliates is in violation of, nor has Seller or any of its Affiliates received any claim, whether written or oral, that any of them has breached any of the terms or conditions of any Material Contract; (ii) each Material Contract is in full force and Schedule 2.1.4 effect and is valid valid, binding and enforceable in accordance with its termswithout any default, Seller andbreach, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance waiver or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default indulgence thereunder by Seller thereunder andor any of its Affiliates or, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) to Seller's Knowledge, there are no consent facts or approval conditions which have occurred which, through the passage of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement time or the consummation giving of the transactions contemplated herebynotice, or both, could reasonably be expected to constitute a default under any Material Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (Systems & Computer Technology Corp)
Contracts and Commitments. Except as listed (a) The Disclosure Schedule lists (and described on Schedule 1.68 the Company has provided true and Schedule 2.1.4, neither Seller nor any party acting on behalf correct copies to the Buyer of) each of Seller with Seller's Knowledge and consent the following items to which either the Company or the Subsidiary is a party or to which any written of their properties or oral other assets are subject, except for any Contracts that may be terminated without liability or penalty on not more than 30 days' notice and any Contracts under which the executory obligation of the Company or the Subsidiary involves an individual amount of less than $10,000 (for which Purchaser shall be bound following the Closing Dateunless a different amount is specified below):
(i) Contract Contracts with any present or former stockholder, director, officer, employee, partner or consultants;
(ii) Contracts for the future purchase of, or payment for, supplies or products, or for the performance of services by another a third party, involving in excess of $20,000 in any one case $10,000 or moreindividual case;
(iiiii) Contract Contracts to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period excess of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)individual case;
(iv) representativenotes, sales agencydebentures, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bondbonds, conditional sale agreementagreements, equipment trust agreementagreements, letter of credit agreementagreements, reimbursement agreements, loan agreement agreements or other Contract or Contracts for the borrowing or lending of money (including without limitation loans to money, agreements or from Employees) arrangements for a line of credit or guarantee, pledge or undertaking in any manner (including guarantees of lease obligations) whatsoever of the indebtedness of any other Personperson or entity;
(viiv) Contract for any charitable or political contribution;
(viii) Contract Contracts limiting or restraining Seller the Company or any successor or assign the Subsidiary from engaging or competing in any likeness line of business with or any Persongeographical area;
(ixvi) Contracts relating to any material license, franchisefranchise or distributorship, distributorship or other agreementcopyright, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; orCompany or the Subsidiary;
(xvii) any Collective bargaining agreements or other material Contract contracts with labor unions;
(viii) Agreements relating to severance arrangements, retirement benefits, deferred compensation or termination of employment; and
(ix) Contracts not made in the ordinary course of Seller's business consistent with past practice. Each that individually involve the payment or receipt of more than $10,000.
(b) Neither the Contracts and other instrumentsCompany, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller andthe Subsidiary nor, to Sellerthe Company's Knowledge knowledge, any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not is in default in under, nor to the performanceCompany's knowledge, observance or fulfillment of has any material obligation, covenant or condition contained therein, and no event has occurred that (with or without the giving of notice or lapse of time, or both, ) would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to under any of the Contracts, commitmentswhich default could reasonably be expected to have a material adverse effect on the Business Condition. Neither the Company nor the Subsidiary has received any communication from, leases and or given any communication to, any other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to party indicating that the Company, the Subsidiary or such other party, as the case may be, is currently or by the lapse of time will be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to in default under any Contract, commitment, lease or other instrument, document or undertaking listed which default could reasonably be expected to have a material adverse effect on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyBusiness Condition.
Appears in 1 contract
Contracts and Commitments. Except as listed As of the date hereof, Section 4.15 of the Seller Disclosure Schedule contains a complete and described on Schedule 1.68 and Schedule 2.1.4accurate list of all contracts (written or oral), neither Seller nor plans, undertakings, commitments or agreements or pending negotiations (including, without limitation, intercompany contracts) ("Company Contracts") of the following categories to which the Company or any party acting on behalf of Seller with Seller's Knowledge and consent its Subsidiaries is a party or by which any of them is bound as of the date of this Agreement:
(a) employment contracts, including, without limitation, contracts to employ executive officers and other contracts with officers, directors or stockholders of the Company, and all severance, change in control or similar arrangements with any officers, employees or agents of the Company that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment to any written officers, employees or oral (for which Purchaser shall be bound agents of the Company following the Closing Date):consummation of the Contemplated Transactions or termination or change of terms and conditions of employment;
(ib) Contract collective bargaining agreements;
(c) Company Contracts for the future purchase of, or payment forof inventory, supplies or productsservices which are not cancellable (without material penalty, cost or other liability) within one year and, other than Company Contracts described elsewhere in this Section 4.15, other Company Contracts involving annual expenditures or liabilities in excess of $50,000 which are not cancellable (without material penalty, cost or other liability) within 90 days;
(d) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the performance lending of services by another partymoney, involving whether as borrower, lender or guarantor;
(e) Company Contracts containing covenants limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or compete with any Person or operate at any location;
(f) any Company Contract pending for the acquisition or disposition, directly or indirectly (by merger or otherwise) of material Assets (other than inventory) or capital stock of any Person (including, without limitation, the Company or any of its Subsidiaries);
(g) other than Company Contracts described elsewhere in this Section 4.15 or Company Contracts which may be omitted pursuant to the specific size limitations set forth in other provisions of this Section 4.15, Company Contracts between the Company and any of its wholly owned Subsidiaries, on one case hand, and any affiliate of the Company which is not wholly owned, directly or indirectly by the Company on the other hand;
(h) any lease (whether of real or personal property) providing for annual rentals of $10,000 15,000 or more;
(iii) Contract to sell any sales, distribution or supply products other similar agreement providing for the sale by the Company or to perform any of its Subsidiaries of materials, supplies, goods, services (including drilling services), involving in any one case $10,000 equipment or more (except for any Resident/Patient's Agreement);other assets; and
(iiij) Contract continuing over a period of more than six months from the date hereof any partnership, joint venture or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan similar agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking arrangement. True and complete copies of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing written Company Contracts identified in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each Section 4.15 of the Contracts and other instruments, documents and undertakings listed on Seller Disclosure Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by delivered or on behalf of any party made available to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyBuyer.
Appears in 1 contract
Contracts and Commitments. Except as listed (a) Schedule 4.12 sets forth an accurate, correct and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor complete list of the material Contracts currently in effect related to the Acquired Businesses to which the Company or any party acting on behalf of Seller with Seller's Knowledge and consent Subsidiary is a party party, by which such entity is bound or pursuant to any which such entity is an obligor or a beneficiary, written or oral (for which Purchaser shall be bound following the Closing Date):unwritten, including but not limited to:
(i) each Contract for relating to the future purchase of, capital stock or payment for, supplies other securities of the Company or products, or for the performance of services by another party, involving in any one case $10,000 or moreSubsidiary;
(ii) each Contract to sell or supply products or to perform services, involving for capital expenditures by any Acquired Company which involves amounts in excess of $25,000 in any one case $10,000 or more fiscal year (except for any Resident/Patient's Agreementother than those that have been fully performed);
(iii) each Contract continuing over a period evidencing any indebtedness or obligation of more than six months from the date hereof Company or exceeding $10,000 in value any Subsidiary for borrowed money, for the extension of Credit or the granting of Liens, for the deferred purchase price of assets (except for excluding ordinary course trade payables) or guaranteeing any Resident/Patient's Agreement)indebtedness, obligation or liability;
(iv) representative, sales agency, dealer or distributor Contracteach Contract wherein any Acquired Company is bound by a non-competition provision;
(v) lease under which Seller is either lessor each joint venture, partnership, teaming arrangement, cooperative arrangement or lessee any other than with respect to the Real Property LeasedContract involving a sharing of profits;
(vi) note, debenture, bond, conditional each Contract with any Governmental Entity other than for services or sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for property in the borrowing or lending ordinary course of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Personbusiness;
(vii) Contract for each power of attorney, proxy or similar instrument granted by or to any charitable or political contributionAcquired Company;
(viii) Contract limiting each agreement, arrangement or restraining Seller or any successor or assign from engaging or competing in any likeness of business understanding with any PersonRelated Party;
(ix) license, franchise, distributorship or each Contract with respect to real property (other agreement, including than those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; ordisclosed on Schedule 4.10);
(x) each agreement, arrangement or understanding with respect to intellectual property rights (which is not disclosed on Schedule 4.13);
(xi) each union or other collective bargaining agreement;
(xii) each sales agency, manufacturers representative and distributorship agreement and other distribution or commission arrangement;
(xiii) each agreement, order or commitment for the purchase of equipment, services, raw materials, supplies or finished products from any one supplier for an amount in excess of $50,000 (other than those that have been fully performed);
(xiv) each outstanding agreement, order or commitment for the rental, lease or sale of equipment, products or services by an Acquired Company for more than $25,000 to any single purchaser or lessee;
(xv) each agreement requiring the consent of any party thereto to the consummation of the transactions contemplated hereby;
(xvi) each other Contract related to the Acquired Businesses or binding on any Acquired Company which involves payments in excess of $50,000, or which relates to material Contract rights, assets or liabilities, and is not made by its express terms cancelable upon less than thirty (30) days' notice, or which was entered into other than in the ordinary course of Seller's business consistent business; and
(xvii) each contract or agreement relating to the response to environmental conditions on or off the Real Property;
(b) Current, correct and complete copies of each such Contract described in this Section 4.12 or, in the case of unwritten Contracts, descriptions thereof, have been delivered by the Company to MEDIQ/PRN.
(c) Each Contract required to be listed or referred to on Schedule 4.12 or listed or referred to on any other Schedule to this Agreement to which the Company or any Subsidiary is a party, by which such entity is bound or pursuant to which such entity is an obligor or a beneficiary is in full force and effect. Such entity has complied with past practiceall commitments and obligations on its part to be performed or observed under each such Contract to which it is a party. Each To the knowledge of the Contracts Company, each party to each such Contract other than the Company or a Subsidiary has complied with all commitments and other instruments, documents and undertakings listed obligations on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, part to Seller's Knowledge be performed or observed thereunder. The Company has not received any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge notice of a default under any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, such Contract and no event or condition has occurred that with or without the giving of currently exists which constitutes a default or, after notice or lapse of time, time or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by under any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Mediq PRN Life Support Services Inc)
Contracts and Commitments. (a) Except as listed set forth in Schedule 3.13 hereto, under the captions "Leases" and described on "Equipment Leases" in Schedule 1.68 3.9 hereto, or under the captions "Third-Party Licenses" and "Third-Party Licenses" in Schedule 2.1.43.15 hereto, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent Logicraft is not a party to any written or oral (for which Purchaser shall be bound following the Closing Date):
any: (i) Contract collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement, or other form of deferred compensation plan; (iii) medical, health or hospitalization insurance or similar plan or practice, whether formal or informal; (iv) contract for the future purchase employment of any officer, individual employee, or other person on a full-time or consulting basis or relative to severance pay or change-in-control benefits for any such person; (v) agreement or indenture relating to the borrowing of money in excess of $50,000 or to mortgaging, pledging or otherwise placing a lien on any of the assets of Logicraft; (vi) 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 payment forpermits any third party to hold or operate, supplies any property, real or products, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
personal; (viii) Contract limiting contract or restraining Seller group of related contracts with the same party for the purchase by Logicraft of products or any successor or assign from engaging or competing services, under which the undelivered balance of such products and services has a purchase price in any likeness excess of business with any Person;
$50,000; (ix) license, franchise, distributorship contract or other agreement, including those that relate group of related contracts with the same party for the sale by Logicraft of products or services under which the undelivered balance of such products or services has a sales price in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how excess of or used by the Business$50,000; or
(x) any contract relating to the distribution of Logicraft's products; (xi) franchise agreement; or (xii) other agreement material Contract to Logicraft's business or not made entered into in the ordinary course of Seller's business consistent business.
(b) Prior to the date of this Agreement, Logicraft has made available to Microtest a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, referred to in Schedule 3.14, together with past practiceall amendments, waivers or other changes thereto. Each 10
(c) Except as specifically disclosed in Schedule 3.13 hereto, (i) since the date of the Contracts and other instrumentsNovember 30, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable 1996 Balance Sheet, no customer or supplier has indicated that it will stop or decrease the rate of business done with Logicraft, except for changes in accordance with its terms, Seller and, the ordinary course of Logicraft's business; (ii) Logicraft has performed the obligations required to Seller's Knowledge any other party thereto, are be performed by it in compliance connection with the provisions thereof, Seller and, contracts or commitments and Logicraft has not been advised of or received any claim of default under any contract or commitment required to Seller's Knowledge be disclosed under such caption; (iii) Logicraft has no present expectation or intention of not fully performing any other party thereto, are not in default in the performance, observance obligation pursuant to any contract or fulfillment commitment; and (iv) Logicraft has no knowledge of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default breach by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered contract or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Purchase and Sale of Stock Agreement (Microtest Inc)
Contracts and Commitments. Except as listed and described set forth on Schedule 1.68 and Schedule 2.1.42.18 ------------------------- ------------- attached hereto, neither Seller nor the Company does not have any party acting on behalf contract, obligation or commitment which is material or which involves a potential material commitment, including but not limited to, any stock redemption or purchase agreement; financing agreement; promissory note or other evidence of Seller indebtedness for money borrowed; retirement or stock option plan; contract for the purchase of equipment, inventory or other materials having a price under such contract in excess of $20,000; contract or agreement restricting in any manner the Company's right to compete with Seller's Knowledge and consent any Person or restricting its right to sell to or purchase from any other Person; contract for the payment or receipt of license fees or royalties to or from any Person that is a party expected to any written or oral (for which Purchaser shall be bound following the Closing Date):
result in (i) Contract for the future purchase of, payment to such Person of more than $20,000 in licensing fees or payment for, supplies royalties or products, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in the receipt from any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period Person of more than six months from the date hereof $20,000 in licensing or exceeding $10,000 royalty fees, in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than each case as measured with respect to the Real Property Leased;
Company's fiscal year ended December 31, 1998; contract of agency, representation, distribution or franchise which cannot be canceled by the Company without payment or penalty upon notice of sixty (vi60) notedays or less; lease or sublease, debentureeither as lessee or sublessee, bondlessor or sublessor, conditional sale agreementof real or personal property or intangibles, equipment trust agreement, letter where the lease or sublease provides for an annual rent in excess of credit agreement, loan $20,000 and has in excess of one (1) year remaining on its term as of the date of the Closing; or any other contract or agreement or other Contract or which provides for the borrowing receipt or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used expenditure by the Business; or
(x) any other material Contract not made Company of more than $20,000, except sales and purchase orders accepted by the Company in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebybusiness.
Appears in 1 contract
Sources: Series E Preferred Stock Purchase Agreement (Mainspring Communications Inc)
Contracts and Commitments. Except as listed and described on set forth in the Disclosure Schedule 1.68 and Schedule 2.1.43.1.23, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to not legally bound under any written or oral (for which Purchaser shall be bound following the Closing Date):oral:
(ia) Contract agreement, contract or commitment with any present or former employee or consultant or for the employment of any person, including any consultant, who is engaged in the conduct of the Business;
(b) agreement, contract or commitment for the future purchase of, or payment for, supplies or products, or for the performance of services by another partya third party which supplies, products or services that are used in the conduct of the Business involving in any one case Ten Thousand Dollars ($10,000 10,000.00) or more;
(iic) Contract agreement, contract or commitment to sell or supply products ("Goods Contracts") or to perform services, services ("Services Contracts") in connection with the Business involving in any one case Ten Thousand Dollars ($10,000 10,000.00) or more (except for any Resident/Patient's Agreement)more;
(iiid) Contract agreement, contract, licenses or commitment relating to the Business not otherwise listed on the Disclosure Schedule and continuing over a period of more than six months from the date hereof or exceeding Ten Thousand Dollars ($10,000 10,000.00) in value (except for any Resident/Patient's Agreement)value;
(ive) representativedistribution, dealer, representative or sales agencyagency agreement, dealer contract or distributor Contractcommitment relating to the Business;
(vf) lease under which Seller is either lessor or lessee other than with respect relating to the Real Property LeasedAssets or any property at which the Assets are located;
(vig) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract contract or commitment for the borrowing or lending of money (including without limitation loans relating to the Business or from Employees) agreement or arrangement for a line of credit or guarantee, pledge or undertaking of the indebtedness of any other Personperson relating to the Business;
(viih) Contract agreement, contract or commitment for any charitable or political contributioncontribution relating to the Business;
(viiii) Contract commitment or agreement for any capital expenditure or leasehold improvement in excess of Ten Thousand Dollars ($10,000.00) relating to the Business;
(j) agreement, contract or commitment limiting or restraining Seller Seller, the Business or any successor or assign thereto from engaging or competing in any likeness manner or in any business, nor, to Seller's knowledge, is any employee of business with Seller engaged in the conduct of the Business subject to any Personsuch agreement, contract or commitment;
(ixk) license, franchise, distributorship or other agreement, including those that relate agreement which relates in whole or in part to any software, patent, trademark, trade name, service mark m▇▇▇ or copyright or to any ideas, technical assistance or other know-how of or used by Seller in the conduct of the Business; or
(xl) any other material Contract agreement, contract or commitment relating to the Business not made in the ordinary course of Seller's business consistent with past practicebusiness. Each of the Contracts agreements, contracts, commitments, leases, plans and other instruments, documents and undertakings listed on in the Disclosure Schedule 1.68 and Schedule 2.1.4 3.1.23 in response to this Section, or not required to be listed therein because of the amount thereof, under which Purchaser is to acquire rights or obligations hereunder is, to Seller's knowledge, valid and enforceable in accordance with its termsterms except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting generally the enforcement of creditors' rights and by general principles of equity; Seller andis, and to Seller's Knowledge any knowledge all other party theretoparties thereto are, are in compliance with the material provisions thereofthereof where such default would have a Material Adverse Effect; Seller is not, Seller and, and to Seller's Knowledge any knowledge no other party theretothereto is, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, therein where such default would have a Material Adverse Effect; and no event has occurred that which with or without the giving of notice or lapse of time, or both, would constitute a material default by Seller thereunder andthereunder. Furthermore, to Seller's Knowledgeno such agreement, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contractcontract, commitment, lease lease, plan or other instrument, document or undertaking listed on Schedule 1.68 undertaking, in the reasonable opinion of Seller, contains any contractual requirement with which there is a reasonable likelihood Seller or any other party thereto will be unable to comply and Schedule 2.1.4 is required for such failure to comply will have a Material Adverse Effect. Except as set forth in the execution Disclosure Schedules 3.1.4 or 3.1.23, no written or oral agreement, contract or commitment described therein requires the consent of this Agreement or the consummation of any party to its assignment in connection with the transactions contemplated hereby.
Appears in 1 contract
Sources: Plan of Reorganization and Asset Purchase Agreement (3m Co)
Contracts and Commitments. Except Schedule 2.5 sets forth a list, as listed of the date hereof, the following Contracts relating to the Business, the Acquired Assets and/or the Assumed Liabilities (the “Material Contracts”):
(a) leases (whether of real or personal property) and described warehousing agreements providing for annual rents or charges of $100,000.00 or more that are not terminable by Seller without payment of any material penalty on Schedule 1.68 notice of 90 days or less;
(b) Contracts between Seller and Schedule 2.1.4any Key Supplier and any Key Customer;
(c) employment, neither Seller nor consulting or independent contractor Contracts, other than at-will employment Contracts;
(d) collective bargaining Contracts with any party acting unions, guilds, shop committees, work councils, collective bargaining groups or other labor organizations;
(e) loan Contracts, promissory notes, letters of credit or other evidence of Indebtedness secured in whole or in part by any Encumbrance on behalf any Acquired Asset, except to the extent that the same will be released at or prior to the Closing;
(A) Intellectual Property Licenses; and (B) consulting, development, joint development or any other Contract relating to Intellectual Property Rights (in each case, other than Contracts with distributors and customers of Seller entered into by Seller in the Ordinary Course of Business and Contracts for Off-the-Shelf Software);
(g) Contracts containing a covenant that restricts Seller, with respect to the Business, from engaging in any line of business or competing with any Person;
(h) Contracts with: (A) any owner of Seller's Knowledge and consent is a party to ; (B) any written Related Person of Seller and/or (C) any Affiliate of Seller or oral (for which Purchaser shall be bound following the Closing Date):of any owner of Seller;
(i) Contract for the future purchase ofContracts with any Agent or Sales Representative that are not terminable by Seller on notice of no longer than 90 calendar days without liability, penalty or payment for, supplies or products, or for the performance premium of services by another party, involving in any one case $10,000 or morekind;
(iij) Contract to sell Contracts that reflect a joint venture, partnership or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)similar arrangement;
(iiik) Contract continuing Contracts involving consideration or other expenditure in excess of $500,000.00 over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)12 months;
(ivl) representative, sales agency, dealer Contracts that require Seller to purchase or distributor Contractsell a stated portion of the requirements or outputs of the Business or that contain “take or pay” provisions;
(vm) lease under which Seller is either lessor or lessee all Contracts (i) that provide for the assumption of any Tax (other than with respect as part of an agreement entered into in the Ordinary Course of Business that is primarily not related to Taxes), environmental, or other Liability of any Person, or (ii) the Real Property Leasedprimary purpose of which is indemnification;
(vin) noteall Contracts that relate to the acquisition or disposition of any business, debenture, bond, conditional sale agreement, equipment trust agreement, letter a material amount of credit agreement, loan agreement stock or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness assets of any other Person;Person or any real property (whether by merger, sale of stock, sale of assets or otherwise); and
(viio) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business all Contracts with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practiceGovernmental Entity. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 Material Contract is valid and enforceable binding on Seller in accordance with its terms, terms and is in full force and effect. None of Seller andor, to Seller's Knowledge ’s Knowledge, any other party theretothereto is in material breach of or default under (or is alleged to be in material breach of or default under), are in compliance with the provisions thereof, Seller and, to Seller's Knowledge or has provided or received any other party thereto, are not in default in the performance, observance or fulfillment written notice of any material obligationintention to terminate, covenant or condition contained thereinany Material Contract. To the Knowledge of Seller, and no event or circumstance has occurred that that, with or without the giving of notice or lapse of time, time or both, would constitute an event of default under any Material Contract or result in a default by Seller thereunder andtermination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, to Seller's Knowledge, a default by any other party thereto; (iiamendments and supplements thereto and waivers thereunder) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by made available to Buyer. There are no material disputes pending or on behalf of threatened in writing under any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Material Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4set forth in Schedules 4-G, neither 4-I or 4-J, no Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):oral:
(ia) Contract for agreement or indenture relating to the future purchase ofborrowing of money or mortgaging, pledging or payment for, supplies otherwise placing a Lien on any of Sellers' assets or products, or for the performance of services by another party, involving in any one case $10,000 or moreproperty;
(iib) Contract to sell lease or supply products agreement under which it is lessee of or to perform services, involving in holds or operates any one case $10,000 or more (except for personal property owned by any Resident/Patient's Agreement)other party;
(iiic) Contract 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;
(d) contract relating to the supply or distribution of Sellers' products;
(e) contract or group of related contracts with the same party continuing over a period of more than six (6) months from the date hereof or exceeding $10,000 in value dates thereof that is not terminable by each party thereto on thirty (except 30) days or less notice without penalty;
(f) license or royalty agreement;
(g) agreement, arrangement or understanding with any officer, director, partner, stockholder or other insider or Affiliate of Seller (other than for any Resident/Patient's Agreementemployment on customary terms);
(ivh) representative, sales agency, dealer or distributor Contract;
contract which prohibits it from freely engaging in business anywhere in the world (v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing territorial limitations contained in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the BusinessLicenses); or
(xi) any other material Contract agreement relating to the Acquired Assets or the Assumed Liabilities, whether or not made entered into in the ordinary course of Seller's business consistent with past practicebusiness. Each Except as disclosed in Schedules 4-G, 4-I or 4-J, (i) to the best of Sellers knowledge, no contract or commitment described on such schedules has been breached in any material respect or canceled by the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party theretothat has not been duly cured or reinstated, are (ii) each Seller has in compliance with all material respects performed all of its obligations required to be performed by it under such contracts and commitments to the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are date of this Agreement and is not in default in the performance, observance or fulfillment receipt of any material obligation, covenant written claim of default under any such contract or condition contained thereincommitment, and (iii) to Sellers knowledge, no event has occurred that which, with the passage of time or without the giving of notice or lapse of time, or both, would constitute result in a breach or default by Seller thereunder andunder any such contract or commitment. Buyer has been supplied with a true and correct copy of all written contracts as specified on Schedules 4-G, to Seller's Knowledge4-I or 4-J, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contractstogether with all amendments, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease waivers or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebychanges thereto.
Appears in 1 contract
Contracts and Commitments. Except (a) As of the date of this Agreement, except as listed and described on Schedule 1.68 and Schedule 2.1.4set forth in schedule 4.19, neither Seller nor any party acting on behalf none of Seller with Seller's Knowledge and consent the Companies is a party to or bound by any of the following agreements, whether such agreements are written or oral (for which Purchaser shall be bound following the Closing Date):oral:
(i) Contract contract for the future purchase ofemployment of any person on a full-time, part-time, or payment forconsulting basis or any severance agreements, supplies or products, or for other than at the performance will of services by another party, involving in any one case $10,000 or morethe employer;
(ii) Contract promissory note, agreement, or promise to sell pay, or supply products indenture relating to the borrowing of money or to perform servicesmortgaging, involving in pledging, or otherwise placing a lien, security interest, or other charge or encumbrance on any one case $10,000 or more (except for any Resident/Patient's Agreement)of its assets, other than Permitted Liens;
(iii) Contract continuing over a period agreements with respect to the lending or investing of more funds, other than six months from agreements entered into in the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)ordinary course of business and consistent with past practice regarding cash management;
(iv) representativelicense or royalty agreements, sales agency, dealer or distributor Contractother than off-the-shelf software and agreements with customers in the ordinary course of business and consistent with past practice;
(v) lease under which Seller is either lessor guaranty of indebtedness or lessee liability of any other than with respect to the Real Property Leasedperson or entity;
(vi) notelease or agreement under which it is lessee of, debentureor holds or operates, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any personal property owned by any other Personparty that involves annual payments of more than $5,000;
(vii) Contract for lease or agreement under which it is lessor of or permits any charitable third party to hold or political contributionoperate any property, real or personal, owned or controlled by it;
(viii) Contract limiting contract or restraining Seller group of related contracts with the same party for the purchase by it of supplies, products, or any successor other personal property or assign from engaging for the furnishing or competing receipt of services that involves a sum in any likeness excess of business with any Person$5,000;
(ix) license, franchise, distributorship contract that prohibits or other agreement, including those that relate purports to prohibit it or any of its affiliates from freely engaging in whole or business anywhere in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; orworld;
(x) any contract relating to the distribution, marketing, or sale of its products or services;
(xi) warranty agreement with respect to products or services sold or licensed, other material Contract not made than in the ordinary course of Seller's business and consistent with past practice. Each of the Contracts ;
(xii) franchise agreements and license agreements, other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default than in the performanceordinary course of business and consistent with past practice;
(xiii) agreements, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of timecontracts, or bothunderstandings pursuant to which it engages independent contractors and involves a sum in excess of $5,000; or
(xiv) other agreement material to it, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 whether or not entered into in the ordinary course of business and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyconsistent with past practice.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bluephoenix Solutions LTD)
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.42.1.4 hereto, neither Seller nor any party acting on behalf of Seller is not with Seller's Knowledge and consent is respect to the Purchased Assets or the Business a party to any written or oral (for which Purchaser shall be bound following the Closing Date):oral:
(i) Contract agreement, contract or commitment for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 5,000 or more;
(ii) Contract agreement, contract or commitment to sell or supply products or to perform services, involving in any one case $10,000 5,000 or more (except for any Resident/Patient's Agreement)more;
(iii) Contract agreement, contract or commitment continuing over a period of more than six months from the date hereof or exceeding $10,000 5,000 in value (except for any Resident/Patient's Agreement)value;
(iv) representative, sales agency, dealer or distributor Contractagreement, consulting contract or commitment;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract contract or commitment for the borrowing or lending of money (including without limitation loans to or from Employeesemployees) or guarantee, pledge or undertaking of the indebtedness of any other Person, except for the Company Loan described in Schedule 2.5 attached hereto;
(vii) Contract agreement, contract or commitment for any charitable or political contribution;
(viii) Contract agreement, contract or commitment limiting or restraining Seller or any successor or assign from engaging or competing in any likeness lines of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇▇▇ or copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
. The foregoing contracts are referred to herein collectively as the "Material Contracts" and each individually as a "Material Contract." Except as may be disclosed on Schedule 2.1.4 hereto, (xi) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each each of the Contracts and other instrumentsMaterial Contracts, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller andis not, and to the Knowledge of Seller's Knowledge any , no other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not thereto is in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party theretothereunder; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 Material Contracts for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 Material Contract is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Jpe Inc)
Contracts and Commitments. (a) Except as listed and described set forth on Schedule 1.68 and Schedule 2.1.4the attached Contracts Schedule, neither Seller the Company nor any party acting on behalf of Seller with Seller's Knowledge and consent the Subsidiary is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):
any: (i) Contract collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth on the attached Employee Benefits Schedule; (iii) stock purchase, stock option or similar plan, other than as set forth on the attached Capital Stock Schedule; (iv) contract for the future purchase employment of any officer or other senior management person on a full-time or consulting basis, other than as set forth on the attached Employee Benefits Schedule; (v) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any material asset of the Company or the Subsidiary, other than as set forth on the Latest Balance Sheet or on the attached Liens Schedule; (vi) guaranty of any material obligation for borrowed money or other material guaranty; (vii) lease or agreement under which it is lessee of, or payment for, supplies holds or products, or for the performance of services operates any personal property owned by another any other party, involving in any one case for which the annual rental exceeds $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
150,000; (viii) Contract limiting lease or restraining Seller agreement under which it is lessor of or permits any successor third party to hold or assign from engaging operate any property, real or competing in any likeness of business with any Person;
personal, for which the annual rental exceeds $150,000; (ix) licensecontract or group of related contracts with the same party for the purchase of products or services, franchise, distributorship or other agreement, including those that relate under which the undelivered balance of such products and services has a selling price in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how excess of or used by the Business$150,000; or
(x) 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 $150,000; (xi) contract which prohibits the Company or the Subsidiary from freely engaging in business anywhere in the world; (xii) contract relating to the acquisition or licensing of any material patent, trademarks, service mark, ▇▇ade name or copyright or any franchise license, royalty agreements or similar contracts; (xiii) contracts or other agreements for the grant to any person of any preferential rights to purchase any of the Company's or Subsidiary's assets (other than inventory), properties or business; (xiv) contracts or other agreements under which the Company or the Subsidiary agrees to share any liability for Taxes with any person; (xv) contracts or other agreements relating to the acquisition by the Company or the Subsidiary of any operating business or the capital stock of any person; or (xvi) contracts or other agreements for the payment of fees or other consideration to any officer or director of the Company or the Subsidiary or any other material Contract not made entity in the ordinary course of Seller's business consistent with past practice. Each which any of the foregoing has an interest. 20
(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 and Schedule, together with all material amendments, waivers or other instrumentschanges thereto.
(c) Neither the Company nor the Subsidiary nor, documents and undertakings to the knowledge of the Company, any other party to such contract, is in breach of or default under any contract listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its termsthe Contracts Schedule, Seller and, to Seller's Knowledge the knowledge of the Company, there does not exist under any other party theretothereof any event which, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or the lapse of time, or both, would constitute such a default by Seller thereunder andbreach or default, except for such breaches, defaults and events as to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments which requisite waivers or consents have been received by Seller by obtained or on behalf of any party to any of which would not, in the Contractsaggregate, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyhave a Material Adverse Effect.
Appears in 1 contract
Contracts and Commitments. Except as (i) The agreements listed on the Disclosure Schedule constitute all written and described on Schedule 1.68 and Schedule 2.1.4, neither oral agreements to which Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party that are material to any written or oral (for which Purchaser shall be bound following the Closing Date):Business as currently conducted, including, without limitation,
(i1) Contract for any agreements relating to the future construction or purchase ofof capital improvements, or payment forthe purchase of any materials, supplies or productssupplies, or for the performance of services by another partyequipment, involving in any one case the expenditure of more than $10,000 or more50,000;
(ii2) Contract to sell any employment, consulting, management, or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)noncompetition agreement not terminable at will without liability on less than 30 days notice;
(iii3) Contract continuing over a period of more any bonus, pension, retirement, profit sharing or other plan or agreement providing for employee benefits other than six months from the date hereof or exceeding $10,000 in value (except group health insurance, sick pay, and vacation pay plans for any Resident/Patient's Agreement)employees generally;
(iv4) representativeany license of any patent, sales agencycopyright, dealer trade secret or distributor Contractother proprietary right or any other license, or, franchise, or similar agreement;
(v5) lease under which Seller is either lessor any contract with any labor union or lessee other than with respect to the Real Property Leasedassociation of employees;
(vi6) any indemnification agreement relating to infringement of proprietary rights;
(7) any agreement, contract, or commitment that is expected by Seller to be performed at or result in a loss, or which has a would have material adverse effect upon the Business;
(8) any lease of personal property material to the operations of Seller;
(9) any agreement with any broker, finder, investment banker or underwriter;
(10) any note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract contract or commitment for the borrowing or lending of money (including without limitation loans relating to the Business or from Employees) agreement or guaranteearrangement for a line of credit or any guaranties, pledge in any manner, whether directly or undertaking indirectly, of the indebtedness any indebtedness, dividend or other obligation of any other Person;
person or entity relating to the Business (vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made than endorsements in the ordinary course of Seller's business consistent of negotiable instruments for deposit or collection);
(1) agreements with past practicesales representatives and distributors,
(11) and including each amendment, modification, renewal or extension or other material ancillary document pertaining thereto (the "Seller Agreements"). Each Seller has previously delivered or made available to BuyerPRG correct and complete copies of each of the Contracts and Seller Agreements that are in writing.
(ii) Seller has not received notice of cancellation or termination (written or otherwise) under any option or right reserved to the other instruments, documents and undertakings listed party to Seller Agreement or any notice of default (written or otherwise) under such agreement. Except as otherwise disclosed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its termsthe Disclosure Schedule, Seller is not, nor to the knowledge of Seller, is any other party, in breach or default of any Seller Agreement that would cause a material adverse effect on the Business and, to the knowledge of Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that that, with or without the giving of notice or lapse of time, time or both, would constitute such a breach or default by or permit termination, modification or acceleration under such Seller thereunder andAgreement that would cause a material adverse effect on the Business. Except as separately identified in the Disclosure Schedule, no approval or consent of any person is needed in order that the Seller Agreements continue in full force and effect following the assignment of such agreements to Buyer.PRG. Furthermore, to the best knowledge of Seller's Knowledge, no Seller Agreement, in the reasonable opinion of Seller, contains any contractual requirement with which there is a default by reasonable likelihood Seller or any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party thereto will be unable to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebycomply.
Appears in 1 contract
Sources: Acquisition Agreement (Production Resource Group LLC)
Contracts and Commitments. Except as for matters listed on ------------------------- SCHEDULE 3.1.17, the Excluded Contracts and described the Contracts listed on Schedule 1.68 and Schedule 2.1.4SCHEDULE 3.1.14 hereto, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is not a party to any written or oral (for which Purchaser shall be bound following the Closing Date):oral:
(ia) Contract with any present or former employee or consultant or for the employment or engagement of any person, including any consultant, who is engaged in the conduct of the Business;
(b) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another a third party, involving which supplies, products or services are used in the conduct of the Business involving, with respect to any obligation continuing after the Closing, in any one case $10,000 12,000 or more;
(iic) Contract to sell or supply products or to perform servicesservices in connection with the Business involving, involving with respect to any obligation continuing after the Closing, in any one case $10,000 12,000 or more (except for any Resident/Patient's Agreement)more;
(iiid) Contract relating to the Business not otherwise listed on SCHEDULE 3.1.14 hereto, and continuing over a period of more than six months from the date hereof or and exceeding $10,000 12,000 in value (except for any Resident/Patient's Agreement)value;
(iv) representative, sales agency, dealer or distributor Contract;
(ve) lease under which Seller is either lessor or lessee other than with respect relating to the Real Property LeasedAssets or any property at which the Assets are located;
(vif) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans relating to the Business or from Employees) agreement or arrangement for a line of credit or guarantee, pledge or undertaking of the indebtedness of any other Personperson relating to the Business;
(viig) Contract for any charitable or political contributioncontribution relating to the Business;
(viiih) commitment or agreement for any capital expenditure or leasehold improvement in excess of $12,000 relating to the Business;
(i) Contract limiting or restraining Seller Seller, the Business or any successor or assign thereto from engaging or competing in any likeness manner or in any business, nor, to Seller's or any of business with the Managing Member's knowledge, is any Personemployee of Seller engaged in the conduct of the Business subject to any such Contract;
(ixj) licenselicense (other than licenses for off-the-shelf software), franchise, distributorship or other agreement, including those that relate agreement which relates in whole or in part to any patentany, trade secret, trademark, tradename, trade namedress, service mark ▇▇▇▇ or copyright or to any invention, ideas, technical assistance or other know-how of or used by Seller in the conduct of the Business;
(k) Contract with any of the Managing Members, any member of their immediate families, any officer or employee or Seller or any other Affiliates (as hereinafter defined) of Seller or any of the Managing Members; or
(xl) Contract, option or right with, of or to any other material Contract not made in the ordinary course person to acquire or use any of Seller's business consistent with past practice. Each of the Contracts and other instrumentsassets, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default properties or rights included in the performance, observance Assets or fulfillment of any material obligation, covenant or condition contained interest therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Chart House Enterprises Inc)
Contracts and Commitments. Except as listed (a) Section 4.17(a) of the Company Disclosure Schedule lists each of the following Contracts (and described on Schedule 1.68 all amendments, modifications and Schedule 2.1.4, neither Seller nor supplements thereto and all side letters to which the Company or any party acting on behalf of Seller with Seller's Knowledge and consent its Subsidiaries is a party affecting the current obligations of any party thereunder) to which the Company or any written of its Subsidiaries is a party or oral by which any of their respective properties or assets are bound (for which Purchaser shall each such Contract, and each Contract listed in Section 4.15 (Real Estate; Properties), 4.18 (Intellectual Property Rights) or 4.22 (Certain Loans and Other Transactions) of the Company Disclosure Schedule, as well as all Contracts required to be bound following set forth (including in order to ensure the Closing Dateaccuracy of the representations and warranties in) in Sections 4.17 (Contracts and Commitments), 4.15 (Real Estate; Properties), 4.18 (Intellectual Property Rights) or 4.22 (Certain Loans and Other Transactions) that is not so listed, a “Material Contract”):
(i) any Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in with any one case $10,000 or moreGovernmental Entity;
(ii) any Contract to sell with any telecommunications company or supply products carrier, collocation company, or to perform services, involving in any one case $10,000 hosting or more (except for any Resident/Patient's Agreement)internet service provider;
(iii) any Contract continuing over a period or indenture relating to Indebtedness or any guarantee by the Company or its Subsidiaries of more than six months from the date hereof obligations of any other party or exceeding $10,000 in value (except for relating to any Resident/Patient's Agreement)interest rate, currency or commodity derivatives or hedging transactions;
(iv) representativeany partnership, sales agencylimited liability company agreement, dealer joint venture, profit-sharing or distributor Contract;
similar agreement (v) lease under which Seller is either lessor or lessee other than agreements with respect to the Real Property Leased;
(visales agents containing revenue sharing agreements or arrangements) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business entered into with any Person;
(v) any Contract for the acquisition, disposition, merger or sale or similar transaction involving any business or material assets (including Intellectual Property) of the Company or any of its Subsidiaries, other than for Contracts that have been consummated as of the date of this Agreement for aggregate consideration under such agreement of less than $100,000 and for which the Company and its Subsidiaries have no continuing indemnification, “earn-out” or other material or contingent obligations;
(vi) any collective bargaining agreements, memoranda or understandings, settlements or other labor agreements with any union or labor organization applicable to the Company, its Affiliates or their employees;
(vii) any Contract that obligates the Company or its Subsidiaries to make any capital commitment or expenditure, individually or in the aggregate, in excess of $100,000;
(viii) any employment, bonus, retention, severance or other similar agreement which (x) contains a change of control, or “golden parachute” provision or (y) that otherwise provides for base salary or base compensation in any fiscal year that is equal to or greater than $100,000;
(ix) license, franchise, distributorship or other agreement, including those that relate any Contract which is performed (in whole or in part part) outside of the United States, where a party that is a natural person to any patentthe agreement is not a United States citizen, trademark, trade name, service mark ▇▇ copyright or where all or a portion of the agreement is subcontracted to any ideas, technical assistance or other know-how of or used by the Business; ora natural person that is not a United States citizen;
(x) any Contract to which the Company or any of its Subsidiaries is a party or by which they or any of their assets are bound and which involves consideration or other material Contract obligations in excess of $100,000 annually;
(xi) all broker, dealer, manufacturer’s representative, distributor, franchise, agency, and consulting Contracts (not including distributor, franchise, agency and consulting Contracts with sales personnel that is terminable at the option of the Company without any Liability and is for a term of one-year and with substantially the same terms as the Company’s form of sales personnel agreement made available to Parent);
(xii) all Contracts involving the payment of royalties or other amounts payable by the Company or a Company Subsidiary calculated based upon the revenues or income of the Company or a Company Subsidiary or income or revenues related to any product of the Company or a Company Subsidiary (other than Contracts involving compensation in connection with the sale and distribution of any product of the Company or a Company Subsidiary entered into in the ordinary course of Seller's business);
(xiii) any Contract containing (A) most favored nation, exclusive rights, or minimum purchase requirements in favor of any third party, (B) any right of first refusal or first offer or (C) any provision that limits the ability of the Company or any Company Subsidiary to (x) compete or operate in any line of business, or with any Person or entity, or in any market or geographic area or during any period of time or (y) acquire or sell any product, assets or services or otherwise develop or distribute any technology (excluding license limitations contained in inbound licenses which limitations are of the type ordinarily included in commercial licenses);
(xiv) any Contract obligating the Company or any of its Subsidiaries to pay a minimum royalty, fee or other payment regardless of usage or purchase;
(xv) any Contract obligating the Company or any of its Subsidiaries (A) to purchase or otherwise obtain a product or service exclusively from any Person or (B) sell or provide any product or service exclusively to any Person;
(xvi) all Contracts that result in any person or entity holding a power of attorney from the Company or any Company Subsidiary that relates to the Company, any Company Subsidiary or their respective businesses;
(xvii) any Contract providing for indemnification, contribution or any guaranty other than any indemnities contained in Contracts for the purchase, sale or license of products or services in the ordinary course of business and that are materially consistent with past practice pursuant to the Company’s standard forms, in the form made available to Parent;
(xviii) any Contract entered into since December 1, 2009, or for which the Company or its Subsidiaries have any ongoing obligations or potential Liabilities, to settle or compromise any Action, or any Action threatened in writing, other than (A) releases entered into with former employees or independent contractors of the Company which do not contain cash settlements in excess of $20,000 or (B) settlements of accounts payable in the ordinary course of business consistent with past practice. Each practice for cash amounts paid prior to September 30, 2012 which do not exceed, individually or in the aggregate, $20,000;
(xix) with respect to any customer or Referral Partner required to be specified in Section 4.25(a) of the Company Disclosure Schedule, all Contracts with such customers or Referral Partners, including any amendments thereto that exceed $100,000 in sales with respect to any customer, or commissions paid with respect to any Referral Partner, for the 12-month period ending on September 30, 2012;
(xx) with respect to any supplier required to be specified in Section 4.25(b) of the Company Disclosure Schedule, all Contracts with such suppliers where costs of goods or services purchased are over $200,000 for the 12-month period ending on September 30, 2012;
(xxi) any Contract to which any Related Person, or any of their immediate family members, is a party or has an interest in, whether directly or indirectly, other than employment, compensation and other instrumentsbenefit arrangements for services as an officer or employee thereof (each, documents and undertakings listed a “Related Person Contract”);
(xxii) any Contracts that purport to bind third-parties who were not Affiliates of the Company or its Subsidiaries on Schedule 1.68 and Schedule 2.1.4 the original date of such Contract, but that become Affiliates after the date of such Contract;
(xxiii) any Contract relating to the marketing or advertising of any products or services of the Company or its Subsidiaries in an amount exceeding $100,000 individually;
(xxiv) any Contract that is valid and enforceable in accordance with its terms, Seller and, or would be required to Seller's Knowledge any other party thereto, are in compliance be filed by the Company as a “Material Contract” with the provisions thereof, Seller SEC pursuant to Item 601(b)(iv) of Regulation S-K or disclosed by the Company in a Current Report on Form 8-K; and,
(xxv) commits the Company or any of its Subsidiaries to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to enter into any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyforegoing.
Appears in 1 contract
Sources: Merger Agreement (Telanetix,Inc)
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4, neither 5.13 lists all of the following contracts or other arrangements (written or oral) related to the Business to which the Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party or by which it or its assets are bound:
(a) contracts relating to the manufacture, purchase, distribution, marketing or sales of the Seller’s or any other Person’s products or services (other than purchase and sales orders entered into in the Ordinary Course of Business consistent with past practices and the performance of which by the parties thereto is reasonably expected to be substantially completed within sixty (60) days of the execution thereof), including all volume rebate agreements, “▇▇▇▇ and hold” or other similar arrangements, and all contracts which designate the Seller as an exclusive manufacturer or supplier of any product or service;
(b) contracts, agreements or arrangements for the employment of any officer, individual employee, or other Person on a full-time, part-time, consulting or other basis (excluding oral, at-will employment arrangements the generic terms of which are described on an aggregate basis (i.e., ranges of wages of salary, typical benefits, etc.) on Schedule 5.13);
(c) instruments, agreements or indentures relating to Funded Indebtedness or to the mortgaging, pledging or otherwise placing a Lien on any asset or group of assets of the Seller;
(d) guarantees of any obligation for borrowed money or otherwise;
(e) agreements with respect to the lending or investing of funds;
(f) leases or agreements under which the Seller is the lessee, sublessee, occupant, holder or operator of any real or personal property owned by any other party;
(g) leases or agreements under which the Seller is the lessor or sublessor of or permits any third party to occupy, hold or operate any real or personal property owned or controlled by the Seller;
(h) assignments, licenses, indemnifications or agreements with respect to any written form of intangible property, including, without limitation, any Intellectual Property or oral (for which Purchaser shall be bound following the Closing Date):confidential information;
(i) Contract contracts or groups of related contracts with the same party for the future purchase ofor sale of products or services, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or moreincluding all purchase orders and sales orders;
(iij) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)research and development agreements;
(iiik) Contract continuing over any contracts containing covenants not to compete or similar provisions (A) binding on the Seller, (B) restricting other Persons for the benefit of the Seller or (C) which otherwise restrict competition granted by the Seller in favor of a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)third party;
(ivl) representative, sales agency, dealer contracts which contain a “most favored customer” or distributor Contractsimilar provision;
(vm) lease contracts under which the amount payable by the Seller is either lessor dependent on the revenues or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement income or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking similar measure of the indebtedness of any other Person;
Business (vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor part thereof), or assign from engaging under which the Seller is obligated to pay royalties, commissions or competing in any likeness of business with similar payments to any Person;
(ixn) licensemarketing, franchiseagency, distributorship advertising, sales representative, broker, subscription, list management, printing, distribution, fulfillment or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Businesssimilar contracts; or
(xo) any other material Contract agreements or instruments which are otherwise Material to the Business, and which are not made listed in the ordinary course foregoing clauses of Seller's business consistent with past practicethis Section 5.13; (collectively, the “Material Contracts”). Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 Material Contract is valid and enforceable in accordance with its terms, against the Seller and, to Seller's Knowledge any and the other party parties thereto, are subject to applicable bankruptcy and insolvency Laws and statutes. Except as specifically disclosed on Schedule 5.13, the Seller has performed in compliance with the provisions thereof, Seller and, all respects all obligations required to Seller's Knowledge any other party thereto, are be performed by it and is not in default under or in the performance, observance or fulfillment breach of nor in receipt of any material obligation, covenant claim of default or condition contained therein, breach under any Material Contract; and no event has occurred that which with the passage of time or without the giving of notice or lapse of time, or both, both would constitute result in a default by Seller thereunder and, or breach under any such Material Contract. No other party to Seller's Knowledge, any Material Contract is in default under or in breach of such Material Contract and no event has occurred which with the passage of time or giving of notice or both would result in a default or breach under any such Material Contract. Except as disclosed on Schedule 5.13, each Material Contract is assignable by any the Seller. The unfulfilled sales orders with customers listed on Schedule 1.1(d) and the unfulfilled purchase orders entered into with suppliers listed on Schedule 1.1(d) are assignable by the Seller. The Seller has supplied the Buyer with (i) a true, correct and complete copy of each Material Contract, together with all amendments, waivers or other party changes thereto; , and (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received a reasonably complete description of all material terms of all oral agreements covered by this Section 5.13 to which the Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebya party.
Appears in 1 contract
Contracts and Commitments. (a) Except as listed and described on Schedule 1.68 and Schedule 2.1.43.12(a), neither the Seller nor any party acting on behalf is not in respect of Seller with Seller's Knowledge and consent is the Business a party to to, or subject to, any written oral or oral (for which Purchaser shall be bound following the Closing Date):written:
(i) Contract for the future purchase ofof products for resale, materials, parts or payment for, supplies or products, or for and involving any expenditure by the performance Seller of services by another party, involving in any one case more than $10,000 or more20,000;
(ii) Contract to sell for the purchase of machinery or supply products equipment or to perform servicesfor construction, and involving in any one case expenditure by the Seller of more than $10,000 or more (except for any Resident/Patient's Agreement)20,000;
(iii) Contract continuing over a period to obtain services and involving any expenditure by the Seller of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)20,000;
(iv) representativelease (as lessee) of machinery, sales agency, dealer equipment or distributor Contractother personal property requiring annual rental payments of $20,000 or more;
(v) Contract for the sale or lease under which Seller is either lessor of its products or lessee other the Purchased Assets or the furnishing of its services and involving consideration of more than with respect to the Real Property Leased$20,000;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter Contract pursuant to which a party other than the Seller has a right to renegotiate or require a reduction in price or refund of credit agreement, loan agreement or other Contract or for payments made to the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other PersonSeller;
(vii) Contract providing for any charitable payment by the Seller of liquidated damages or political contributionpenalties in the event of breach;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business contract with any Persongovernment entity;
(ix) licenseContract that relates to the acquisition of any business, franchisea material amount of stock or assets of any other Person or any real property (whether by merger, distributorship sale of stock, sale of assets or other agreementotherwise), including those that relate in whole or each case involving amounts in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how excess of or used by the Business; or$20,000;
(x) Contracts relating to indebtedness (including, without limitation, guarantees, but not agreements relating to trade receivables), in each case having an outstanding principal amount in excess of $20,000;
(xi) Contract between or among the Seller on the one hand and any Associate of Seller on the other material Contract not made in hand; and
(xii) Contracts imposing non-compete restrictions, geographic restrictions, restrictions with regard to the ordinary course passing of Seller's business consistent with past practice. time or other limits on the operation or scope of the Business.
(b) True and complete copies of all Assigned Contracts, and all amendments, supplements and modifications thereto have been delivered to Purchaser.
(c) Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 to which the Seller is subject or a party in respect of the Business is a valid and binding agreement enforceable in accordance with its terms, terms and is in full force and effect and (i) no material default by the Seller andor, to Seller's Knowledge ’s Knowledge, by any other party thereto, are in compliance with the provisions exists under any provision thereof, (ii) neither Seller and, nor its Associates have received any cancellation or non-renewal notice from any party to Seller's Knowledge a Contract or taken any other party thereto, are not in default in the performance, observance or fulfillment action that constitutes a cancellation of any material obligationof Contracts, covenant (iii) no condition or condition contained therein, and no event has occurred that with or without the giving of exists which after notice or lapse of time, time or both, both would constitute a material breach or default thereunder by the Seller thereunder andany Associate of Seller or, to Seller's ’s Knowledge, a default by any other party theretoparty; and (iiiv) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by 3.12(c), the assignment thereof pursuant to this Agreement will not result in termination of, or on behalf result in a right of termination under, any such agreement, require the consent of any party to thereto or bring into operation any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyprovision thereof.
Appears in 1 contract
Contracts and Commitments. (a) Except as listed specifically contemplated by this Agreement and described except as set forth on Schedule 1.68 and Schedule 2.1.4the "Contracts Schedule" attached hereto, neither Seller nor any party acting on behalf of Seller no Seller, with Seller's Knowledge and consent respect to the Acquired Business, is a party to any or bound by, whether written or oral (for which Purchaser shall be bound following the Closing Date):oral, any:
(i) Contract for the future purchase ofcollective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, retirement or payment forany other form of deferred compensation plan or any stock purchase, supplies stock option, hospitalization insurance or productssimilar plan or practice, whether formal or for the performance of services by another party, involving in any one case $10,000 or moreinformal;
(ii) Contract to sell contract for the employment of any officer, individual employee or supply products other person on a full-time, part-time or to perform servicesconsulting basis providing annual compensation in excess of $150,000 and not terminable without penalty, involving in any one case $10,000 severance payment or more (except for any Resident/Patient's Agreement)other expense on the part of the Seller and, after the Closing Date, the Purchaser;
(iii) Contract continuing over severance or change of control agreement or similar arrangement;
(iv) agreement or indenture relating to the borrowing of money or other Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any of its assets;
(v) contract under which any Seller has advanced or loaned any other Person amounts in the aggregate exceeding $25,000, other than trade credit extended in the Ordinary Course of Business;
(vi) agreement with respect to the lending or investing of funds;
(vii) license or royalty agreements;
(viii) guaranty of any obligation, other than endorsements made for collection;
(ix) management, consulting, advertising, marketing, promotion, technical services, advisory or other contract or other similar arrangement relating to the design, marketing, promotion, management or operation of the Acquired Business;
(x) outstanding powers of attorney executed on behalf of any Seller, other than powers of attorney granted by the Sellers in the Ordinary Course of Business to customers receiving services so that such customers may register, copyright or otherwise protect intellectual property resulting from such services;
(xi) lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other Person calling for payments in excess of $50,000 annually;
(xii) 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 and calling for payments in excess of $50,000;
(xiii) agreement or group of related agreements with the same Person for the sale or purchase of products or services under which the undelivered balance of such products and services has a price in excess of $50,000;
(xiv) agreement or group of related agreements with the same party or group of affiliated parties (including without limitation agreements with customers of the Acquired Business) involving more than $750,000 from the period from May 1, 1999 through and including April 30, 2000;
(xv) agreement with a term of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)which is not terminable upon less than 60 days notice without penalty;
(ivxvi) representativeconfidentiality agreement or similar arrangement, sales agencyother than customary confidentiality agreements with employees, dealer consultants, subcontractors or distributor Contractcustomers entered into in the Ordinary Course of Business;
(vxvii) lease under agreement which Seller is either lessor or lessee prohibits it from freely engaging in business anywhere in the world, other than agreements with respect to customers entered into in the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter Ordinary Course of credit agreement, loan agreement or other Contract or for Business which prohibit the borrowing or lending provision of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or consultants used by the Businesssuch customer to such customer's competitors; or
(xxviii) any other agreement material Contract to it (whether or not made entered into in the ordinary course Ordinary Course of Seller's business consistent Business), other than agreements with past practice. Each customers of the Acquired Business entered into in the Ordinary Course of Business.
(b) Except as disclosed on the Contracts Schedule, (i) no contract or commitment required to be disclosed on the Contracts Schedule has been breached or canceled by the other party and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, no Seller and, to Seller's Knowledge has knowledge of any anticipated breach by any other party theretoto any contract set forth on the Contracts Schedule, are (ii) no customer or supplier has indicated in compliance writing or orally to any Seller or any Insider that it intends to stop or decrease the rate of business done with any Seller or that it desires to renegotiate its contract or current arrangement with any Seller, (iii) the Sellers have performed all the material obligations required to be performed by them in connection with the provisions thereof, Seller and, contracts or commitments required to Seller's Knowledge any other party thereto, be disclosed on the Contracts Schedule and are not in default under or in the performance, observance or fulfillment breach of any material obligation, covenant contract or condition contained thereincommitment required to be disclosed on the Contracts Schedule, and no event has occurred that which, with the passage of time or without the giving of notice or lapse of time, or both, would constitute result in a default by or breach thereunder, (iv) no Seller thereunder and, has any present expectation or intention of not fully performing any obligation pursuant to Seller's Knowledge, a default by any other party thereto; (ii) except as contract set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the ContractsContracts Schedule, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iiiv) no consent or approval of any party to any Contracteach agreement set forth on the Contracts Schedule is legal, commitmentvalid, lease or other instrumentbinding, document or undertaking listed on Schedule 1.68 enforceable and Schedule 2.1.4 is required for the execution of this Agreement or in 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, correct, complete and accurate 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 for the Purchased Assets and other matters specifically contemplated by this Agreement, and except as listed and described on set forth in Schedule 1.68 and Schedule 2.1.44.11(a), neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent respect to the Business, the Company is not a party to any or bound by, and the Purchased Assets are not bound by, whether written or oral (for which Purchaser shall be bound following the Closing Date):oral, any:
(i) collective bargaining agreement or Contract for the future purchase ofwith any labor union or any bonus, commissions, pension, profit sharing, retirement or payment forany other form of deferred compensation plan or any stock purchase, supplies stock option, hospitalization insurance or productssimilar plan or practice, whether formal or for the performance of services by another party, involving in any one case $10,000 or moreinformal;
(ii) Contract to sell for the employment of any Transferred Employees listed on Schedule 7.7(a) on a full-time or supply products consulting basis or to perform servicesany notice, involving in any one case $10,000 severance or more (except for any Resident/Patient's Agreement)change-of-control agreements;
(iii) Contract continuing relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any of the Purchased Assets;
(iv) license or royalty Contract;
(v) guaranty of any obligation, other than endorsements made for collection;
(vi) 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 with the same party for the purchase or sale of supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than six months from the date hereof one year or exceeding involves a sum in excess of $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person10,000.00;
(ix) licenseContract with any Person for the purchase or supply of vegetables or berries or any other ingredient or material used in a product of the Business;
(x) Contract for the co-packaging or similar arrangement for any product of the Business;
(xi) Contract which prohibits the Company from freely engaging in the Business anywhere in the world;
(xii) Contract relating to the distribution (including with respect to systems, franchiseroutes or networks), distributorship marketing or sales of the Company’s products (the “Distribution Contracts”);
(xiii) Contract pursuant to which the Company 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 agreementContract not already listed under one of the subsections above that involves future payments, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used 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 Business or prospects of the Business, taken as a whole; or
(xxix) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each amendment, waiver or modification to any of the Contracts foregoing.
(b) Except as disclosed in Schedule 4.11(b) or as would not reasonably be expected to result in a Material Adverse Effect, (i) 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 other instrumentsthe Company has no Knowledge of any anticipated breach, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge default or cancellation by any other party theretoto any Contract set forth or required to be set forth on Schedule 4.11(a), are (ii) the Company has performed all the obligations required to be performed by it in compliance connection with the provisions thereofContracts disclosed on, Seller andand the Contracts required to be disclosed on, to Seller's Knowledge any other party thereto, are Schedule 4.11(a) and is not in default under or in the performance, observance or fulfillment breach of any material obligation, covenant or condition contained thereinsuch Contract, and no event has occurred that which with the passage of time or without the giving of notice or lapse of time, or both, both would constitute result in a default by Seller thereunder andor breach thereunder, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent the Company does not have a present expectation or approval intention of not fully performing any party obligation pursuant to any ContractContract set forth on, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 any Contract that is required for to be set forth on, Schedule 4.11(a), and (iv) each Contract with respect to the execution of this Agreement or Business is legal, valid, binding, existing, enforceable and in 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. Except as listed and described on (a) Schedule 1.68 and Schedule 2.1.4, neither 5.10 of the Disclosure Schedules contains a list of all Contracts of the following types with respect to the Purchased Business to which the Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent or Media Sub is a party to any written or oral by which the Seller or Media Sub is bound as of the date hereof (for which Purchaser shall be bound following the Closing Date“Material Contracts”):
(i) any Contract for pursuant to which the future purchase of, Seller or payment for, supplies or products, or for Media Sub received more than $50,000 over the performance of services by another party, involving in any one case $10,000 or morepast twelve (12) months;
(ii) any Contract which obligates, or in the reasonable discretion of the Seller or Media Sub is reasonably likely to sell obligate, the Seller or supply products or Media Sub to perform services, involving pay more than $50,000 over any future twelve (12) month period in any one case $10,000 or more the next five (except for any Resident/Patient's Agreement)5) years;
(iii) any indemnification, employment, “change of control,” retention, severance, consulting or other Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for with any Resident/Patient's Agreement);Business Employee; and
(iv) representativeany mortgages, sales agencyindentures, dealer guarantees, loans or distributor Contract;credit agreements, security agreements or promissory notes relating to the borrowing of money, extension of credit or other indebtedness for borrowed money by the Seller or Media Sub.
(vb) lease under which Seller Except as would not reasonably be expected to have a Material Adverse Effect, each Material Contract is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking a valid and binding obligation of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller Media Sub and, to the Knowledge of the Seller's Knowledge any , of each other party thereto, are and is in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in full force and effect. There exists no material breach or material default in the performance, observance (or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or the lapse of time, or both, would constitute a default by Seller thereunder andmaterial breach or material default) on the part of the Seller, Media Sub, their Affiliates or, to the Knowledge of the Seller's Knowledge, a default by on the part of any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 thereto under any Material Contract. To the Knowledge of the Seller, no advance payments have been received by Seller by event has occurred that with or on behalf without notice or lapse of time would permit termination, modification, or acceleration, under any Material Contract. None of the Seller, Media Sub, their Affiliates or, to the Knowledge of the Seller, any other party thereto has repudiated any material provision of any party Material Contract. With respect to any of all Material Contracts that obligate the Seller or Media Sub to meet volume, service level or similar requirements, the Seller or Media Sub, as applicable, has met all such requirements at the maximum levels required by such Material Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4(a) The Disclosure Schedule, neither under the caption referencing this Section 4.13, lists the following agreements, whether oral or written, to which Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party party, which are currently in effect, and which relate to any written the manufacture and distribution of the Products or oral (for which Purchaser shall be bound following to the Closing Date):
Assets: (i) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more;
confidentiality agreements; (ii) Contract to sell contract or supply group of related contracts with the same party for the purchase of products or to perform services, involving services under which the undelivered balance of such products or services is in any one case excess of Ten Thousand Dollars ($10,000 or more (except for any Resident/Patient's Agreement10,000);
; (iii) Contract 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 hereof or exceeding dates thereof, not terminable by it on thirty (30) days' or less notice without penalty and involving more than Ten Thousand Dollars ($10,000 10,000); (v) contract which prohibits Seller from freely engaging in value business anywhere in the world; (except vi) contract for the distribution of any Resident/Patient's Agreement);
of the Products (iv) including any distributor, sales representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, and original equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
manufacturer contract); (vii) Contract license agreement or agreement providing for any charitable the payment or political contribution;
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) Contract limiting contract or restraining Seller commitment for capital expenditures in excess of Ten Thousand Dollars ($10,000) or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship other agreement which is either material to the manufacture or other agreement, including those that relate in whole distribution of the Products or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract was not made entered into in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 which is valid and enforceable a contract to be assumed by Buyer hereunder.
(b) Seller has performed all material obligations required to be performed by it in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance connection with the provisions thereof, Seller and, contracts or commitments required to Seller's Knowledge any other party thereto, are be disclosed in the Disclosure Schedule under the caption referencing this Section 4.13 and is not in default in the performance, observance or fulfillment receipt of any claim of default under any contract or commitment required to be disclosed under such caption; Seller has no present expectation or intention of not fully performing any material obligation, covenant obligation pursuant to any contract or condition contained therein, commitment required to be disclosed under such caption; and Seller has no event has occurred that with knowledge of any breach or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default anticipated breach by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services contract or commitment required to be rendered disclosed under such caption.
(c) Prior to the date of this Agreement, Buyer has been supplied with a true and correct copy of each written contract or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease and a written description of each oral contract or commitment, referred to under the caption referencing this Section 4.13 in the Disclosure Schedule, together with all amendments, waivers or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebychanges thereto.
Appears in 1 contract
Contracts and Commitments. Except as listed and described set forth on Schedule 1.68 3(n) attached hereto (together with the Contracts listed on Schedules 3(g), 3(l)(i), 3(l)(ii), 3(r) and Schedule 2.1.43(t), neither the “Material Contracts”), such Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is not a party to any written or oral (for which Purchaser shall be bound following the Closing Date):any:
(i) Contract for the future purchase ofengagement of any Person on a full-time, part-time employment or payment forconsulting basis, supplies Contract providing severance benefits or productsContract relating to loans to officers, directors, employees or for the performance of services by another party, involving in any one case $10,000 or moreAffiliates;
(ii) Contract to sell guarantee of any Liability or supply products or to perform services, involving obligation other than for trade creditors in any one case $10,000 or more (except for any Resident/Patient's Agreement)the ordinary course of business;
(iii) Contract continuing over a period under which it is lessee of more than six months from the date hereof or exceeding $10,000 in value (holds or operates any personal property owned by any other party, except for any Resident/Patient's Agreement)lease of personal property under which the aggregate annual rental payments do not exceed $10,000;
(iv) representative, sales agency, dealer Contract under which it is a lessor of or distributor Contractpermits any third party to hold or operate any personal property owned or controlled by it;
(v) lease under which Seller is either lessor Contract or lessee other than group of related Contracts with respect to the Real Property Leasedsame party that involves consideration in excess of $25,000;
(vi) noteContract concerning confidentiality, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement non-solicitation or other Contract non-competition or for otherwise purporting to prohibit such Seller or the borrowing or lending of money (including without limitation loans to or Business from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Personfreely engaging in business;
(vii) Contract for any charitable relating to the distribution, marketing or political contributionsales of its products or services;
(viii) Contract limiting settlement, conciliation, or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Personsimilar Contract;
(ix) license, franchise, distributorship Contract or other agreementpermission that (A) such Seller has granted to, including those that relate in whole or in part received from, any third party with respect to any patentIntellectual Property (other than any off-the-shelf, trademarknon-customized, trade nameshrink-wrapped software licensed to such Seller pursuant to a non-exclusive license agreement for an aggregate purchase price of less than $10,000), service mark ▇▇ copyright or (B) relates to the development of any ideas, technical assistance Intellectual Property by such Seller for any Person or for such Seller by any Person (other know-how of or used by the Business; or
(x) any other material Contract not made than agreements entered into with employees and independent contractors in the ordinary course of Seller's business consistent on standard forms of agreement);
(x) Contracts with past practice. Each its Top Suppliers;
(xi) Contract involving any joint venture, partnership, limited liability company or any other Contract involving a sharing of profits, losses, costs, Taxes, or other Liabilities by any Seller or with any third party;
(xii) Contract providing “most favored nation” pricing or terms to any Person, with respect to the sale, distribution, license or support of any products or services of the Contracts and other instruments, documents and undertakings listed any Seller; or
(xiii) Contract containing an effective power of attorney granted by any Seller. Except as specifically disclosed on Schedule 1.68 and Schedule 2.1.4 3(n), such Seller is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in breach of, or default under, any Material Contract nor is such Seller in the performance, observance or fulfillment receipt of any material obligation, covenant claim of default or condition contained thereinbreach under any Contract to which it is a party, and no event has occurred that which with the passage of time or without the giving of notice or lapse both would result in a default, breach or event of timenoncompliance under any such Contract. To the Knowledge of the Company, or boththe other party to each such Contract has performed in all material respects all obligations required to be performed by it under such Contract. Each such Material Contract (i) is legal, would constitute a default by valid, binding and enforceable against such Seller thereunder and, to Seller's Knowledgethe Knowledge of the Company, a default by against any other party thereto; to such Contract, and (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services will continue to be rendered or products to be delivered to such party after the Closing Date; legal, valid and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed enforceable on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or identical terms following the consummation of the transactions contemplated herebyTransactions. Buyer has been supplied with a correct and complete copy of each of the Material Contracts, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Communications Systems Inc)
Contracts and Commitments. Except as listed and described on Schedule 1.68 SCHEDULE 1.67A and Schedule SCHEDULE 2.1.4, neither Seller nor any party acting on behalf of Seller is not with Seller's Knowledge and consent is respect to the Business a party to any written or oral (for which Purchaser shall be bound following the Closing Date):oral:
(i) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property LeasedProperty;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business;
(x) Contract or commitment to assign, option, sell, transfer or otherwise convey any right, title or interest of Seller in and to all or any portion of the Business; or
(xxi) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each To Seller's Knowledge, each of the Contracts contracts and other instruments, documents and undertakings listed on Schedule 1.68 SCHEDULE 1.67A, SCHEDULE 2.1.4, and Schedule 2.1.4 SCHEDULE 1.64 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, the parties thereto are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other neither party thereto, are not is in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; and (ii) except as set forth on Schedule 1.68 SCHEDULE 1.67A, SCHEDULE 2.1.4, SCHEDULE 1.64 and Schedule 2.1.4 SCHEDULE 1.65, no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases contracts and other instruments instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 thereon for services to be rendered or products to be delivered to by such party after the Closing Date; and (iii) no . Any contracts that cannot be transferred or require consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.transfer thereof are specifically
Appears in 1 contract
Contracts and Commitments. Except as listed (a) Schedules 2.1(c) and 2.1(d) lists all agreements under which Seller or its Affiliates have outstanding commitments related to the Business. Schedule 4.7 lists each of the contracts and agreements of the types described on Schedule 1.68 and Schedule 2.1.4below, neither excluding, however, any such contracts or agreements which relate exclusively to Retained Assets, to which the Seller nor or any party acting on behalf of Seller with Seller's Knowledge and consent its Affiliates is a party to any written or oral is otherwise bound as of the date hereof (for which Purchaser shall be bound following together with the Closing Dateagreements in Sections 2.1(c) and 2.1(d), the “Material Contracts”):
(i) any material Contract for or Subcontract containing covenants limiting the future purchase of, or payment for, supplies or products, or for freedom of the performance of services by another party, involving Seller to compete in any one case $10,000 line of business, with any Person or morein any area or territory;
(ii) Contract any material license, to sell which Seller is a party either as licensor or supply products licensee, that restricts Seller’s use of any of the Proprietary Rights or to perform services, involving Exclusive Seller Software in any one case $10,000 or more (except for any Resident/Patient's Agreement)connection with the Business;
(iii) [any Contract continuing over a period or Subcontract, whether exclusive or otherwise, containing expressed terms and conditions with any Person relating to the Products or Purchased Assets and the terms of more than six months from which are material to the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)Business;]
(iv) representative, sales agency, dealer agreement or distributor Contractindenture relating to Indebtedness or placing a Lien on any of the Purchased Assets or letter of credit arrangements;
(v) lease under nondisclosure or confidentiality agreements pursuant to which Seller is either lessor obligated to maintain the confidentiality of, or lessee other than with respect not to disclose, designated information related to the Real Property LeasedBusiness;
(vi) notelease or agreement under which Seller is lessee of or holds or operates any personal property leases, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of owned by any other Personparty for which the annual rent exceeds $100,000;
(vii) Contract for any charitable broker, distributor, vendor or political contributionmaintenance agreements;
(viii) Contract limiting contracts and licenses (including all inbound licenses) to which Seller is a party either as licensee or restraining Seller or licensor with respect to any successor or assign from engaging or competing in any likeness of business with any Person;Proprietary Rights; or
(ix) licenseall client and customer engagements of which Seller, franchiseat the time of the engagement or any subsequent amendment, distributorship provided for Products at non-standard rates of Seller or other agreement, including those that relate in whole non-customary terms or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how conditions of or used by the Business; orSeller.
(xb) any other material Contract not made in Subject to obtaining the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings consents listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable 4.3, the enforceability of the Material Contracts will not be affected in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default manner by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. Neither Seller nor, to the Knowledge of Seller, any other party, is in default under or in violation of, nor, to the Knowledge of each Specified Individual, is there any basis for any valid claim of default under or violation of, any Material Contract that could, individually or in the aggregate, have a Material Adverse Effect. Each Material Contract is in all material respects valid, binding and in full force and effect and is enforceable by Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law), including, without limitation, possible unavailability of specific performance, injunctive relief or other equitable remedies; and there have been no cancellations or threatened cancellations thereof nor outstanding material disputes thereunder.
Appears in 1 contract
Contracts and Commitments. Except (a) Section 4.13 of the Company Disclosure Schedule sets forth a list as listed and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent the date hereof of all material Contracts to which the Company or each Subsidiary is a party to or by which the Company, each Subsidiary or any written or oral of their respective assets are bound, except Intellectual Property Contracts, (for which Purchaser shall be bound following the Closing Date):each, a "Material Contract"), including, without limitation:
(i) any Contract for that contains a change of control clause with respect to the future purchase of, Company or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or moreSubsidiary;
(ii) any Contract that restricts the ability of the Company or any Subsidiary to sell or supply products or to perform services, involving (x) engage in any one case $10,000 business anywhere in the world, (y) solicit or more retain any customer or other party to do business, or (except for z) solicit or hire any Resident/Patient's Agreement)person to become an employee;
(iii) Contract continuing over a period Contracts with Seller or any of more its affiliates (other than six months from the date hereof Company or exceeding $10,000 in value (except for any Resident/Patient's Agreement)Subsidiary) or any officer, director or employee of Seller, the Company or any Subsidiary or any of such affiliates;
(iv) representativeContracts under which the Company or any Subsidiary has borrowed or loaned money or granted any Liens, sales agencyor any note, dealer bond, indenture or distributor Contractother evidence of indebtedness for borrowed or loaned money or any guarantee of such indebtedness, in each case, relating to amounts in excess of $100,000;
(v) lease under which Seller is either lessor or lessee other than with respect Contracts relating to the Real Property Leasedacquisition or disposition of any business or assets outside the ordinary course of business consistent with past practice since January 1, 2004 (whether by merger, sale of stock, sale of assets or otherwise);
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement joint venture agreements or other Contract or for Contracts involving the borrowing or lending sharing of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Personprofits;
(vii) Contract for any charitable or political contributionindemnification agreements other than in the ordinary course of business;
(viii) any Contract limiting or restraining Seller of the Company or any successor or assign from engaging or competing in any likeness of business Subsidiary with any Personlabor union or any collective bargaining agreement;
(ix) licenseany stockholders agreement, franchiseregistration rights agreement, distributorship voting agreement or other agreement, including those that relate in whole similar agreement to which the Company or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; orSubsidiary is subject;
(x) leases pursuant to which personal property or Real Property is leased to or from the Company or any Subsidiary;
(xi) powers of attorney from the Company or any Subsidiary;
(xii) guaranties, suretyships or other material contingent agreements of the Company or any Subsidiary;
(xiii) Contracts pursuant to which the Company or any Subsidiary expects to receive or expend in excess of $150,000 over the life of the Contract not made or $50,000 annually; and
(xiv) any outstanding written or otherwise binding commitment to enter into any agreement of the type described in subsections (i) through (xiii) of this Section 4.13(a).
(b) Seller has provided to Buyer complete copies of all of the ordinary course of Seller's business consistent with past practiceMaterial Contracts. Each of the Contracts Material Contract is in full force and other instruments, documents effect and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable binding on the Company or its Subsidiary, as applicable, in accordance with its terms, Seller andsubject to the Enforceability Exceptions, other than Material Contracts that by their terms have expired consistent with the terms thereof and Section 6.1 since the date hereof.
(c) None of the Company, any Subsidiary or, to the knowledge of Seller's Knowledge , any other person who is a party theretothereto is in material breach or violation of, are in compliance with or default under, any Material Contract and to the provisions thereofknowledge of Seller, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that which would result in a material breach of or default under, require any material consent or other action by any person under, or give rise to any material penalty or right of termination, cancellation or acceleration of any material right or obligation of the Company or any Subsidiary or to a loss of any material benefit to which the Company or any Subsidiary is entitled under (in each case, with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by ) any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Material Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Contracts and Commitments. Except as listed (a) Schedule 2.6 sets forth a true and described on Schedule 1.68 accurate list of the following Contracts and Schedule 2.1.4, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party commitments relating to any written or oral (for which Purchaser shall be bound following the Closing Date):Businesses:
(i) any Contract requiring the expenditure or series of related expenditures of funds in excess of $10,000, other than purchase orders entered into in the Ordinary Course of Business for goods necessary for the future Seller to complete then existing contracts or purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or moreorders;
(ii) Contract any loan or advance to, or investment in, any Person or any agreement, contract, commitment or understanding relating to sell the making of any such loan, advance or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)investment;
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)Debt Obligations;
(iv) representativeany management service, sales agencyemployment, dealer consulting, leased employee or distributor Contractother similar type of Contract or arrangement;
(v) lease under which Seller is either lessor any license, royalty or lessee other than with respect to the Real Property Leasedsimilar agreement;
(vi) note, debenture, bond, conditional sale any collective bargaining agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) any Contract for or arrangement pursuant to which Seller grants or is granted any charitable license or political contributionother rights to use any of the assets or any rights of joint use with respect to any of the assets, other than any Personal Property Lease;
(viii) any Contract limiting or restraining Seller or any successor or assign from engaging or competing not made in any likeness the Ordinary Course of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those Business that relate is to be performed in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright on or to any ideas, technical assistance or other know-how after the date of or used by the Businessthis Agreement; orand
(xix) any other material Contract not made in specified above that is material to the ordinary course Businesses. The Seller has delivered to the Buyer true and accurate copies of Seller's business consistent with past practice. Each each document set forth on Schedule 2.6 as amended or modified and each of the Contracts and other instrumentsincluded in the Purchased Contracts as amended or modified.
(b) To Seller's Knowledge, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 each of the Purchased Contracts is valid and enforceable by the Seller in accordance with its terms. The Seller has performed all of, Seller andand is not in default with respect to, its material obligations under any of the Purchased Contracts and to the Seller's Knowledge any Knowledge, other party theretoparties thereto have performed all of, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, and are not in default in the performancewith respect to, observance their material obligations thereunder. The Seller has not given nor received any notice of termination or fulfillment cancellation of any material obligation, covenant or condition contained therein, and no event has occurred that with or without Purchased Contracts. Schedule 2.6 also sets forth a listing of all Purchased Contracts requiring the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf consent of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services them to be rendered or products transferred to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyBuyer.
Appears in 1 contract
Contracts and Commitments. Except as listed and described set forth on Schedule 1.68 and Schedule 2.1.44.1.11, neither Seller nor any party acting on behalf of Seller is not, with Seller's Knowledge and consent is respect to the Division, a party to any written or oral (for which Purchaser shall be bound following the Closing Date):written:
(ia) Contract agreement, contract or commitment with any present or former employee or consultant, or for the employment of any person, including any consultant, who is engaged in the conduct of the Business;
(b) agreement, contract or commitment for the required future purchase of, or payment for, supplies or products, or for the performance of services by another a third party, used in the conduct of the Business involving in any one case $10,000 25,000 or more;
(iic) Contract agreement, contract or commitment to sell or supply products or to perform services, services in connection with the Business involving in any one case $10,000 25,000 or more (except for any Resident/Patient's Agreement)more;
(iiid) Contract continuing over a period of more than six months from distribution, dealer, representative or sales agency agreement, contract or commitment relating to the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)Business;
(iv) representative, sales agency, dealer or distributor Contract;
(ve) lease under which Seller is either lessor or lessee other than with respect relating to the Real Property LeasedAcquired Assets or any property at which the Acquired Assets are located involving in any one case required annual payments of $25,000 or more;
(vif) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter commitment or agreement for any required capital expenditure or leasehold improvement in excess of credit agreement, loan agreement $25,000 (individually or other Contract or for in the borrowing or lending of money (including without limitation loans aggregate) relating to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other PersonBusiness;
(viig) Contract for any charitable agreement, contract or political contribution;
(viii) Contract commitment limiting or restraining Seller the Division or any successor or assign thereto from engaging or competing in any likeness manner or in any business, nor, to Seller's knowledge, is any employee of business with Seller engaged in the conduct of the Business subject to any Person;such agreement, contract or commitment; or
(ixh) license, franchise, distributorship or other agreement, agreement including those that relate the required payment or receipt of more than $25,000 which relates in whole or in part to any patentsoftware, trademark, trade namepatent, service mark ▇▇ copyright copyright, the name "Circuit Test" or to any ideas, technical assistance or other know-how of or used by Seller in the conduct of the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts agreements, contracts, commitments, leases, plans and other instruments, documents and undertakings listed on in Schedule 1.68 and Schedule 2.1.4 4.1.11 or not required to be listed therein because of the amount thereof under which Buyer is to acquire rights or obligations hereunder is valid and enforceable in accordance with its terms. Each agreement, Seller and, to Seller's Knowledge any other party thereto, are in compliance with contract or commitment described therein which requires the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf consent of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of its assignment in connection with the transactions contemplated herebyhereby is appropriately identified as such.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.11 identifies all material contracts, agreements, and commitments to which any Corporate Seller is a party or by which any Corporate Seller is bound. Except as listed for contracts, agreements, and described commitments identified on Schedule 1.68 and Schedule 2.1.4SCHEDULE 4.11, neither no Corporate Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to or bound by any written oral or oral (for which Purchaser shall be bound following the Closing Date):written:
(ia) Contract Contract, agreement, or commitment for employment or personal services or any severance agreement that is not terminable, without liability or expense, by such Corporate Seller on 30 days' or less notice;
(b) Dealer, distributor, sales agency, or brokerage agreement;
(c) Contract, agreement, or commitment relating to the lease or sale to or by others of the California Real Property or the Leased Real Property;
(d) Contract, agreement, or commitment for capital expenditures in excess of $10,000 for any one project or $25,000 in the aggregate;
(e) Contract, agreement, or commitment for the future purchase of, or payment for, sale of materials or supplies or products, or for the performance of services by another party, involving in any one case that involves more than $10,000 50,000 or morewill not be fulfilled within 30 days from the date of this Agreement;
(iif) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent business;
(g) Rebate arrangement or other similar agreement given to any customer or received from any supplier;
(h) Consignment, ledger balance inventory, or similar contract with past practiceeither a supplier or a customer;
(i) Any contract, agreement or commitment containing provisions relating to noncompetition, nondisclosure or the protection of proprietary rights; or
(j) Any other material contract. Each Except as disclosed on SCHEDULE 4.11, each Corporate Seller has in all material respects performed and is performing all obligations required to be performed by it, and no Corporate Seller nor to the best of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge Sellers' knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not is in default in the performanceunder any contract, observance agreement, or fulfillment commitment to which any Corporate Seller is a party. No Corporate Seller has received any notice of default under any material obligationsuch contract, covenant agreement, or condition contained thereincommitment, and no nor has any event has occurred that which with or without the giving of notice or lapse of time, time or both, both would constitute a default by such Corporate Seller thereunder andthereunder. None of such contracts, agreements, or commitments is subject to Seller's Knowledge, a default any impending cancellation or breach. No Corporate Seller is bound by any other party theretocommitments for the performance of services or delivery of products in excess of its ability to provide such services or deliver such products during the time available to satisfy such commitments; (ii) except as set forth all outstanding commitments for the performance of services or delivery of products were made on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party a basis calculated to any produce a profit under the circumstances prevailing when such commitments were made. The net accounts receivable of the ContractsCorporate Sellers at Closing will be fully collectible. To the extent such net accounts receivable are not fully collectible, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebySellers will indemnify Buyer.
Appears in 1 contract
Contracts and Commitments. Except Schedule 4.10 hereto sets forth, as listed and described on Schedule 1.68 and Schedule 2.1.4of the date of this Agreement, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent each Contract to which the Company is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):
(i) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made Employee Plans and purchase orders entered into in the ordinary course of Seller's business consistent business), (a) with past practice. Each respect to amounts, obligations, or transaction values in excess of $100,000; (b) with terms of greater than two years, which is material and which cannot be terminated on 90 or fewer days notice; (c) governing the borrowing of a material amount of money or the guarantee of the Contracts repayment of borrowed money; (d) containing covenants in any material respect limiting the freedom of the Company to compete in any line of business or with any Person or in any geographic area or market; (e) with any directors, officers, shareholders or Affiliates of the Company; (f) granting to any Person a first refusal, first offer or similar preferential right to purchase or acquire any material right, asset or property of the Company; (g) pertaining to the lease of equipment or other personal property (except for personal property leases having a value per item or aggregate payments of less than $100,000); (h) that is a union contract or collective bargaining agreement; or (i) regarding the acquisition of any business enterprise whether via stock or asset purchase or otherwise. Sellers have made available to Buyer true, correct and other instrumentscomplete copies of each such Contract, documents and undertakings as amended to the date of this Agreement (and, in the case of any such Contract that is oral, have provided Buyer with a written summary of the material terms of such oral Contract). As of the date of this Agreement, each Contract listed on Schedule 1.68 4.10 hereto (or required to be listed on Schedule 4.10 hereto) is a valid, binding and Schedule 2.1.4 is valid and enforceable obligation of the Company enforceable in accordance with its terms, Seller andother than with respect to the Remedies Exceptions. With respect to each of the Contracts listed on Schedule 4.10 hereto (or required to be listed on Schedule 4.10 hereto): (i) neither the Company nor, to such Seller's Knowledge ’s knowledge, any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not thereto is in default under or in the performanceviolation of such Contract; (ii) to such Seller’s knowledge, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that that, with or without the giving of notice or lapse of time, time or both, would constitute such a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf violation of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing DateContract; and (iii) no consent the Company has not made any material waiver or approval of any party release with respect to any of its rights under any such Contract, commitmentexcept, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for in the execution of this Agreement or the consummation case of the transactions contemplated herebyforegoing clauses (i) and (ii), for defaults or violations caused by any Affiliate of Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ameron International Corp)
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4(a) The Company's Disclosure Schedule, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent under the caption referencing this Section 3.15, lists the following agreements, whether oral or written, to which the Company is a party party, which are currently in effect, and which relate to any written or oral (for which Purchaser shall be bound following the Closing Date):
operation of the Company's business: (i) Contract collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described under the caption referencing Section 3.20 hereof (or excluded by such Section from inclusion thereunder) in the Company's 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 3.20 hereof in the Company's Disclosure Schedule (or excluded by such Section from inclusion thereunder); (iv) stock purchase or stock option plan; (v) contract for the future purchase employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person; (vi) confidentiality agreement; (vii) contract, agreement or understanding relating to the voting of Common Stock or the election of directors of the Company; (viii) 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; (ix) guaranty of any obligation for borrowed money or otherwise; (x) lease or agreement under which it is lessee of, or payment forholds or operates any property, supplies real or productspersonal, owned by any other party, for which the annual rental exceeds $10,000; (xi) 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; (xii) contract or group of related contracts with the same party for the performance purchase of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services under which the undelivered balance of such products or services is in excess of $10,000; (xiii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $10,000; (xiv) 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, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding dates thereof, not terminable by it on 30 days' or less notice without penalty and involving more than $10,000 10,000; (xv) contract which prohibits the Company from freely engaging in value business anywhere in the world; (except xvi) contract for the delivery or distribution of the Company's services or products (including any Resident/Patient's Agreement);
(iv) representativedistributor, sales agency, dealer and original equipment manufacturer contract); (xvii) franchise agreement; (xviii) license agreement or distributor Contract;
agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed under the caption referencing Section 3.16 hereof in the Company's Disclosure Schedule; (vxix) lease under contract or commitment for capital expenditures in excess of $10,000; (xx) agreement for the sale of any capital asset; (xxi) contract with any affiliate which Seller in any way relates to the Company (other than for employment on customary terms); or (xxii) other agreement which is either lessor or lessee other than with respect material to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement Company's business or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract was not made entered into in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable business.
(b) The Company has performed all obligations required to be performed by it in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance connection with the provisions thereof, Seller and, contracts or commitments required to Sellerbe disclosed in the Company's Knowledge any other party thereto, are Disclosure Schedule under the caption referencing this Section 3.15 and is not in receipt of any claim of default in under any contract or commitment required to be disclosed under such caption; the performance, observance Company has no present expectation or fulfillment intention of not fully performing any material obligation pursuant to any contract or commitment required to be disclosed under such caption; and the Company has no knowledge of any material obligation, covenant breach or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default anticipated breach by any other party thereto; to any contract or commitment required to be disclosed under such caption.
(iic) except as set forth on Schedule 1.68 Prior to the date of this Agreement, Purchaser and Schedule 2.1.4 no advance payments Merger Subsidiary have been received by Seller by supplied with a true and correct copy of each written contract or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease and a written description of each oral contract or commitment, referred to under the caption referencing this Section 3.15 in the Company's Disclosure Schedule, together with all amendments, waivers or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebychanges thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as listed and described on set forth in Section 3.16 or in the "Contracts Schedule" attached hereto as Schedule 1.68 and 3.10(a) or in the "Customer Contracts Schedule" attached hereto as Schedule 2.1.43.10(d), neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is not a party to any written or oral (for which Purchaser shall be bound following the Closing Date):any:
(i) Contract for the future purchase ofbonus, pension, profit sharing, retirement or deferred compensation plan or stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal, or payment for, supplies severance agreements or products, or for the performance of services by another party, involving in any one case $10,000 or morearrangements;
(ii) Contract to sell contract with any labor union or supply products contract for the employment of any officer, individual employee or to perform servicesother person on a full-time, involving in any one case $10,000 part-time or more (except for any Resident/Patient's Agreement)consulting basis;
(iii) Contract mortgaging, pledging or otherwise placing a lien on any of the Purchased Assets;
(iv) guarantee of any obligation for borrowed money or otherwise, other than endorsements made for collection in the ordinary course of business;
(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;
(viii) 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 other than the Customer Contracts (as defined in Section 3.10(d) hereof);
(x) other contract related to the Business with any party continuing over a period of more than six months from the date hereof or exceeding $10,000 in value dates thereof, not terminable by it on thirty (except for any Resident/Patient's Agreement)30) days' or less notice without penalties;
(ivxi) representative, sales agency, dealer or distributor Contractcontract which prohibits it from freely engaging in business anywhere in the world;
(vxii) lease under which Seller is either lessor or lessee other than with respect contract relating to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter distribution of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans its products as it relates to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(xxiii) any other material Contract agreements related to the Business whether or not made entered into in the ordinary course of Seller's business consistent with past practice. Each of business.
(b) Except as specifically disclosed in the Contracts and other instrumentsSchedule or the Customer Contracts Schedule, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable (i) no contract or commitment related to the Business has been breached in accordance with its terms, any respect by the Seller and, or to Seller's Knowledge knowledge no contract or commitment related to the Business has been breached in any respect by the other party theretothereto or canceled by the other party, are (ii) since December 31, 1997, no supplier of the Business has notified Seller that it shall stop or decrease in compliance any material respect the rate of business done with Seller, (iii) Seller has in all material respects performed all the provisions thereof, Seller and, obligations required to Seller's Knowledge any other party thereto, are be performed by it to the date of this Agreement and is not in default in the performance, observance or fulfillment receipt of any claim of default under any material obligationlease, covenant contract, commitment or condition contained therein, and other agreement related to the Business to which it is a party; (iv) no event has occurred that which with the passage of time or without the giving of notice or lapse both would 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, except for any such event that would not have a Material Adverse Effect; 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) CBI has been supplied with a true and correct copy of timeall written contracts which are referred to on the Contract Schedule and Customer Contracts Schedule, together with all amendments, waivers or bothother changes thereto.
(d) Seller has no knowledge of any (i) pending or threatened termination, would constitute a default by Seller thereunder andcancellation, to limitation, modification or change in any of Seller's Knowledge, a default by business relationship with any other party thereto; customer or group of customers related to the Business or (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by changes or on behalf pending changes in any business relationship or other circumstance that could result in the loss of any party customers related to any the Business after the date hereof. Each contract, agreement or lease with customers of Seller relating to the Business ("Customer Contracts") are in one of the Contractsforms attached to the "Customer Contract Schedule" attached hereto as Schedule 3.10(d), commitmentsexcept for completion of blanks and have not been modified with respect to the limitations on liability or service charge increase provisions, leases whether in writing, orally, by course of dealings or otherwise, and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 Seller is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.not providing or
Appears in 1 contract
Sources: Asset Purchase Agreement (Clark/Bardes Holdings Inc)
Contracts and Commitments. Except as listed and described (a) Set forth on Schedule 1.68 and Schedule 2.1.4, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent 4.13 is a party to any complete list of each written or oral (for agreement or instrument to which Purchaser shall be bound following the Closing Date):Company or any Subsidiary is a party, of the type or nature described below:
(i) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract contract not made in the ordinary course of Sellerbusiness, other than the Transaction Documents;
(ii) consulting agreement, independent contractor agreement, bonus agreement, commission agreement or contract for the employment of any employee or other person on a full-time, part-time or consulting basis;
(iii) contract or collective bargaining agreement with any labor union;
(iv) contract for the purchase or sale of Real Property or capital or fixed assets in excess of $25,000;
(v) agreement or contract for the purchase of materials, supplies, equipment or services in excess of normal requirements, in each case, which require or could be reasonably expected to require expenditures by the Company or any Subsidiary in excess of $25,000 per annum;
(vi) agreement or contract with a cruise line or other business entity designed to introduce customers to the Company's business consistent stores;
(vii) agreement or contract that is (A) is with past practice. Each a significant customer or supplier, (B) is not terminable upon notice of 30 days or less without cost or liability resulting from such termination, or (C) any distribution agreement with a merchandise supplier;
(viii) agreement, mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing or lending of money or extension of credit or providing for the mortgaging or pledging of, or otherwise placing a lien, security interest or encumbrance on, any of the Contracts assets of the Company or any Subsidiary;
(ix) option, warrant or other contract for the purchase of any debt or equity security of any corporation or entity, or for the issuance, sale or registration for sale of any debt or equity security, other than the Registration Rights Agreement, or for the conversion of any obligation, instrument or security into debt or equity securities, of the Company or any Subsidiary;
(x) guaranty or indemnity of or with respect to any obligation for borrowed money, credit or otherwise, excluding endorsements made for collection in the ordinary course of business;
(xi) settlement agreement of any administrative or judicial proceedings within the past five years;
(xii) contracts and other instrumentsagreements containing covenants under which the Company, documents any Subsidiary, any key employee of the Company or any Subsidiary may not compete in a line of business, with a particular person or entity (other than the Company or any Subsidiary), or in a particular geographic area;
(xiii) license agreement for any intellectual property, including trademarks, trade names and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge service marks; or
(xiv) any other party theretocontract or agreement which is material to the business, are business prospects or assets of the Company or the termination of which would have or could be reasonably expected to have a Material Adverse Effect (other than Property Leases and Title Documents).
(b) Neither the Company nor any Subsidiary is in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not breach of or in default under any agreement or instrument listed in Schedule 4.13 (collectively, the performance, observance or fulfillment of any material obligation, covenant or condition contained therein"Contracts"), and no event has occurred that that, with or without the giving of notice or lapse of time, time or both, would constitute such a breach or default by Seller thereunder andthe Company, to Seller's Knowledge, a default by any Subsidiary or any other party thereto; (ii) except as set forth on Schedule 1.68 , except, in each case, any such breach or default which would not give rise to a right to terminate or alter the material terms of any such Contract. True and Schedule 2.1.4 no advance payments complete copies of the Contracts have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyBuyer.
Appears in 1 contract
Contracts and Commitments. (i) Except as listed and described on Schedule 1.68 and Schedule 2.1.4expressly contemplated by this Financing Agreement or the Purchase Agreement, neither Seller nor any party acting on behalf or as shown in the Development Letter, as of Seller with Seller's Knowledge and consent the date hereof the Company is not a party to any written or oral (for which Purchaser shall be bound following the Closing Date):oral;
(iA) Pension, 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 or arrangement or any severance agreements;
(B) Contract for the future purchase ofemployment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis, other than in the ordinary course of business, or payment forcontract relating to loans to officers, supplies directors, employees or products, or for the performance of services by another party, involving in any one case $10,000 or moreAffiliates;
(iiC) Contract under which the Company has advanced or loaned funds to sell or supply products or to perform servicesany Person, involving in any one case $10,000 or more (except for any Resident/Patient's Agreementother than as provided under Paragraph 3.1(1)(x);
(iiiD) Contract continuing over Agreement or indenture relating to the borrowing of money or the mortgaging, pledging or otherwise placing a period Lien on any asset of more the Company, other than six months from in the date hereof ordinary course of business and not exceeding in the aggregate the sum of $250,000.00;
(E) Guarantee of any obligation;
(F) Lease or exceeding $10,000 in value (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 Resident/Patient's Agreement)lease of real or personal property under which the aggregate annual rental payments do not exceed $1,000,000;
(ivG) representativeLease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, sales agencyreal or personal, dealer owned or distributor Contractcontrolled by the Company;
(vH) lease under Without the prior written approval of MCC, and except for equipment purchased or contracted to be purchased in connection with the provision of Cellular Service, contract or group of related contracts with the same party or group of affiliated parties the performance of which Seller is either lessor involves a consideration in excess of $100,000;
(I) Assignment, license, indemnification or lessee other than agreement with respect to the Real Property Leased;
any intangible property (vi) noteincluding, debenturewithout limitation, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideascopyright, technical assistance or other know-how of how, trade secret or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.confidential information);
Appears in 1 contract
Sources: Financing and Security Agreement (International Wireless Communications Holdings Inc)
Contracts and Commitments. (a) Except as listed and described on set forth in Section 3.16 or in the "Commissions Schedule" attached hereto as Schedule 1.68 and 1.2(i) or in Schedule 2.1.41.4(c) attached hereto or in the "Contracts Schedule" attached hereto as Schedule 3.10(a) or in the "Customer Contracts Schedule" attached hereto as Schedule 3.10(d), neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent the Company is not a party to any written or oral (for which Purchaser shall be bound following the Closing Date):any:
(i) Contract for the future purchase ofbonus, pension, profit sharing, retirement or deferred compensation plan or stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal, or payment for, supplies severance agreements or products, arrangements or for contracts requiring the performance of services by another party, involving in any one case $10,000 or moreCompany to pay post-retirement medical benefits;
(ii) Contract to sell contract for the employment of any officer, individual employee or supply products other person on a full-time, part-time or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)consulting basis;
(iii) Contract mortgaging, pledging or otherwise placing a lien on any of the Closing Assets or the Interests;
(iv) guarantee of any obligation for borrowed money or otherwise, other than endorsements made for collection in the ordinary course of business;
(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;
(viii) 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 any customer for the purchase or sale of products or services other than the Customer Contracts (as defined in Section 3.10(d) hereof);
(x) other contract related to the Business with any party continuing over a period of more than six months from the date hereof or exceeding $10,000 in value dates thereof, not terminable by it on thirty (except for any Resident/Patient's Agreement)30) days' or less notice without penalties;
(ivxi) representative, sales agency, dealer or distributor Contractcontract which prohibits it from freely engaging in business anywhere in the world;
(vxii) lease under which Seller is either lessor or lessee other than with respect contract relating to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter distribution of credit agreement, loan agreement its products or other Contract or for the borrowing or lending performance of money (including without limitation loans services as it relates to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(xxiii) any other material Contract agreements related to the Business whether or not made entered into in the ordinary course of Seller's business consistent with past practice. Each business.
(b) Except as specifically disclosed on Schedule 3.10(b) (the Contract Exception Schedule), (i) no contract or commitment related to the Business has been breached in any respect by the Company or, to the best knowledge of the Contracts Company and the Members, breached or canceled by the other instrumentsparty, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable (ii) since December 31, 1999, no carrier of the Business has notified the Company that it shall stop or decrease in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance material respect the rate or volume of business done with the provisions thereofCompany, Seller and, (iii) the Company has in all material respects performed all the obligations required to Seller's Knowledge any other party thereto, are be performed by it to the date of this Agreement and is not in default in the performance, observance or fulfillment receipt of any claim of default under any material obligationlease, covenant contract, commitment or condition contained therein, and other agreement related to the Business to which it is a party; (iv) no event has occurred that which with the passage of time or without 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 3.10(b), the Company and the Members have no knowledge of any (i) pending or threatened termination, cancellation, limitation, modification or change in any of the Company's business relationship with any customer, carrier, producer 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 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 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, time or both, would constitute a an event of default by Seller thereunder andthe Company under any Customer Contract or, to Seller's Knowledgethe best knowledge of the Company or the Members, a there is no existing default by any other third party thereto; or event or condition which, with notice or lapse of time or both, would constitute an event of default by any third party under any Customer Contract, (iiC) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have Customer Contract has been received amended, modified, supplemented or otherwise altered orally, in writing or by Seller by or on behalf course of any party to any of the Contractsconduct, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iiiD) no consent or approval of any party to any Contracteach Customer Contract complies with all applicable laws, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 rules and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyregulations.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Clark/Bardes Inc)
Contracts and Commitments. Except Seller represents and warrants to Buyer as listed follows:
(a) Other than leases for the Facilities and described on as otherwise set forth in Schedule 1.68 3.05(a) of the Disclosure Schedule, none of the Transferred Assets are subject to, and Schedule 2.1.4, neither the Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is not a party to any written or oral (for which Purchaser shall be bound following the Closing Date):by:
(i) Contract any agreement, contract or commitment requiring the expenditure or series of related expenditures of funds in excess of $10,000 in any fiscal year (other than purchase orders in the ordinary course of business for goods necessary for the future Seller to complete then existing contracts or purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or moreorders);
(ii) Contract to sell any agreement, contract or supply products commitment requiring the payment for goods or to perform services whether or not such goods or services are actually provided or the provision of goods or services at a price less than the Seller’s cost of producing or supplying such goods or providing such services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period any loan or advance to, or investment in, any Person or any agreement, contract, commitment or understanding relating to the making of more than six months from the date hereof any such loan, advance or exceeding $10,000 in value (except for any Resident/Patient's Agreement)investment;
(iv) representativeany contract, sales agencyagreement, dealer indenture, note or distributor Contractother instrument relating to the borrowing of money or any guarantee or other contingent liability in respect of any indebtedness or obligation of any Person (other than the endorsement of negotiable instruments for deposit or collection in the ordinary course of business);
(v) lease under which Seller is either lessor any management service, employment, consulting or lessee other than with respect to the Real Property Leasedsimilar type contract or agreement;
(vi) note, debenture, bond, conditional sale any agreement, equipment trust agreementcontract or commitment that would limit the freedom of the Buyer or any affiliate thereof following the Closing Date to engage in any line of business, letter of credit agreementto own, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guaranteeoperate, sell, transfer, pledge or undertaking otherwise dispose of or encumber any of the indebtedness of Transferred Assets or to compete with any other PersonPerson or to engage in any business or activity in any geographic area;
(vii) Contract any agreement, lease, contract or commitment or series of related agreements, leases, contracts or commitments not entered into in the ordinary course of business or, except for any charitable agreements to purchase or political contributionsell goods and services entered into in the ordinary course of business of the Seller, not cancelable by the Seller without penalty to the Seller within 30 calendar days;
(viii) Contract limiting other than in respect of the Seller’s customary general warranty for goods sold as described on Schedule 3.13(a) to the Disclosure Schedule, any agreement or restraining contract obligating the Seller or that would obligate or require any successor subsequent owner of the Business or assign from engaging any of the Transferred Assets to provide for indemnification or competing in contribution with respect to any likeness of business with any Personmatter;
(ix) license, franchiseany sales, distributorship or other agreement, including those that relate in whole similar agreement relating to the products sold or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used services provided by the Business; orSeller;
(x) any other license, royalty or similar agreement;
(xi) any contract requiring performance by Seller for a period of one year or more or requiring Seller to purchase or sell a stated portion of its requirements or outputs;
(xii) any contract regarding the acquisition by Seller of any operating business or material Contract not made in assets or the ordinary course capital stock of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any Person; or
(xiii) any other party theretoagreement, are in compliance with the provisions thereof, contract or commitment that might reasonably be expected to have a Material Adverse Effect.
(b) Seller and, to Seller's Knowledge any other party thereto, are is not in default in the performance, observance or fulfillment material breach of any provision of, or is in material obligation, covenant default (or condition contained therein, and no knows of any event has occurred or circumstance that with or without the giving of notice notice, or lapse of time, time or both, would constitute an event of default) under the terms of any of the Contracts and Other Agreements that constitute a default by Seller thereunder and, to part of the Transferred Assets. All of the Contracts and Other Agreements that constitute a part of the Transferred Assets are in full force and effect. To Seller's Knowledgeknowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 there are no advance payments have been received by Seller by pending or on behalf of any party threatened disputes with respect to any of the Contracts, commitments, leases Contracts and other instruments listed on Schedule 1.68 Other Agreements.
(c) The enforceability of the Contracts and Schedule 2.1.4 for services to Other Agreements that constitute a part of the Transferred Assets will not be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of affected in any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for manner by the execution and delivery of this Agreement or the consummation of the transactions contemplated herebyhereby and none of the Contracts and Other Agreements that constitute a part of the Transferred Assets require the receipt of the consent or waiver of any Person or Governmental Entity prior to the sale, assignment, transfer, conveyance or delivery thereof pursuant to this Agreement.
Appears in 1 contract
Contracts and Commitments. (a) Except as listed specifically contemplated by this Agreement and described on except as set forth in Schedule 1.68 and 3.8, Schedule 2.1.43.9, neither Schedule 3.10 or Schedule 3.15, Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is not a party to any or bound by, whether written or oral (for which Purchaser shall be bound oral, any of the following the Closing Date):executory agreements or arrangements if an Assumed Contract or an Assumed Liability:
(i) Contract contract for the future purchase ofemployment of any officer, individual employee or payment forother person on a full-time, supplies part-time, consulting or productsother basis or contract relating to loans to officers, directors, employees or for the performance of services by another party, involving in Affiliates or any one case $10,000 or moreseverance agreements;
(ii) Contract agreement or indenture relating to sell or supply products the borrowing of money or to perform servicesmortgaging, involving in pledging or otherwise placing a Lien on any one case $10,000 or more (except for any Resident/Patient's Agreement)of the Purchased Assets;
(iii) Contract continuing over guarantee of any obligation for borrowed money or otherwise in excess of $10,000;
(iv) material license or royalty agreements relating to the Purchased Assets (other than off-the-shelf software);
(v) material lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other party which constitutes a period part of the Purchased Assets;
(vi) lease or agreement under which it is lessor of or permits any third party to hold or operate any Purchased Assets owned or controlled by Seller;
(vii) contract relating to the distribution, marketing or sales of its products or the products of others by the Business;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in excess of $25,000, other than purchase orders cancelable upon less than 30 days notice;
(ix) assignment, license, indemnification or agreement with respect to any Intangible Property (other than off-the-shelf software);
(x) warranty agreement with respect to its services rendered or its products sold or leased;
(xi) agreement relating to any business acquisition, merger, sale or purchase of substantial assets, equity financings, recapitalizing or reorganizations;
(xii) agreement involving payments in excess of $10,000 with a term of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)which is not terminable by Seller upon less than 30 days notice without penalty;
(ivxiii) representative, sales agency, dealer contract or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or prohibiting it from Employees) or guarantee, pledge or undertaking of the indebtedness of freely engaging in any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging business or competing anywhere in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Businessworld; or
(xxiv) any other agreement which is material Contract not made in to the ordinary course of Seller's business consistent with past practice. Each Business.
(b) All of the Contracts contracts, agreements and other instrumentsinstruments set forth on Schedule 3.9 are valid, documents binding and undertakings enforceable against Seller in accordance with their respective terms. Seller has performed in all material respects all obligations required to be performed by it under the contracts, agreements and instruments listed on Schedule 1.68 3.9 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default under or in the performance, observance or fulfillment breach of nor in receipt of any material obligationclaim (other than credit or debit memos of less than $60,000) of default or breach under any contract, covenant agreement or condition contained therein, and instrument listed on Schedule 3.9; no event has occurred that which with the passage of time or without the giving of notice or lapse both would result in a default, breach or event of time, or both, would constitute a default noncompliance by Seller thereunder andunder any contract, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth agreement or instrument listed on Schedule 1.68 and Schedule 2.1.4 3.9 ; Seller does not have any present expectation or intention of not fully performing all such obligations; Seller has no advance payments have been received by Seller by or on behalf Knowledge of any breach or anticipated breach by the other parties to any contract, agreement, instrument or commitment listed on Schedule 3.9; and Seller is not a party to any contract or commitment which would have a Material Adverse Effect.
(c) Seller has provided Designated Buyer with a true and correct copy of the Contracts, commitments, leases and other instruments listed all written contracts which are required to be disclosed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract3.9, commitmentin each case together with all amendments, lease waivers or other instrument, document or undertaking listed changes thereto (all of which are disclosed on Schedule 1.68 3.9). Schedule 3.9 contains an accurate and Schedule 2.1.4 is required for the execution complete description of this Agreement or the consummation all material terms of the transactions contemplated herebyall oral contracts referred to therein.
Appears in 1 contract
Contracts and Commitments. Except Schedule 2.19 contains a true, complete and correct list (and Seller has previously delivered to Parent and Buyer true, complete and correct copies) of all of the following documents or agreements, or summaries of material oral agreements or understandings, which have financial obligations of at least CDN$50,000, to the extent applicable, relating to the Business or the Assets to which, on the date of this Agreement, Seller, Northern Services or TRON is a party, or which relate to or affect Seller or TRON and the Business, the Assets or the transactions contemplated hereby and all documents or agreements which may require any action or consent in connection with such transactions, as listed and described on Schedule 1.68 and Schedule 2.1.4they may have been amended to the date hereof:
(a) any written employment or consulting agreement, neither Seller nor contract or commitment with any employee, officer or director or any contract or agreement with other consultants;
(b) any agreement, contract or commitment with any party acting on behalf containing any covenant limiting the ability of Seller TRON or any employee of TRON to engage in business or to compete in any location or with any person;
(c) any partnership or joint venture agreement with any party or any arrangements with any party with respect to the sharing of or in the profits or revenues of TRON, including without limitation any licensing or royalty agreements;
(d) any agreement or instrument relating to the borrowing of money, or the direct or indirect guarantee of any obligation for, or an agreement to service the repayment of, borrowed money or any other contingent obligations in respect of indebtedness of any other party (other than an indemnification of directors and officers in accordance with the by-laws or operating agreement of Seller's Knowledge , Northern Services or TRON or applicable law);
(e) any agreement, contract or commitment relating to the future disposition or acquisition of any investment in any party or of any interest in any business enterprise involving the Business or the Assets;
(f) any contract or commitment for capital expenditures or the acquisition or construction of fixed assets;
(g) any contract or commitment for the sale or furnishing of materials, supplies, merchandise, equipment or services (including, for each such contract, a description of the percentage of completion and consent is a party expected additional hours, resources and costs necessary to complete such services, if applicable);
(h) any written agreement, instrument or oral (for which Purchaser shall be bound following other arrangement, or any unwritten agreement, contract, commitment or other arrangement, between or among Seller or TRON and any of the Closing Date):Affiliates of parties related to Seller or TRON;
(i) Contract for the future any contract which grants to any person a preferential right to purchase ofan ownership interest in Northern Services or TRON, or payment for, supplies any of the assets of Northern Services or products, or for the performance of services by another party, involving in any one case $10,000 or moreTRON;
(iij) Contract to sell any contract, agreement or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than commitment with respect to the Real Property Leaseddischarge or removal of a Contaminant (as defined in Section 2.25 below) other than in the ordinary course of business;
(vik) noteany contract, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending instrument containing obligations of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;confidentiality; and
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(xl) any other material Contract agreement or instrument not made in the ordinary course of Seller's business consistent with past practicebusiness. Each There is no course of the Contracts and other instrumentsdealing, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its termswaiver, Seller andside agreement, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance arrangement or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party understanding applicable to any such contract of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered Seller or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebyTRON.
Appears in 1 contract
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4set forth in the Disclosure Schedule, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent Concorde is not a party to any written or oral (for which Purchaser shall be bound following the Closing Date):oral:
(ia) Contract agreement, contract or commitment with any present or former employee or consultant or for the employment of any person, including any consultant, who is engaged in the conduct of the Video Lottery Business involving in any one case $10,000 or more;
(b) agreement, contract or commitment for the future purchase of, or payment for, supplies or products, or for the performance of services by another partya third party which supplies, products or services are used in the conduct of the Video Lottery Business involving in any one case $10,000 or more;
(iic) Contract agreement, contract or commitment to sell or supply products or to perform services, services in connection with the Video Lottery Business involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)more;
(iiid) Contract agreement, contract or commitment relating to the Video Lottery Business not otherwise listed on the Disclosure Schedule and continuing over a period of more than six months from the date hereof or exceeding in any one case $10,000 in value (except for any Resident/Patient's Agreement)or more;
(ive) representativedistribution, dealer, representative or sales agencyagency agreement, dealer contract or distributor Contractcommitment relating to the Video Lottery Business involving in any one case $10,000 or more;
(vf) lease under which Seller Concorde is either lessor or lessee other than with respect relating to the Real Property LeasedConcorde Assets or any property at which the Concorde Assets are located;
(vig) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract contract or commitment for the borrowing or lending of money (including without limitation loans relating to the Video Lottery Business or from Employees) agreement or arrangement for a line of credit or guarantee, pledge or undertaking of the indebtedness of any other Personperson relating to the Video Lottery Business;
(viih) Contract agreement, contract or commitment for any charitable or political contributioncontribution in excess of $10,000 relating to the Video Lottery Business;
(viiii) Contract commitment or agreement for any capital expenditure or leasehold improvement in excess of $10,000 relating to the Video Lottery Business;
(j) agreement, contract or commitment limiting or restraining Seller Concorde, the Video Lottery Business or any successor or assign thereto from engaging or competing in any likeness manner or in any business, nor, to Concorde's knowledge, is any employee of business with Concorde engaged in the conduct of the Video Lottery Business subject to any Person;
(ix) license, franchise, distributorship or other such agreement, including those that relate in whole contract or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Businesscommitment; or
(xk) any other material Contract agreement, contract or commitment relating to the Video Lottery Business not made in the ordinary course of Sellerbusiness, or any other material long term commitments or arrangements that require the commitment of a material portion of Concorde's business consistent with past practiceresources. Each of the Contracts agreements, contracts, commitments, leases, plans and other instruments, documents and undertakings listed on in the Disclosure Schedule 1.68 and Schedule 2.1.4 in response to this Section, or not required to be listed therein because of the amount thereof, under which North Star is to acquire rights or obligations hereunder is valid and enforceable in accordance with its terms; Concorde is, Seller andand all other parties thereto are, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof; Concorde is not, Seller and, to Seller's Knowledge any and no other party theretothereto is, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, ; and no event has occurred that which with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder andthereunder. Furthermore, to Seller's Knowledgeno such agreement, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contractcontract, commitment, lease lease, plan or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 contains any contractual requirement with which there is required for a reasonable likelihood Concorde or any other party thereto will be unable to comply. No material written or oral agreement, contract or commitment described therein requires the execution consent of this Agreement or the consummation of any party to its assignment in connection with the transactions contemplated hereby.
Appears in 1 contract
Contracts and Commitments. Except as listed (a) Schedule 3.11(a) attached hereto contains an accurate and described on Schedule 1.68 complete list of all Contracts related to the Subject Business and Schedule 2.1.4, neither meeting any of the descriptions set forth below to which Seller nor or any party acting on behalf of Seller with Seller's Knowledge and consent Subsidiary is a party or bound or by which any of the Purchased Assets are subject or bound, or pursuant to which Seller or any written or oral Subsidiary is a beneficiary (for which Purchaser shall be bound following the Closing Date“Purchased Contracts”):
(i) Contract for the future purchase ofContracts obligating Seller to pay, as guarantor or payment forotherwise, supplies any indebtedness or products, or for the performance of services by another party, involving in any one case $10,000 or moreway creating any Lien on any of the Purchased Assets;
(ii) Contract to sell Licenses In, Licenses Out or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)royalty Contracts;
(iii) Contract continuing over a period of more than six months from the date hereof Management, consulting or exceeding $10,000 in value (except for any Resident/Patient's Agreement)advisory Contracts;
(iv) representativeContracts for the purchase or sale of supplies or products or for the furnishing or receipt of services which has a minimum duration of one year or more or involves a sum in excess of $25,000, sales agency, dealer in each case to the extent any such Contract is not terminable by Seller without the payment of any fee or distributor Contractother amount on no more than thirty (30) days notice;
(v) lease under which Seller is either lessor Contracts limiting the freedom of Seller, or lessee other than that would limit the freedom of Buyer after the Closing Date, to freely engage in any line of business or with respect to any Person anywhere in the Real Property Leasedworld;
(vi) noteContracts relating to the distribution, debenturemarketing, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement advertising or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking sales of the indebtedness of any other PersonSoftware Products, including Contracts with sales representatives or agents;
(vii) Contract for any charitable or political contributionContracts pursuant to which Seller subcontracts work to third-parties;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness power of business with any Personattorney;
(ix) license, franchise, distributorship Contracts relating to the acquisition or other agreement, including those that relate in whole sale of any portion of the Subject Business or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; orSoftware Products;
(x) any other material employment Contract not made or severance agreement with any Hired Employee;
(xi) any Service Contract with an aggregate amount payable in the ordinary course excess of Seller's business consistent $10,000; provided, however, that only Service Contracts with past practice. Each an aggregate amount payable in excess of the Contracts and other instruments, documents and undertakings $50,000 are listed on Schedule 1.68 3.11(a).
(xii) the Real Estate Lease; or
(xiii) other Contracts material to the Subject Business.
(b) Seller has made available to Buyer complete and Schedule 2.1.4 is valid correct copies of each Purchased Contract, together with all amendments, waivers and enforceable in accordance with its termsother changes thereto, Seller andand a complete and correct description of all material terms of all oral Purchased Contracts. No Purchased Contract has been canceled or, to Seller's ’s Knowledge, breached by the other party, and Seller has no Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default planned breach by any other party thereto; (ii) to any Purchased Contract. Since December 31, 2008, to Seller’s Knowledge, except as set forth on Schedule 1.68 3.11(b), no customer, supplier or distributor of the Subject Business has indicated in writing or orally to Seller that it intends to stop or materially decrease the rate of business done with Seller or that it desires to renegotiate its Contract with Seller or that it would not do business with Buyer. Seller has performed all obligations required to be performed by it in connection with the Purchased Contracts and Schedule 2.1.4 no advance payments have been received by Seller by is not in default under or on behalf in breach of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Purchased Contract, commitmentand no event or condition has occurred or arisen which with the passage of time or the giving of notice or both would result in a default or breach thereunder. Each Purchased Contract is legal, lease valid, binding, enforceable subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general applicability relating to or other instrumentaffecting creditors’ rights and to general principles of equity and in full force and effect and, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or subject to Section 2.12, will continue as such following the consummation of the transactions contemplated hereby.
(c) All Software Products sold by the Seller have been sold pursuant to Seller’s standard End User License Agreement in the form attached to Schedule 3.11(c), with no material modification to the terms thereof, including terms relating to Seller’s right to assign such End User License Agreement.
(d) To Seller’s Knowledge, there is no reason to believe that Buyer will be unable (i) to obtain, on monetary terms consistent with those currently in effect with Seller, a written maintenance agreement with any customer of the Subject Business who is not currently a party to a written Service Contract, and (ii) to the extent necessary, to obtain, without the payment or provision by Buyer of any sums or inducements, written consents to any transfer of the customer relationship as contemplated hereby.
(e) Schedule 3.11(e) sets forth a complete and correct list of each Purchased Contract that requires a consent or other action by any Person as a result of the execution, delivery and performance of this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bio Key International Inc)
Contracts and Commitments. (a) Except as listed specifically contemplated by this Agreement and described except as set forth on Schedule 1.68 and Schedule 2.1.4the "Contracts Schedule" attached hereto, neither the Seller nor ------------------ any party acting on behalf of Seller with Seller's Knowledge and consent its Subsidiaries is a party to any or bound by, whether written or oral (for which Purchaser shall be bound following the Closing Date):oral, any:
(i) Contract for the future purchase ofcollective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, retirement or payment forany other form of deferred compensation plan or any stock purchase, supplies stock option, hospitalization insurance or productssimilar plan or practice, whether formal or for the performance of services by another party, involving in any one case $10,000 or moreinformal;
(ii) Contract to sell contract for the employment of any officer, individual employee or supply products other person on a full-time or to perform services, involving in consulting basis or any one case $10,000 or more (except for any Resident/Patient's Agreement)severance agreements not terminable by the Seller at will;
(iii) Contract agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any of its assets;
(iv) contract under which the Seller or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $25,000;
(v) agreements with respect to the lending or investing of funds of the Seller, not terminable at will;
(vi) material license or royalty agreements;
(vii) guaranty by the Seller of any obligation, other than endorsements made for collection and other than by assignment of a contract entered into in the Ordinary Course of Business;
(viii) management, consulting, advertising, marketing, promotion, technical services, advisory or other contract or other similar arrangement relating to the design, marketing, promotion, management or operation of the Business, calling for payments by the Seller in excess of $75,000 annually;
(ix) outstanding powers of attorney executed on behalf of the Seller, other than designations of agents for service of process and other such arrangements in the Ordinary Course of Business;
(x) lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $75,000 annually;
(xi) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it, calling for payments to the Seller in excess of $75,000 annually;
(xii) contract or group of related contracts with the same party continuing over a period of more than six months (6) from the date hereof or exceeding dates thereof, not terminable by it on 60 days or less notice without penalties or involving more than $10,000 in value (except for any Resident/Patient's Agreement)75,000;
(ivxiii) representative, sales agency, dealer any confidentiality agreement or distributor Contractsimilar arrangement which is material to the Business or which is to be assumed by the Purchaser;
(vxiv) lease under contract which Seller is either lessor or lessee other than with respect to prohibits it from freely engaging in business anywhere in the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Businessworld; or
(xxv) any other unrecorded agreement material Contract to it whether or not made entered into in the ordinary course Ordinary Course of Seller's business consistent with past practice. Each of Business.
(b) Except as disclosed on the Contracts Schedule, (i) no contract or ------------------ commitment required to be disclosed on the Contracts Schedule has been breached ------------------ or canceled by the other party and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, the Seller and, to Seller's Knowledge has no knowledge of any anticipated breach by any other party theretoto any contract set forth on the Contracts --------- Schedule, are (ii) since August 31, 1997, no supplier or material customer has -------- indicated in compliance writing or orally to the Seller, any of its Subsidiaries or any Stockholder that it shall stop or materially decrease the rate of business done with the provisions thereofSeller or any of its Subsidiaries or that it desires to renegotiate, in any material respect, any contract or current arrangement with the Seller andor any of its Subsidiaries, (iii) the Seller and each of its Subsidiaries have performed all the obligations required to Seller's Knowledge any other party thereto, be performed by them in connection with the contracts or commitments required to be disclosed on the Contracts --------- Schedule and are not in default under or in the performance, observance or fulfillment breach of any material obligation, covenant contract or condition contained thereincommitment -------- required to be disclosed on the Contracts Schedule, and no event has occurred that ------------------ which with the passage of time or without the giving of notice or lapse of time, or both, both would constitute result in a default by or breach thereunder, (iv) neither the Seller thereunder and, nor any of its Subsidiaries has any present expectation or intention of not fully performing any obligation pursuant to Seller's Knowledge, a default by any other party thereto; (ii) except as contract set forth on Schedule 1.68 the Contracts Schedule, and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.------------------
Appears in 1 contract
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4, neither (a) The Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is not a party to any written of the following Contracts other than those terminable at the Seller's will without penalty, payment or oral (for which Purchaser shall be bound following the Closing Date):impairment:
(i) Contract Any contract with any present or former employee or consultant or for the employment of any person, including any consultant, who is engaged in the conduct of the Business;
(ii) Any contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another partya third party which supplies, products or services are used in the conduct of the Business involving in any one case $10,000 25,000 or more;
(iiiii) Contract Any contract to sell or supply products ("Goods Contracts") or to perform servicesservices other than customer transportation agreements ("Services Contract") in connection with the Business involving, involving in any one case case, $10,000 100,000.00 or more (except for any Resident/Patient's Agreement)more;
(iiiiv) Any distribution, dealer, representative or sales agency Contract, relating to the Business;
(v) Any lease under which the Seller is either lessor or lessee relating to the Assets or any property at which the Assets are located;
(vi) Any Contract for any charitable or political contribution relating to the Business;
(vii) Any Contract for any capital expenditure or leasehold improvement in excess of $25,000;
(viii) Any Contract limiting or restraining the Seller, the Business or any successor thereto from engaging or competing in any manner or in any business, nor, to the Seller's knowledge, is any employee of the Seller engaged in the conduct of the Business subject to any such agreement, contract or commitment;
(ix) Any franchise or distributorship agreement; or
(x) Any Contract relating to the Business not otherwise listed on the Disclosure Schedule and continuing over a period of more than six months from the date hereof hereof, or exceeding $10,000 100,000.00 in value (except for any Resident/Patient's Agreement);value.
(ivxi) representativeAny Service Contract other than in the form attached to the Disclosure Schedule with only such changes as are necessary to reflect applicable fees, sales agencytime periods, dealer and other changes therein as do not naturally affect the rights or distributor Contract;obligations of the Seller thereunder.
(vb) lease under which The Seller is either lessor or lessee other than with respect has made available to the Real Property Leased;Purchaser complete and correct copies of all written contracts listed on Schedule 5.19, and a complete and correct description in all material respects of all of the material terms of all oral contracts listed on Schedule 5.19, in each case together with a complete and correct copy or description in all material respects, as the case may be, of all amendments thereto.
(vic) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts listed in the Disclosure Schedule in response to this Section, or not required to be listed therein because of the amount thereof, and other instrumentsto which the Purchaser is to acquire rights or obligations hereunder, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is is, to the Seller's knowledge, valid and enforceable in accordance with its terms. The Seller is, Seller and, and to the Seller's Knowledge any knowledge all other party theretoparties thereto are, are in compliance with the provisions thereof; the Seller is not, Seller and, and to the Seller's Knowledge any knowledge, no other party theretothereto is, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein; and, and to the Seller's knowledge no event has occurred that which with or without the giving of notice or lapse of time, or both, would constitute a default thereunder. This Section 5.19 does not relate to agreements with respect to Intellectual Property, which are instead covered by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebySection 5.13.
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Contracts and Commitments. Except as listed Schedule 4.11 sets forth a correct and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor any party acting on behalf complete list of Seller with Seller's Knowledge and consent all the Contracts of the following types to which the Company is a party or by which it is bound, or to which any written of its assets or oral (for which Purchaser shall be bound following the Closing Date):properties is subject:
(i) collective bargaining agreement or other Contract for the future purchase ofwith any labor union or any bonus, pension, profit sharing, retirement or payment for, supplies or products, or for the performance other form of services by another party, involving in any one case $10,000 or moredeferred compensation plan;
(ii) Contract for the employment or retention of any officer, independent contractor, individual employee or other person on a full-time or consulting basis, including any Contract with any officer, employee or independent contractor with respect to sell change of control, retention bonus, severance or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement)similar benefits;
(iii) Contract continuing over a period any bonus, pension, profit sharing, retirement or other form of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement)deferred compensation plan;
(iv) representativeagreement or indenture or similar Contract relating to the borrowing of money or to mortgaging, sales agency, dealer pledging or distributor Contractother Indebtedness or otherwise placing a Lien on any material portion of the Company’s assets;
(v) lease or agreement or similar Contract under which Seller it is either lessor or lessee other than with respect to of any personal property for which the Real Property Leasedannual rental exceeds $50,000;
(vi) noteContract or group of related Contracts with the same party (or Affiliates thereof that are known to be Affiliates of such party by the Company) for the purchase or sale of products or services, debentureunder which the undelivered balance of such products or services has a selling price in excess of $50,000;
(vii) any Contract relating to sales agency, bondsales representative, conditional distribution arrangements, buying group or similar contracts;
(viii) any commodities future, derivative or similar Contract;
(ix) any covenant not to compete or similar Contract limiting the ability of the Company or any of its employees, officers or managers to engage in any line of business or to compete with any Person in any respect, including with respect to any Contract purporting to limit in any way the geographic scope of the conduct of the business of the Company, or any of its employees, officers or managers;
(x) Contracts providing “most favored” pricing or any exclusive rights with respect to the manufacturing, sale, sales representative or distribution of the products of the Company or the purchase of raw materials or products from third parties;
(xi) any contract for the purchase of any fixed asset for a price in excess of $25,000;
(xii) any Contract for the sale agreementor transfer of any of the assets or properties of the Company other than sales of finished goods inventory in the ordinary course of business;
(xiii) Contracts involving any joint venture, equipment trust agreementpartnership, letter strategic alliance, co-marketing, sharing of credit agreement, loan agreement profits or losses or similar arrangement;
(xiv) Contracts relating to any acquisition by the Company of any operating business or material portion of the assets or properties of any Person or any capital stock or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness equity interest of any other Person;
(viixv) Contract for Contracts containing licenses granted by the Company to any charitable or political contributionIntellectual Property and licenses granted to the Company to the intellectual property of any other Person (excluding readily available, off-the-shelf software requiring aggregate payments of less than $50,000);
(viiixvi) Contract limiting any power of attorney or restraining Seller agency agreement or arrangement with any successor Person pursuant to which such Person is granted the authority to act for or assign from engaging on behalf of the Company or competing in any likeness the Company is granted the authority to act for or on behalf of business with any Person;
(ixxvii) licenseany Contract that requires the payment of royalties, franchisecommissions, distributorship finders’ fees or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; orsimilar payments;
(xxviii) any Contract with any Governmental Body;
(xix) any contract for the disposition of any portion of the assets or business of the Company (other material Contract not made than sales of inventory in the ordinary course of Seller's business consistent with past practice. Each ) or any contract for the acquisition of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge assets or business of any other party thereto, are business (other than purchases of inventory or components in compliance with the provisions thereof, Seller and, to Seller's Knowledge ordinary course of business) or any capital stock or other equity interest of any other party theretoPerson or any contract relating to any merger, are consolidation or reorganization of the Company with any other Person;
(xx) any Contract with any Major Customer or Major Supplier; and
(xxi) any other Contract that (A) provides for future payments by the Company in excess of $50,000 per annum, (B) is not terminable by the Company upon notice of thirty (30) calendar days or less without penalty or (C) is otherwise material to the Company. The Company is not in breach or default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that (nor would be with or without the giving of notice or lapse of time, or both) under any Contract listed or summarized on the Schedule 4.11 or required to be listed or summarized on such schedule (each, would constitute a default by Seller thereunder “Material Contract” and, collectively, the “Material Contracts”) and, to Seller's Knowledgethe Knowledge of the Company and Members, a default by any the other party thereto; to each of the Material Contracts is not in breach or default (iinor would be with or without notice or lapse of time, or both) except as set forth on Schedule 1.68 thereunder. Each of the Material Contracts is in full force and Schedule 2.1.4 effect and constitutes the valid and binding obligation of the Company and, to the Knowledge of the Company and Members, the other party(ies) thereto in accordance with its terms. The Company has not repudiated any Material Contract or given or received any written or, to the Knowledge of the Company and Members, oral notice that any party intends to terminate any Material Contract, and to the Knowledge of the Company and Members, no advance payments have been received by Seller by or on behalf of any party to any Material Contract intends to terminate or not renew any such Material Contract. The Company has previously delivered to Buyer correct and complete copies of the all Material Contracts, commitmentstogether with all material amendments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease waivers or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated herebychanges thereto.
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Sources: Asset Purchase Agreement (Atkore International Holdings Inc.)
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):'s
(i) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark ▇▇ copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party thereto; (ii) except as set forth on Schedule 1.68 and Schedule 2.1.4 no advance payments have been received by Seller by or on behalf of any party to any of the Contracts, commitments, leases and other instruments listed on Schedule 1.68 and Schedule 2.1.4 for services to be rendered or products to be delivered to such party after the Closing Date; and (iii) no consent or approval of any party to any Contract, commitment, lease or other instrument, document or undertaking listed on Schedule 1.68 and Schedule 2.1.4 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby.party
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