Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ---- (a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings; (b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate; (c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement; (d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity; (e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest; (f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits; (g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and (h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunder.
Appears in 1 contract
Sources: Stock and Limited Partnership Interest Purchase Agreement (Charys Holding Co Inc)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as specifically contemplated by this Agreement and except as set forth and fully described on SCHEDULES 4.10(DSCHEDULE 5.13(A) (Leases)attached hereto, 4.11 ----------------- ---- (Indebtedness)the Target is not a party to or bound by, 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal;
(ii) any contract for the employment of any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, individual employee or broker that is not cancelable by the Cotton Group Companies other person on notice of not longer than thirty (30) days and without liability, penalty a full-time or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, consulting basis or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earningsseverance agreements;
(biii) The Cotton Group Companies are not under any liability agreement or obligation under any agreement pursuant to which third parties have been provided with products that can be returned indenture relating to the Cotton Group Companies in the event they are not sold and which could involve borrowing of money or to mortgaging, pledging or otherwise placing a liability Lien on any of the Cotton Group Companies of $25,000 or more in the aggregateits assets;
(civ) The Cotton Group Companies do not have contract under which the Target has advanced or loaned any other Person amounts in the aggregate exceeding $5,000;
(iv) agreement under which the Target has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(vi) agreements with respect to the lending or investing of funds;
(vii) any outstanding loan license or loan commitment royalty agreements;
(excluding credit extended viii) guaranty of any obligation, other than endorsements made for collection;
(ix) lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $5,000 annually;
(x) 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;
(xi) contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 days or less notice without penalties or involving more than $10,000;
(xii) contract which prohibits it from freely engaging in business anywhere in the world;
(xiii) other agreement material to it whether or not entered into in the Ordinary Course of Business to purchasers Business; or
(xiv) any oral agreements and/or contracts.
(b) Except as disclosed on SCHEDULE 5.13(B):
(i) no contract or commitment has been breached or canceled by the other party and neither the Target nor any Shareholder has Knowledge of job materials) any anticipated breach by any other party to any person, or contract other than as set forth on the SCHEDULE 5.13(B);
(ii) other than as set forth on SCHEDULE 5.13(B), no customer or supplier has indicated in writing or orally to the Target or any factoring, credit line Shareholder that it shall stop or subordination agreementdecrease the rate of business done with the Target or that it desires to renegotiate its contract or current arrangement with the Target;
(diii) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments the Target has performed all the obligations required to be performed by it in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect connection with all of the contracts or commitments that the Target has entered into is not in default under or in breach of any contract or commitment commitment, and no event has occurred which with the passage of any other person, corporation, partnership, joint venture, association, organization time or other entitythe giving of notice or both would result in a default or breach thereunder;
(eiv) There are the Target has no contracts present expectation or agreements with intention of not fully performing any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject obligation pursuant to any contract or agreement containing covenants limiting that the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flowsTarget entered into; and
(hv) To other than as set forth on SCHEDULE 5.13(B), each agreement is legal, valid, binding, enforceable and in full force and effect and will continue as such following the Knowledge consummation of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereundertransactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Miracom Corp)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have Neither the Company nor any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as its Subsidiaries are a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant party to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have any: (i) any outstanding loan Contract containing non-competition or loan commitment non-solicitation (excluding credit extended such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding Company’s or any contract, commitment of its Subsidiaries’ business activity or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting limit the freedom of the Company or any Cotton Group Company of its Subsidiaries to compete engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any geographic area employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) 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 one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any Cotton Group capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to share a third party, or a third party grants to the Company or any profits;of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(gb) There Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no contractparty thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, agreement and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Companyforce majeure events. The Cotton Group Companies have Company has made available to the Purchaser true, true and correct and complete copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all contractsamendments, agreements, plans, leases, policies and licenses referred to, modifications or required to be referred to or listed on, any Schedule delivered hereundersupplements thereto.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 (a) Section 2.19(a) of the Disclosure Schedule sets forth a complete and accurate list of all
(i) credit agreements, notes, indentures, security agreements, pledges, guarantees of or agreements to assume any such debt obligation of others or similar documents relating to indebtedness for borrowed money (including interest rate or currency swaps, ▇▇▇▇▇▇ or straddles or similar transactions) to which the ------------------------- ------------- Cotton Group Companies are a party or by which any of its assets are bound, restricted or encumbered;
(ii) employment, consulting, severance or termination agreements which require or may require the Companies to pay (A) more than $100,000 in any twelve-month period, or (B) any severance or termination pay liability or obligation;
(iii) agreements by or among the shareholders of the Companies relating to or affecting the acquisition, disposition or voting of the capital stock of the Companies' contracts with customers with an estimated value of $50,000.00 or more. ;
(b) Except as set forth on SCHEDULES 4.10(Din Section 2.19(b) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----of the Disclosure Schedule,
(ai) The Cotton Group the Companies do not have any contract which is material to its business, operations or prospects;
(ii) no purchase contract of either of the Companies continue for a period of more than twelve months or requires payment of more than $10,000 in any twelve-month period;
(iii) no Employee Benefit Plan contains any severance or termination pay liability or obligation;
(iv) the Companies have no employee to whom it is paying base salary at the annual rate of more than $100,000 for services rendered;
(v) the Companies are not restricted by any agreement from carrying on its business in any respect anywhere in the world;
(vi) the Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;other than advances to employees for travel and entertainment expenses in the ordinary course of business; and
(dvii) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment obligation or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the contract or commitment obligation of any other person, corporation, partnership, joint venture, limited liability company, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Berliner Communications Inc)
Contracts and Commitments. SCHEDULE 4.23 sets forth (i) The Disclosure Schedule lists the following agreements, whether oral or written, to which ▇▇▇▇▇▇▇ is a list party or by which ▇▇▇▇▇▇▇ or its assets are bound: (A) collective bargaining agreement or contract with any labor union; (B) bonus, pension, profit sharing, retirement or other form of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 deferred compensation plan; (C) hospitalization insurance or more. Except as set forth on SCHEDULES 4.10(D) (Leases)other welfare benefit plan or practice, 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND whether formal or informal; (D) stock purchase or stock option plan; (Intellectual Property), 4.15(A)(IE) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with contract for the employment of any officer, employeeindividual employee or other person on a full-time or consulting basis or relating to severance pay for any such person; (F) confidentiality agreement with employees and with consultants, agentvendors, consultantcustomers or other third parties; (G) contract, advisoragreement or understanding relating to the voting of ▇▇▇▇▇▇▇'▇ capital stock or the election of directors of ▇▇▇▇▇▇▇; (H) agreement or indenture relating to the borrowing of money or to mortgaging, salesmanpledging or otherwise placing a lien on any of the assets of ▇▇▇▇▇▇▇; (I) guaranty of any obligation for borrowed money or otherwise; (J) lease or agreement under which it is lessee of, manufacturer's representativeor holds or operates any property, real or personal, owned by any other party; (K) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $10,000 (L) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 days' or less notice without penalty and involving more than $10,000; (M) contract which prohibits ▇▇▇▇▇▇▇ from freely engaging in business anywhere in the world; (N) contract for the distribution of products through or in conjunction with ▇▇▇▇▇▇▇ (including any distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty sales and original equipment manufacturer contract); (30O) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any franchise agreement; (P) license agreement or arrangement agreement providing for the payment or receipt of royalties or other compensation by ▇▇▇▇▇▇▇ in connection with the intellectual property rights set forth in the Disclosure Schedule; (Q) contract or commitment for capital expenditures in excess of $10,000, (R) agreement for the sale of any bonus capital asset; (S) contract with any affiliate which in any way relates to ▇▇▇▇▇▇▇ (other than for employment on customary terms); or commission based on sales or earnings;
(bT) The Cotton Group Companies are not under any liability or obligation under any other agreement pursuant to which third parties have been provided with products that can be returned is either material to the Cotton Group Companies business of ▇▇▇▇▇▇▇ or was not entered into in the event they are not sold and which could involve a liability ordinary course of the Cotton Group Companies of $25,000 or more business (other than agreements required to be listed in the aggregate;Disclosure Schedule).
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) The Disclosure Schedule lists the following agreements, whether oral or written, to which ▇▇▇▇▇▇▇ is a party or by which ▇▇▇▇▇▇▇ or its assets are bound: (A) contract or group of related contracts with the same party for the purchase of products or services by ▇▇▇▇▇▇▇ under which the undelivered balance of such products or services is in excess of $10,000; (B) contract or group of related contracts with the same party for the sale of products or services by ▇▇▇▇▇▇▇ under which the undelivered balance of such products or services (including, without limitation, any factoringfree upgrades or ongoing services) has a sales price in excess of $10,000; and (C) sales agreement or other customer commitment (other than the standard form of purchase order) which entitles any purchaser to a rebate from or right of set-off against ▇▇▇▇▇▇▇, credit line to return any product to ▇▇▇▇▇▇▇ after acceptance thereof or subordination agreement;to delay the acceptance thereof, to receive future services, upgrades or enhancements, or which varies in any material respect from ▇▇▇▇▇▇▇'▇ standard form agreements for sales.
(diii) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments ▇▇▇▇▇▇▇ has performed all material obligations required to be performed through the date hereof by it in connection with the contracts or commitments required to be disclosed in the process Disclosure Schedule and has not been notified of collection, the Cotton Group Companies do not have any power claim of attorney outstanding or default under any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment required to be disclosed in the Disclosure Schedule; ▇▇▇▇▇▇▇ has no present expectation or intention of not fully performing any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject material obligation pursuant to any contract or agreement containing covenants limiting the freedom commitment required to be disclosed thereunder; and ▇▇▇▇▇▇▇ has no knowledge of any Cotton Group Company breach or anticipated breach by any other party to compete any contract or commitment required to be disclosed in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;the Disclosure Schedule.
(giv) There is no contractPrior to the date of this Agreement, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is Exmark has been provided with a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies copy of all contracts, agreements, plans, leases, policies and licenses referred to, each written contract or required to be commitment referred to in the Disclosure Schedule, together with all known amendments, waivers or listed on, any Schedule delivered hereunderother changes thereto.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list Section 5.14 of the Disclosure ------------------------- ------------- Cotton Group Companies' contracts ------------ Schedule lists all of the following which relate to the Assets, the Business and/or the employees of each Seller, Holdings and Alltrista employed in connection with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) the Business (Leases)collectively, 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitmentsthe "Contracts"): -------------
(a) The Cotton Group Companies do not have any outstanding contractemployment, written consulting, bonus, profit-sharing, percentage compensation, deferred compensation, pension, welfare, retirement, stock purchase or oral, stock option plans or agreements with any officeremployees, employeeagents, agentaffiliates or labor unions, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, excluding agreements terminable by Sellers on not more than 30 days' notice without liability or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earningspenalty;
(b) The Cotton Group Companies are not under contracts, agreements, or commitments relating to any liability joint venture, partnership, strategic alliance, or obligation under sharing of profits or losses with any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregateperson;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreementleases for all Real Property;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in contracts, agreements, or commitments containing covenants purporting to limit the process freedom of collection, the Cotton Group Companies do not have any power of attorney outstanding either Seller or any contract, commitment of their employees to compete in any business or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entitygeographic area;
(e) There are no contracts or agreements with any directorcontracts, officer, partner or shareholder of any Cotton Group Companyagreements, or with any person related commitments requiring payments or distributions to any such person employee of Sellers, Holdings or with Alltrista or any company relative or other organization in which any director, officer, partner or shareholder affiliate of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies contracts, agreements, or commitments not disclosed on any other Schedule to this Agreement that involve the payment or receipt by either Seller, Holdings or Alltrista (whether in payment of a debt, as a result of a guarantee or indemnification, for goods or services, or otherwise) of more than Fifty Thousand Dollars ($50,000) per year or One Hundred Thousand Dollars ($100,000) over the initial term thereof, or are not subject otherwise material to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;Business; and
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows material contracts not made in the ordinary course of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any business. Each Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies Holdings and Alltrista have made available to Purchaser true, true and correct and complete copies of all contractsof the Contracts available to Buyer, agreementsexcept for Contracts with Customers, planswhich shall be provided to Buyer within five (5) days of the execution of this Agreement. Furthermore, leasessuch Customer Contracts shall not be included in Section ------- 5.14 of the Disclosure Schedule until five (5) days following the ---- execution of this Agreement, policies and licenses referred to, or required at which time an update with all such information shall be provided to be referred to or listed on, any Schedule delivered hereunderBuyer.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not Schedule 7.19 hereto (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following contracts (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto, have been delivered or made available to STH), to which HHTI or any outstanding of the HHTI Subsidiaries is a party or by which any HHTI Hotel is bound:
(i) all contracts providing for the leasing or management of one or more of the HHTI Hotels or any portion of one or more of the HHTI Hotels;
(ii) all HHTI Franchise Agreements;
(iii) all material contracts providing for a commitment of employment or consultation services for a specified or unspecified term;
(iv) all contracts with any person containing any provision or covenant prohibiting or materially limiting the ability of HHTI or any of the HHTI Subsidiaries to engage in any business activity, hire employees, solicit customers or otherwise compete with any person;
(v) all partnership, joint venture, stockholders' or other similar contracts with any person;
(vi) all notes, debentures, bonds and other evidence of HHTI Indebtedness;
(vii) all contracts relating to any business combination;
(viii) all contracts between or among HHTI or any of the HHTI Subsidiaries, on the one hand, and any of their stockholders or affiliates, on the other hand;
(ix) all collective bargaining or similar labor contracts; and
(x) all other contracts that involve the annual payment or potential annual payment pursuant to the terms of such contract, written by or oralto HHTI or any of the HHTI Subsidiaries of more than $25,000 or aggregate payments in excess of $100,000 that will not (A) be fully performed on or prior to the Effective Time, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor(B) expire by their terms prior to the Effective Time, or broker that is not (C) be cancelable by the Cotton Group Companies on notice Surviving Entity, without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and sale of not longer than thirty (30) days assets, advance booking contracts and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;banquet contracts.
(b) The Cotton Group Companies are not Each contract required to be disclosed on Schedule 7.19 is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms and, except as disclosed on Schedule 7.19 , neither HHTI, any of the HHTI Subsidiaries nor, to the knowledge of HHTI, any other party to such contract is in violation, breach or default under any liability such contract (or obligation with notice or lapse of time or both would be in violation, breach or default under any agreement pursuant to which third parties have been provided with products that can be returned to such contract), the Cotton Group Companies in the event they are not sold and which could involve a liability effect of the Cotton Group Companies of $25,000 which, individually or more in the aggregate;, could reasonably be expected to result in a Material Adverse Effect.
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted HHTI Franchise Agreements disclosed on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect Schedule 7.19 constitute all of the contract franchise or commitment similar agreements necessary to operate and manage the HHTI Hotels and neither HHTI nor any HHTI Subsidiary has received any notice or has any knowledge of any other person, corporation, partnership, joint venture, association, organization an event of default or other entity;
(e) There are no contracts termination or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to proposed termination under any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderHHTI Franchise Agreement.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 (a) Section 4.16(a) of the Seller Disclosure Schedule sets forth a correct and complete list of each of the ------------------------- ------------- Cotton Group Companies' following to which any Acquired Company is a party or by which it or its assets or the Business is bound or affected, whether written or oral (collectively, the "Contracts"): (i) collective bargaining agreements or contracts with customers any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan; (ii) contracts relating to employment, confidentiality, non-competition and/or Proprietary Rights, and any agreement providing for severance or change of control benefits; (iii) agreements, indentures or other arrangements relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any of its assets; (iv) contracts under which such entity has advanced or loaned any other Person amounts in the aggregate exceeding $20,000; (v) contract relating to lending or investing of funds; (vi) licenses or royalty agreements; (vii) guarantees of any obligation, other than endorsements made for collection; (viii) management, consulting, advertising, marketing, promotion, technical services, advisory or other similar contracts or arrangements relating to the Business; (ix) agreements with an estimated value any customer or material supplier; (x) leases or agreements under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $50,000.00 20,000 annually; (xi) leases or moreagreements under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it; (xii) contracts or group of related contracts with the same party continuing over a period of more than six (6) months from the date or dates thereof, not terminable by it on thirty (30) days or less notice without penalties, or involving more than $20,000; (xiii) contracts which prohibit any Acquired Company or any of its officers or employees from freely engaging in business anywhere in the world; (xiv) agreements under which the consent of any Person or Governmental Authority is required as a result of the transactions contemplated by any of the Transaction Documents; (xv) joint venture agreements or agreements relating to the acquisition or sale of any company, business, division or other enterprise, whether in the form of stock purchase, asset acquisition or otherwise; (xvi) agreements, contracts or commitments for the purchase or sale of any goods or services at rates or terms which are materially different from generally available rates or terms, including purchase or sale commitments entered into in settlement of claims or prior obligations; or (xvii) agreements material to any Acquired Company whether or not entered into in the ordinary course.
(b) Each contract, agreement or commitment required to be disclosed in Section 4.16(a) of the Seller Disclosure Schedule was entered into in the ordinary course of business consistent with past practices, is in full force and effect, is valid and enforceable in accordance with its terms, and constitutes a legal and binding obligation of the Acquired Companies, and to the knowledge of Seller or AFT, each other party thereto. The Acquired Companies have neither given nor received, and, to the knowledge of Seller or AFT, no fact or circumstance exists which could reasonably be expected to give rise to, with the passage of time or the giving of notice or both, any material breach, notice of material default, termination or partial termination under any contract, agreement or commitment required to be disclosed in Section 4.16(a) of the Seller Disclosure Schedule, and there is no existing or continuing default by any Acquired Company or, to the knowledge of Seller or AFT, any other party in the performance or payment of any obligation under any such contract, agreement or commitment which could reasonably be expected to cause a Material Adverse Effect, and each Acquired Company is in compliance in all material respects with the provisions of each such contract, agreement or commitment. Seller and AFT have no knowledge of any anticipated breach or expectation or intention on the part of any party to not fully perform any obligation under any such contract, agreement or commitment.
(c) Except as set forth on SCHEDULES 4.10(DSection 4.16(c) of the Seller Disclosure Schedule, Seller and AFT have provided Purchaser with true and correct copies of all written contracts which are required to be disclosed in Section 4.16(a) of the Seller Disclosure Schedule, in each case together with all amendments, waivers or other changes thereto (Leasesall of which are disclosed in Section 4.16(a) of the Seller Disclosure Schedule), 4.11 ----------------- ---- (Indebtedness), 4.12(B. Section 4.16(c) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), of the Seller Disclosure Schedule also contains an accurate and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice complete description of not longer than thirty (30) days and without liability, penalty or premium all material terms of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant oral contracts referred to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;therein.
(d) Except as noted on SCHEDULE 4.11 (Indebtednessset forth in Section 4.16(d) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract Seller Disclosure Schedule, Seller or commitment AFT have no knowledge of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related circumstances that may reasonably be expected to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred give rise to, or any material contract otherwise required to be referred disclosed in Section 4.16(a) that relates to the Business of, or listed onany of the assets owed or used by, any Schedule delivered hereunderAcquired Company.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Us 1 Industries Inc)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as set forth on SCHEDULES 4.10(Din Section 3.18(a) of the Beeville Disclosure Schedules (Leasesthe “Beeville Contracts”), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have neither Beeville nor any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company its Subsidiaries is a party to or bound by any presently of the following (whether written or previously existing oral, express or implied):
(i) employment, services, independent contractor, consulting, change-in-control, retention, or severance contracts or similar arrangements;
(ii) collective bargaining agreements, memorandums of understanding, or other contracts with any Union (as defined herein);
(iii) bonus, stock option, restricted stock, stock appreciation, deferred compensation arrangement, profit-sharing plan, pension plan, retirement plan, welfare plan or other employee benefit agreement or arrangement;
(iv) any material lease or license with respect to any property, real or personal, whether as landlord, tenant, licensor or licensee;
(v) contract or commitment for capital expenditures in excess of $50,000 in the aggregate;
(vi) material contract or commitment for the purchase of materials or supplies or for the performance of services over a period of more than sixty (60) days after the date of this Agreement and not terminable upon notice of sixty (60) days or less;
(vii) contract or option to purchase or sell any real or personal property other than any contract for the purchase of personal property in the ordinary course of business;
(viii) contract, agreement or letter with respect to the management or operations of Beeville or Beeville Bank imposed by any Governmental Body having supervisory jurisdiction over Beeville or Beeville Bank;
(ix) note, debenture, agreement, contract or indenture related to the borrowing by Beeville or any of its Subsidiaries of money other arrangement that has had or may than those entered into in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition ordinary course of business;
(x) guaranty of any Cotton Group Companyobligation for the borrowing of money, excluding endorsements made for collection, repurchase or resell agreements, letters of credit and guaranties made in the ordinary course of business;
(xi) agreement with or extension of credit to any executive officer or director of Beeville or any of its Subsidiaries or holder of ten percent (10%) or more of the issued and outstanding Beeville Stock, or any affiliate of such person;
(xii) agreement with any executive officer or director of Beeville or any of its Subsidiaries or holder of ten percent (10%) or more of the issued and outstanding Beeville Stock or any affiliate of such person, relating to bank owned life insurance (“BOLI”);
(xiii) lease of real property;
(xiv) any agreement containing covenants that limit the ability of Beeville or any of its Subsidiaries to compete in any line of business or with any Person, or that involve any restriction on the geographic area in which, or method by which, Beeville (including any successor thereof) or any of its Subsidiaries (including any successor thereof) may carry on its business (other than as may be required by law or any Governmental Body);
(xv) any data processing or other electronic banking services agreement or contract which may not be terminated without payment or penalty upon notice of thirty (30) days or less;
(xvi) any agreement pursuant to which Beeville or any of its Subsidiaries may become obligated to invest in or contribute capital to any Person;
(xvii) any agreement between Beeville Bank, on the one hand, and a Person listed on Section 3.1(e) of the Beeville Disclosure Schedules, on the other hand (the “Affiliate Agreements”); or
(xviii) contracts, other than the foregoing, with payments aggregating $50,000 or more not made in the ordinary course of business.
(b) Each Beeville Contract is legal, valid and binding on Beeville or its Subsidiaries, as the case may be, and to the knowledge of Beeville, the other parties thereto, enforceable by Beeville or its Subsidiaries, as the case may be, in accordance with its terms (subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally and general equitable principles). The Cotton Group Companies have Each of Beeville and its Subsidiaries has performed in all material respects all obligations required to be performed by it to date under each Beeville Contract and there are no existing material defaults by Beeville or its Subsidiary, as the case may be, or, to the knowledge of Beeville, the other party thereunder and, to the knowledge of Beeville, there are no allegations or assertions of such by any party under such Beeville Contract or any events that with notice, lapse of time or the happening or occurrence of any other event would be reasonably likely to constitute a default thereunder. A true and complete copy of each Beeville Contract has been delivered or made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderSpirit.
Appears in 1 contract
Sources: Merger Agreement (Spirit of Texas Bancshares, Inc.)
Contracts and Commitments. SCHEDULE 4.23 sets (a) Except as set forth in Schedule 3.17(a) hereto, Shaba does not have, nor is Shaba party to or bound by:
(i) any consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Shaba;
(ii) any fidelity or surety bond or completion bond;
(iii) any agreement of indemnification or guaranty (other than nondisclosure agreements);
(iv) any agreement, contract, commitment, transaction or series of transactions for any purpose other than in the ordinary course of Shaba's business relating to capital expenditures or commitments or long term obligations in excess of $10,000;
(v) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of Shaba's business (other than the transactions contemplated by this Agreement);
(vi) any mortgages, indentures, loans or credit agreements, security agreements or other arrangements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (iii) hereof;
(vii) any purchase order or contract for the purchase of inventory or other materials involving $10,000 or more;
(viii) any distribution, joint marketing or development agreement;
(ix) any assignment, license or other agreement with respect to any form of intangible property; or
(x) any other agreement, contract or commitment that involves $10,000 or more (excluding any agreement for professional services entered into in connection with the transactions contemplated by this Agreement) or is not cancelable without penalty in excess of $10,000 within thirty (30) days (collectively, any of (i) through (x) above shall be known as "Contracts").
(b) Except as would not individually or in the aggregate have a list Material Adverse Effect on Shaba, all such Contracts are valid and binding on Shaba and are in full force and effect and enforceable against Shaba in accordance with their respective terms. Except as disclosed in Schedule 3.17(b) hereto, no approval or consent of, or notice to any Person the failure of which to obtain would have individually or in the aggregate a Material Adverse Effect is needed in order that such Contracts shall continue in full force and effect in accordance with its terms without penalty, acceleration or rights of early termination following the consummation of the ------------------------- ------------- Cotton Group CompaniesMerger. Except to the extent any of the following would not individually or in the aggregate have a Material Adverse Effect, Shaba is not in violation of, breach of or default under any such Contract nor, to the Members' contracts with customers with an estimated value of $50,000.00 or moreknowledge, is any other party to any such Contract. Except as set forth on SCHEDULES 4.10(Din Schedule 3.17(b) (Leases)hereto, 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that Shaba is not cancelable by the Cotton Group Companies on notice in violation or breach of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not default under any liability or obligation under any agreement pursuant such Contract (including leases of real property) relating to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability non-competition, indebtedness, guarantees of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment indebtedness of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Companyemployment, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereundercollective bargaining.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth disclosed on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----Schedule 2.25 to the Disclosure Schedule:
(a) The Cotton Group Companies do Parent is not have nor is any outstanding contract, written or oralSubsidiary, with respect to its business, a party to any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, oral or broker written contract:
(i) that prohibits Parent or any of its Subsidiaries from freely engaging or competing in its line of business anywhere in the world;
(ii) that is not cancelable on arms-length terms;
(iii) pursuant to which Parent or any of its Subsidiaries has incurred or accrued losses;
(Iv) that commits Parent or any of its Subsidiaries to purchase or sell any properties or assets outside of the ordinary course of business for consideration in excess of $100,000;
(v) that involves an unfulfilled obligation, individually or in the aggregate, in excess of $100,000 and is not terminable by the Cotton Group Companies on Parent or any of its Subsidiaries upon less than 60 calendar days' notice for a cost of not longer less than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings$100,000;
(b) The Cotton Group Companies are not under Since December 31, 1997, none of Parent's or any liability of its Subsidiaries' significant customers, suppliers, outside service providers or obligation under sources of referral has indicated that it will stop or materially decrease the rate of business done with or referred to either Parent or any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;such Subsidiary.
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of Parent, neither Parent nor any of its Subsidiaries is obligated to (i) purchase any property or services at a price greater than the Cotton Group Companies prevailing market price, (ii) sell any property or any Sellerservices at a price less than the prevailing market price, no Cotton Group (iii) pay rentals or royalties at a rate greater than the prevailing market price or (iv) act as lessor or licensor at a rate less than the prevailing market price.
(d) The Company is has been supplied with a party true and correct copy of all written contracts which are referred to or bound by any presently or previously existing contracton Schedule 2.25, agreement together with all amendments, exhibits, attachments, waivers or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderchanges thereto.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list (i) Part 3.1(L)(i) of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 AZNA Disclosure Letter lists the following Contracts, whether oral or more. Except as set forth on SCHEDULES 4.10(D) (Leases)written, 4.11 ----------------- ---- (Indebtedness)to which AZNA is a party, 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----which are currently in effect:
(a) The Cotton Group Companies do not have any outstanding contract, written joint venture or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earningspartnership agreement;
(b) The Cotton Group Companies are not under except for agreements with customers in the Ordinary Course of Business, any liability confidentiality agreement;
(c) any Contract relating to the voting of the Units or obligation under the election of directors of AZNA;
(d) any agreement pursuant to which third parties have been provided with products that can be returned or indenture relating to the Cotton Group Companies in the event they are not sold and which could involve a liability borrowing of money or placing an Encumbrance on any of the Cotton Group Companies assets of AZNA;
(e) any guaranty of any obligation for borrowed money or otherwise;
(f) any lease agreement under which it is lessor or lessee of any property, real or personal, except leases for personal property involving less than $10,000 individually and $25,000 or more in the aggregate;
(cg) The Cotton Group Companies do any Contract (including, but not have limited to, purchase orders);
(h) any Contract or group of related Contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $10,000 over the remaining term of the Contract;
(i) any outstanding loan Contract or loan group of related Contracts with the same party not otherwise disclosed in Part 3.1(L)(i) of the AZNA Disclosure Letter (other than any Contract or group of related Contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 days’ or less notice without penalty and involving more $10,000 over the remaining term of the Contract;
(j) any Contract which prohibits AZNA or any other Affiliate from freely engaging in any business, or which prohibits AZNA or any Affiliate from soliciting customers or any other business, anywhere in the world;
(k) any Contract for the manufacture, supply and/or distribution of the products or services of AZNA (including any distributor, sales and original equipment manufacturer contract);
(l) any franchise agreement, marketing agreement, or royalty agreement;
(m) any Contract or commitment for capital expenditures in excess of $25,000;
(excluding credit extended n) any agreement for the sale of any capital asset;
(o) any agreement not otherwise disclosed in Part 3.1(L)(i) of the AZNA Disclosure Letter involving material non-contingent payment obligations by AZNA;
(p) any Contract under which the rights of AZNA may be adversely affected as a result of the change in control of AZNA contemplated by this Agreement;
(q) any power of attorney granted by AZNA to any Governmental Body or other Person;
(r) any agreement which provides a rate guaranty extending more than one year after the date hereof;
(s) any Contract which gives any Person any right to any intellectual property or other proprietary right of AZNA; and
(t) any agreement not otherwise disclosed in Part 3.1(L)(i) of the AZNA Disclosure Letter which is either material to the business of AZNA, taken as a whole, or was not entered into in the Ordinary Course of Business to purchasers of job materials) to any person, or Business.
(ii) any factoring, credit line AZNA has performed in all material respects all obligations required to be performed by it in connection with the Contracts required to be disclosed in the AZNA Disclosure Letter (whether or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtednessnot under the caption referencing this Section 3.1(L)) and except for ------------- negotiable instruments are not in the process default in any material respect under any such Contract . AZNA has no present expectation or intention of collection, the Cotton Group Companies do not have fully performing any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related material obligation pursuant to any such person Contract or with any company or other organization commitment required to be disclosed in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) AZNA Disclosure Letter. To the Knowledge of the Cotton Group Companies AZNA, there is no current breach or anticipated breach by any Seller, no Cotton Group Company is a other party to any such Contract.
(iii) Prior to the date of this Agreement, Finisar has been supplied with a true and correct copy of each written Contract, and a written description of each oral Contract, referred to in the AZNA Disclosure Letter (whether or bound by any presently or previously existing contractnot under the caption referencing this Section 3.1 (L)), agreement together with all amendments, waivers or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderchanges thereto.
Appears in 1 contract
Sources: Purchase Agreement (Finisar Corp)
Contracts and Commitments. SCHEDULE 4.23 sets forth (a) Schedule 4.15
(a) is a complete and accurate list of all of the ------------------------- ---------------- following Commitments (including all amendments thereto) with respect to the Business or the Subject Assets, other than any such Commitments which are Excluded Assets and other than the Customer Contracts (as defined in Paragraph 4.15(c)): (i) all leases and licenses for and other agreements relating to any hardware, software, execution systems and data feeds and other data processing systems or other electronic or computer systems, including chips, firmware, hardware or software, used by Seller and licensed from third parties, and all agreements with service bureaus and other third parties for electronic data manipulation, maintenance or storage, (collectively, the "Third Party Systems"); (ii) all Commitments, ------------------- including all other leases and licenses, and all supply agreements, purchase orders, loan agreements, security agreements, notes, guaranties, mortgages, royalty agreements, licensing agreements, Authorizations, employment agreements, covenants not to compete, confidentiality agreements, commission agreements, sales representative, distributorship or marketing agreements, insurance plans, bonus plans, and compensation plans or other employee plans, not listed on Schedule 4.3, Schedule 4.11(b) or ------------ ---------------- Schedule 4.18, not covered by clause (i) of this Paragraph 4.15(a) and made ------------- Cotton Group Companies' contracts in the ordinary course of the Business for an amount greater than Five Thousand Dollars ($5,000) or which cannot be terminated by Seller without penalty upon not more than thirty (30) days notice; and (iii) all Commitments not covered by clauses (i) and (ii) of this Paragraph 4.15(a), and not made in the ordinary course of the Business or otherwise material to the Business or the Subject Assets. True and correct copies or memoranda (describing each with customers with respect to oral agreements or arrangements) of each of the Commitments required to be listed on Schedule 4.15(a), and ---------------- all amendments and modifications thereof, have been delivered to Purchaser. Seller is not a party to nor is Seller bound by any other Commitment which relates to the Subject Assets or the Business, except those listed on Schedule 1.1(g) or those not required to be so listed because not covered --------------- by clauses (i) through (iv) of the foregoing provision, and made in the ordinary course of business for an estimated value amount less than $5,000 and terminable by Seller without penalty upon not more than thirty (30) days notice and not otherwise material to the Business or the Subject Assets.
(b) Seller and, to the knowledge of $50,000.00 Seller and ZCO, each other party to each Commitment, (i) have performed in all material respects each term, covenant, and condition of each Commitment which is to be performed by them, and (ii) are not in any material default or moreviolation of any such Commitments, including any material default or breach upon the lapse of time, the giving of notice, or both). Each Commitment is in full force and effect and constitutes the legal and binding obligation of Seller, and to the knowledge of Seller and ZCO, the other parties thereto. Except as set forth on SCHEDULES 4.10(D) (LeasesSchedule 4.15(b), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have no Commitment requires the consent of any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractorother ---------------- party thereto in order for Seller to assign such Commitment to, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as to enter into a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided sublease with products that can be returned respect to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;property subject to such Commitment with, Purchaser hereunder.
(c) The Cotton Group Companies do not have (iAttached hereto as Schedule 4.15(c) any outstanding loan or loan commitment (excluding credit extended are true and correct copies ---------------- of all of the standard forms of agreement and other documentation used in the Ordinary Course of Business with respect to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except customer accounts as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract date hereof and as of the Closing, including all such agreements and other documentation and any deviations therefrom which deviations impose any material obligation on the broker-dealer with respect thereto or commitment of any other person, corporation, partnership, joint venture, association, organization will or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related could reasonably be expected to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete result in any line of business in consent required to be obtained from any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company customer who is a party to or bound by any presently or previously existing contractan Assumed Contract which consent is different from that being obtained as part of the Regulatory Approvals (collectively, agreement or the "Customer Contracts"). There are no Commitments, other arrangement that has had or may than those in the future have a Material Adverse Effect upon ------------------ forms of the Cotton Group BusinessCustomer Contracts, earnings or financial condition between Seller and any customers. Assuming that the consent of any Cotton Group Company. The Cotton Group Companies have made available the customers who are parties to Purchaser truethe Customer Contracts is obtained pursuant to the Customer Consents, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereundercustomer agreements are assignable.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as specifically contemplated by this Agreement and except as set forth on SCHEDULES 4.10(D) (Leases)the "Contracts Schedule" attached hereto, 4.11 ----------------- ---- (Indebtedness)the Company is not a ------------------ party to or bound by, 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal;
(ii) any contract for the employment of any officer, employeeindividual employee or other person on a full-time or consulting basis or any severance agreements;
(iii) agreement or indenture relating to the borrowing of money or to mortgaging, agentpledging or otherwise placing a Lien on any of its assets;
(iv) contract under which the Company has advanced or loaned any other Person amounts in the aggregate exceeding $10,000;
(v) agreement under which the Company has granted any Person any registration rights (including, consultantwithout limitation, advisordemand and piggyback registration rights);
(vi) agreements with respect to the lending or investing of funds;
(vii) license or royalty agreements;
(viii) guaranty of any obligation, salesman, manufacturer's representative, distributor, dealer, subcontractorother than endorsements made for collection;
(ix) lease or agreement under which it is lessee of, or broker that holds or operates, any personal property owned by any other party calling for payments in excess of $10,000 annually;
(x) 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;
(xi) contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, not cancelable terminable by it on 30 days or less notice without penalties or involving more than $10,000;
(xii) contract which prohibits it from freely engaging in business anywhere in the Cotton Group Companies on notice world; or
(xiii) other agreement material to it whether or not entered into in the Ordinary Course of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;Business.
(b) The Cotton Group Companies are Except as disclosed on the Contracts Schedule, (i) no contract or ------------------ commitment required to be disclosed on the Contracts Schedule has been breached ------------------ or canceled by the other party and neither the Company nor any Seller has knowledge of any anticipated breach by any other party to any contract set forth on the Contracts Schedule, (ii) no customer or supplier has indicated in writing ------------------ or orally to the Company, or any Seller that it shall stop or decrease the rate of business done with the Company or that it desires to renegotiate its contract or current arrangement with the Company, (iii) the Company has performed all the obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule and is not in ------------------ default under or in breach of any liability contract or commitment required to be disclosed on the Contracts Schedule, and no event has occurred which with the ------------------ passage of time or the giving of notice or both would result in a default or breach thereunder, (iv) the Company has no present expectation or intention of not fully performing any obligation under any agreement pursuant to which third parties have been provided with products that can be returned to any contract set forth on the Cotton Group Companies Contracts Schedule, and (vi) each agreement is legal, valid, binding, ------------------ enforceable and in full force and effect and will continue as such following the event they are not sold and which could involve a liability consummation of the Cotton Group Companies of $25,000 or more in the aggregate;transactions contemplated hereby.
(c) The Cotton Group Companies do not Sellers have (i) any outstanding loan or loan commitment (excluding credit extended in provided the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) Purchaser with a true and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies copy of all contracts, agreements, plans, leases, policies and licenses referred to, or 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 or listed on, any Schedule delivered hereundertherein.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as set forth on SCHEDULES 4.10(Din Schedule 2.7, Seller has no (i) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor------------ collective bargaining agreement, or broker any agreement that contains any severance pay liabilities or obligations; (ii) employment, consulting or similar agreement, contract or commitment which is not cancelable terminable without penalty or cost by the Cotton Group Companies Seller on notice of not longer than thirty (30) days and without liabilityor less or which contains an obligation of Seller to pay and/or accrue more than $20,000 per year; (iii) note or other evidence of Indebtedness for borrowed money or the deferred purchase price of property or services, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve involves a liability of the Cotton Group Companies more than $100,000; (iv) agreement of $25,000 guaranty or more in the aggregate;
indemnification; (cv) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any personagreement, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of Seller, any Cotton Group Company Owner or, to compete Seller's Knowledge, executive, officer or key employee of Seller to engage in any line of business or compete with any Person; (vi) agreement, contract or commitment relating to expenditures in excess of $100,000; (vii) agreement, contract or commitment (written or oral) with a supplier of Seller that provided more than $100,000 in goods or services to Seller in fiscal year 2000 or is reasonably expected to provide such amount or more in fiscal year 2001; or (viii) agreement, contract or commitment (written or oral) with customers or other Persons which involves $100,000 or more and, by its terms, is not cancelable without penalty or cost within sixty (60) days; (ix) agreement, contract or commitment providing for the sharing, transfer, license, or other disposition by the Seller of any geographic area Business Rights or requiring Proprietary Information; or (x) agreement, contract or commitment of the Seller with any Cotton Group Company to share any profits;of the Owners or their respective Affiliates.
(gb) There Except as set forth in Schedule 2.7, (i) Seller is no contractnot to its ------------ knowledge in breach of, agreement nor has Seller received in writing any claim or other arrangement entitling assertion that it has breached, any person of the terms or other entity to any profits, revenues or cash flows conditions of any Cotton Group Company agreement, contract or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, commitment set forth or required to be referred set forth in any of the Purchased Contracts; and (ii) each Purchased Contract is in full force and effect in the form delivered to Buyer and, to Indemnitors' Knowledge, there is no material breach or listed ondefault by any party thereto, and Seller has not received any notice (in writing or otherwise) that any party thereto wishes to cancel or not renew such Purchased Contract.
(c) Except as set forth in Schedule delivered hereunder2.7, to the Seller's Knowledge ------------ there has not been any material adverse change since March 31, 2001 in the business relationship of the Seller relating to any of the Purchased Assets with any material customer of or material supplier to the Seller since March 31, 2001.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, Section 2.13(a) of the Company Disclosure Schedule contains a list (indicating the clause of this Section 2.13 pursuant to which disclosure is made) of all of the following written or oraloral contracts or agreements (including any and all amendments thereto), other than agreements listed in Sections 2.1(b), 2.8(a), 2.9(a), 2.12(a) and (b), 2.15(b), 2.16 or 2.17(c) of the Company Disclosure Schedule and other than purchase orders made in the ordinary course of business, to which, as of the date hereof, the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is bound (collectively, the "Material Contracts"): (i) any agreements with any officerpresent shareholder, employee, agentofficer, consultantdirector or consultant (or former shareholder, advisoremployee, salesmanofficer, manufacturer's representativedirector or consultant to the extent there remain at the date hereof obligations to be performed by the Company or any of the Company Subsidiaries); (ii) agreements or indentures relating to the borrowing of money; (iii) indemnification agreements or guaranties of any obligation for borrowed money or otherwise; (iv) contracts which prohibit the Company or any of the Company Subsidiaries from freely engaging in business anywhere in the world; (v) any joint venture or profit-sharing agreement (other than with employees); (vi) contracts, distributornot entered into in the ordinary course of business on an arm's- length basis, dealerthat are continuing over a period of more than six months from the date hereof and are not terminable by the Company or the Company Subsidiary party thereto on 60 days or less notice without penalties or premiums (including contracts to provide advertising allowances or promotional services); (vii) any agreements for the purchase by the Company or any of the Company Subsidiaries of any materials, subcontractorequipment, services, or broker supplies not entered into in the ordinary course of business on an arm's-length basis, that is may not cancelable be terminated by the Cotton Group Companies on notice Company or the Company Subsidiary party thereto without penalty upon less than three months' notice; (viii) any agreements or commitments for the acquisition, construction or sale of fixed assets owned or to be owned by the Company or any of the Company Subsidiaries that continue for a period of more than six months from the date hereof and may not longer be terminated without penalty by the Company or the Company Subsidiary party thereto prior to the expiration of such six-month period; (ix) any agreements that provide for the distribution of goods or services that continue for a period of more than thirty six months from the date hereof and may not be terminated without penalty by the Company or the Company Subsidiary party thereto prior to the expiration of such six-month period; (30x) days and without liability, penalty any agreements or premium arrangements for the sale of any kindof the assets, properties, services or rights of the Company or any of the Company Subsidiaries other than in the ordinary course of business on an arms length basis or for the grant of any preferential rights to purchase any of its assets, properties or rights or that require the consent of any third party to the transfer and assignment of any of its assets, properties or rights; (xi) any agreements with any third party to develop any intellectual property, franchise or marketing concepts involving payments by the Company or the Company Subsidiary party thereto in excess of Cdn. $10,000; (xii) sponsoring agreements involving payments by the Company or the Company Subsidiary party thereto in excess of Cdn. $10,000; (xiii) any commitments for charitable contributions or any other agreements between the Company or any Company Subsidiary and the ▇▇▇ ▇▇▇▇▇▇ Children's Foundation; and (xiv) any other agreements which (A) are material to the Business of the Company and the Company Subsidiaries taken as a whole or (B), except liabilities as disclosed in Section 2.13(b) of the Company Disclosure Schedule, pursuant to the terms of which arise as the consent of a matter of law upon termination of employment, or any agreement or arrangement providing third party would be required for the payment consummation of any bonus the transactions contemplated hereby or commission based on sales or earnings;by the Transaction Agreements.
(b) The Cotton Group Companies are not under Except as disclosed in Section 2.8(a) or Section 2.13(b) of the Company Disclosure Schedule, neither the Company nor any liability of the Company Subsidiaries is a party to any contract, agreement or obligation under understanding which contains a "change in control" or similar provision or any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and other provision which could involve a liability be triggered by the execution and delivery of, or the consummation of the Cotton Group Companies transactions contemplated by, this Agreement or the Transaction Agreements; and the execution and delivery of, or the consummation of $25,000 the transactions contemplated by, this Agreement or more the Transaction Agreements will not (either alone or upon the occurrence of any additional acts or events) by reason of any such provision result in any payment (whether of severance pay or otherwise) becoming due from the aggregate;Company or any of the Company Subsidiaries to any person.
(c) The Cotton Group Companies do not have (i) any outstanding loan On or loan commitment (excluding credit extended in before the Ordinary Course of Business to purchasers of job materials) to any personDelivery Date, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contractsMaterial Contracts will be provided to Wendy's or Wendy's solicitors. All Material Contracts have been duly executed and are valid and binding and in full force and effect and, agreementsexcept as set forth in Section 2.13(c) of the Company Disclosure Schedule, plansnone of the Company, leasesany Company Subsidiary or, policies and licenses referred toto the actual knowledge of Seller or the Company, any other party to any Material Contract has breached any provision of, or required to be referred to is in default under, the terms of any Material Contract and no event has occurred which with the lapse of time or listed on, the giving of notice or both would constitute a breach or default by any Schedule delivered hereunderparty thereto.
Appears in 1 contract
Sources: Share Purchase Agreement (Wendys International Inc)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not Schedule 5.19 hereto (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following contracts (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all amendments and supplements thereto, have been delivered or made available to HHTI), to which STH or any outstanding of the STH Subsidiaries is a party or by which any STH Hotel or the Office Building is bound:
(i) all contracts providing for the leasing or management of one or more of the STH Hotels or the Office Building or any portion of one or more of the STH Hotels;
(ii) all STH Franchise Agreements;
(iii) all material contracts providing for a commitment of employment or consultation services for a specified or unspecified term;
(iv) all contracts with any person containing any provision or covenant prohibiting or materially limiting the ability of STH or any of the STH Subsidiaries to engage in any business activity, hire employees, solicit customers or otherwise compete with any person;
(v) all partnership, joint venture, stockholders' or other similar contracts with any person;
(vi) all notes, debentures, bonds and other evidence of Indebtedness;
(vii) all contracts relating to any business combination;
(viii) all contracts between or among STH or any of the STH Subsidiaries, on the one hand, and any of their stockholders or affiliates, on the other hand;
(ix) all collective bargaining or similar labor contracts; and
(x) all other contracts that involve the annual payment or potential annual payment pursuant to the terms of such contract, written by or oralto STH or any of the STH Subsidiaries of more than $25,000 or aggregate payments in excess of $100,000 that will not (A) be fully performed on or prior to the Effective Time, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor(B) expire by their terms prior to the Effective Time, or broker that is not (C) be cancelable by the Cotton Group Companies on notice Surviving Entity, without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and sale of not longer than thirty (30) days assets, advance booking contracts and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;banquet contracts.
(b) The Cotton Group Companies are not Each contract required to be disclosed on Schedule 5.19 is in full force and effect and constitutes a legal, valid and binding agreement, enforceable in accordance with its terms and, except as disclosed on Schedule 5.19, neither STH, any of the STH Subsidiaries nor, to the knowledge of STH, any other party to such contract is in violation, breach or default under any liability such contract (or obligation with notice or lapse of time or both would be in violation, breach or default under any agreement pursuant to which third parties have been provided with products that can be returned to such contract), the Cotton Group Companies in the event they are not sold and which could involve a liability effect of the Cotton Group Companies of $25,000 which, individually or more in the aggregate;, could reasonably be expected to result in a Material Adverse Effect.
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted STH Franchise Agreements disclosed on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect Schedule 5.19 constitute all of the contract franchise or commitment similar agreements necessary to operate and manage the STH Hotels and neither STH nor any STH Subsidiary has received any notice or has any knowledge of any other person, corporation, partnership, joint venture, association, organization an event of default or other entity;
(e) There are no contracts termination or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to proposed termination under any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderSTH Franchise Agreement.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (1) Except as set forth on SCHEDULES 4.10(Din Section 3.18 or in the "Contracts Schedule" attached hereto as Schedule 3.12(a) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policiesor in the "Customer Contracts Schedule" attached hereto as Schedule 3.12(d), and ---- ---- 4.23 except for any contract entered into in the ordinary course of the Business as to which Seller's remaining obligation is less than $10,000 as of the date hereof (Contracts and Commitments): ----
(a) The Cotton Group Companies provided that all of such contracts do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of exceed $25,000 or more 50,000 in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are Seller is not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any:
(1) bonus, 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 severance agreements or arrangements or contracts requiring Seller to pay post-retirement medical benefits;
(2) contract with any presently labor union or previously existing contract for the employment of any officer, individual employee or other person on a full-time, part-time or consulting basis;
(3) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the Purchased Assets;
(4) guarantee of any obligation for borrowed money or otherwise, other than endorsements made for collection in the ordinary course of business;
(5) agreement or commitment with respect to the lending or investing of funds to or in other persons or entities;
(6) license or royalty agreement;
(7) lease or agreement under which it is lessee of or holds or operates any personal property owned by any other party;
(8) 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;
(9) contract or group of related contracts with the same party for the purchase or sale of products or services other than the Customer Contracts (as defined in Section 3.12(d) hereof);
(10) other contract with any party continuing over a period of more than six months from the date or dates thereof, not terminable by it on thirty (30) days' or less notice without penalties;
(11) contract which prohibits it from freely engaging in business or in any way restrains its business activities anywhere in the world;
(12) contract relating to the distribution of its products;
(13) contract with any officer, director, partner, shareholder or other insider; or
(14) other agreements whether or not entered into in the ordinary course of business.
(2) Except as specifically disclosed in the Contracts Schedule, (i) to Seller's knowledge, no contract or commitment has been breached in any respect or canceled by the other party, (ii) since the date of the Latest Balance Sheet, no supplier has notified Seller that it shall stop or decrease in any material respect the rate of business done with Seller, (iii) Seller has in all material respects performed all the obligations required to be performed by it to the date of this Agreement and is not in receipt of any claim of default under any material lease, contract, commitment or other agreement to which it is a party; and (iv) no event has occurred which with the passage of time or the giving of notice or both would result in a material breach or default under any lease, contract, instrument or other agreement to which Seller is a party.
(3) Purchaser has been supplied with a true and correct copy of all written contracts which are referred to on the Contract Schedule, together with all amendments, waivers or other changes thereto.
(4) Seller has no knowledge of any (i) pending or threatened termination, cancellation, limitation, modification or change in any of Seller's business relationship with any customer or group of customers related to the Business or (ii) changes or pending changes in any law, rule, regulation, technology, or business relationship or other circumstance that is reasonably likely to result in the loss of any customers related to the Business after the date hereof. Each contract, agreement or lease with customers of Seller relating to the Business ("Customer Contracts") is in one of the forms attached to the "Customer Contract Schedule" attached hereto as Schedule 3.12(d), except for completion of blanks and has not been modified with respect to the limitations on liability or service charge increase provisions, whether in writing, orally, by course of dealings or otherwise, and Seller is not providing or obligated to provide goods or services to others except pursuant to a written contract in such form in each case. Except as indicated on the Customer Contract Schedule, (A) to the Seller's knowledge, each of the Customer Contracts is valid, enforceable and in full force and effect in accordance with the terms thereof, (B) to the Seller's knowledge, there is no existing material default or event or condition which, with notice or lapse of time or both, would constitute an event of material default under any Customer Contract, (C) no Customer Contract has been amended, modified, supplemented or otherwise altered orally, in writing or by course of conduct, (D) except as set forth on Schedule 3.12(d), no Customer Contract requires the consent of the Customer or any other arrangement that has had or may in the future have party to affect a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available valid assignment thereof to Purchaser truewithout causing a default or giving rise to a right of termination thereunder, correct and complete copies of (E) each Customer Contract complies with all contractsapplicable laws, agreements, plans, leases, policies rules and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderregulations.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as set forth on SCHEDULES 4.10(D) (Leases)Schedule 4.14, 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----Sellers are not a party to any oral or written:
(ai) The Cotton Group Companies do not have contract with any outstanding contractlabor union or any bonus, written pension, profit sharing, retirement or oralany other form of deferred compensation plan or any stock purchase, with stock option or similar plan or practice, whether formal or informal, or any severance agreement or arrangement;
(ii) management agreement, contract for the employment of any officer, employeepartner, agentindividual employee or other person on a full-time, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, part-time or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty consulting basis or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus cash or commission based on sales other compensation or earningsbenefits upon the sale of the Business or prohibiting competition or the disclosure of trade secrets or Confidential Information;
(biii) The Cotton Group Companies are not under agreement or indenture relating to Indebtedness or placing a Lien on any liability of Sellers’ assets or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability letter of the Cotton Group Companies of $25,000 or more in the aggregatecredit arrangements;
(civ) The Cotton Group Companies do not have agreements with respect to the lending or investing of funds;
(iv) license or royalty agreements;
(vi) nondisclosure or confidentiality agreements;
(vii) lease or agreement under which Sellers are lessees of or hold or operate (A) any outstanding loan real property owned by any other party or loan commitment (excluding credit extended B) personal property owned by any other party for which the annual rental exceeds $15,000;
(viii) lease or agreement under which Sellers are lessors of or permit any third party to hold or operate any property, real or personal, owned or controlled by Sellers;
(ix) broker, distributor, vendor, customer or maintenance agreements;
(x) other contract or group of related contracts with the same party continuing over a period of more than six (6) months from the date or dates thereof, not terminable by Sellers upon thirty (30) days’ or less notice without penalty or involving more than $15,000;
(xi) contract which prohibits Sellers from freely engaging in business anywhere in the world;
(xii) contract relating to the marketing, sale, advertising or promotion of Sellers’ products;
(xiii) franchise or agency agreements;
(xiv) contract with any officer, director, employee, shareholder, or Affiliate of Sellers or any individual related by marriage or adoption to any such individual or any entity in which any such Person owns any beneficial interest;
(xv) warranty agreement with respect to products sold or indemnity agreement with any supplier to Sellers under which Sellers are obligated to indemnify such supplier against product warranty or infringement or similar claims;
(xvi) agreements relating to ownership of or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(xvii) contracts, agreements or arrangements providing for commissions or other payments to or by any Person based on or determined by reference to sales, purchases or profits;
(xviii) power of attorney executed by or on behalf of Sellers;
(xix) licenses (including all inbound and outbound licenses), other than licenses for off-the-shelf software solely for the internal use of Sellers for an aggregate purchase price of less than $5,000 to which Sellers are a party and any other agreements affecting Sellers’ ability to use or disclose any Proprietary Rights; or
(xx) other agreement material to Sellers, whether or not entered into in the Ordinary Course of Business Business.
(b) Except as specifically disclosed on Schedule 4.14, (i) Sellers and the other party thereto have performed all obligations required to purchasers be performed by such Person under the contracts or commitments required to be listed on Schedule 4.14 and there is no breach of job materials) or default under such contract or commitment or any event which, upon giving of notice or lapse of time or both, would constitute a breach or default (other than technical breach or default that do not result in economic consequences to any personthe contracting parties), or (ii) to the Knowledge of Sellers, there is no anticipated breach by any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject party to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or commitment required to be listed on Schedule 4.14, (iii) Sellers have not assigned, delegated or otherwise transferred to any Person any of its rights, title or interest under any contract or commitment required to be listed on Schedule 4.14, and (iv) each contract and commitment required to be listed on Schedule 4.14 is legal, valid, binding, enforceable and in full force and effect, and will continue as such following the consummation of the transactions contemplated hereby (subject to bankruptcy, moratorium and similar laws and subject to the application of specific performance and other equitable principles).
(c) Buyers have 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 referred to on Schedule 4.14, together with all amendments, exhibits, attachments, waivers or listed on, any Schedule delivered hereunderother changes thereto.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list To the best of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 Seller’s Knowledge:
(a) except as expressly contemplated by this Agreement or more. Except as set forth on SCHEDULES 4.10(D) (Leases)Schedule 3.14, 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that the Agency is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently written or previously existing contractoral:
(i) 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, arrangement or Agency, whether formal or informal;
(ii) management agreement or contract for the employment of any officer, individual employee or other arrangement that has had Person on a full-time, part-time, consulting or may other basis (1) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or (2) otherwise restricting its ability to terminate the employment of any employee at any time for any lawful reason or for no reason without penalty or liability;
(iii) contract or agreement involving any Government Entity;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Agency or any letter of credit arrangements, or any guarantee therefor;
(v) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof, not terminable by either of the Agency upon 30 days’ or less notice without penalty or involving more than $10,000;
(vi) agreements relating to the ownership of, Investments in or loans and advances to any Person, including Investments in joint ventures and minority equity investments;
(vii) license, royalty, indemnification or other agreement with respect to any intangible property (including any Intellectual Property Rights);
(viii) agent, sales representative, sales or distribution agreement;
(ix) power of attorney or other similar agreement or grant of agency;
(x) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the future have world, including, without limitation, any nondisclosure or confidentiality agreements; or
(xi) other agreement which is material to its operations and business prospects or involves a Material Adverse Effect upon consideration in excess of $10,000 annually, whether or not in the Cotton Group Businessordinary course of business.
(b) To the best of Sellers’ Knowledge, earnings or financial condition all of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all the contracts, agreements, plans, leases, policies agreements and licenses referred to, instruments set forth or required to be referred to set forth on Schedule 3.12 (the “Material Contracts”) are valid, binding and enforceable in accordance with their respective terms. Each of the Material Contracts shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby.
(c) The Purchaser has been supplied with a true, complete and correct copy of each written Material Contract, together with all amendments, waivers or listed onother changes thereto (all of which amendments, any waivers or other changes thereto are described on Schedule delivered hereunder3.12).
Appears in 1 contract
Sources: Stock Purchase Agreement (Healthessentials Solutions Inc)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list (a) Schedule 4.10 lists each of the ------------------------- ------------- Cotton Group Companies' contracts and agreements of the types described below, excluding, however, any such contracts or agreements which relate exclusively to Excluded Assets, to which the Seller or any of its Subsidiaries is a party or is otherwise bound as of the date hereof (the “Material Contracts”):
(i) contract with any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option or similar plan or practice, whether formal or informal, or any severance agreement or arrangement;
(ii) management agreement, contract for the employment of any officer, manager, partner, individual employee or other person on a full-time, part-time or consulting basis or providing for the payment of any cash or other compensation or benefits upon the sale of the Business or prohibiting competition or the disclosure of trade secrets or Confidential Information;
(iii) agreement or indenture relating to Indebtedness or placing a Lien on any of the Purchased Assets or letter of credit arrangements;
(iv) license or royalty agreements;
(v) nondisclosure or confidentiality agreements pursuant to which Seller is obligated to maintain the confidentiality of, or not to disclose, designated information;
(vi) lease or agreement under which Seller is lessee of or holds or operates any personal property leases, owned by any other party for which the annual rent exceeds $100,000;
(vii) broker, distributor, vendor or maintenance agreements;
(viii) other contract or group of related contracts with customers the same party continuing over a period of more than six months from the date or dates thereof, not terminable by Seller upon thirty (30) days’ or less notice without penalty or involving more than $100,000;
(ix) consulting, maintenance or any other similar agreement, contract or commitment (including any employee leasing or outsourcing arrangement) providing for annual aggregate payments of more than $100,000;
(x) contract which prohibit Seller from freely engaging in business anywhere in the world;
(xi) contract with an estimated value any officer, director, employee, shareholder, or Affiliate of $50,000.00 Seller (or moreany individual related by marriage or adoption to any such individual or any entity in which any such Person owns any beneficial interest);
(xii) agreements relating to ownership of or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(xiii) power of attorney executed by or on behalf of Seller pursuant to which Seller has granted another Person authority to act in Seller’s name or on Seller’s behalf;
(xiv) material contracts and licenses (including all inbound licenses) to which Seller is a party with respect to any Proprietary Rights;
(xv) all oral client and customer engagements and similar arrangements of Seller which, at the time of engagement or any subsequent amendment, provided for services at non-standard rates or on non-customary terms and conditions; or
(xvi) other agreement material to the Business not entered into in the ordinary course of business.
(b) Seller has made available to Buyer a true and correct copy of all written Material Contracts (and a true and correct written description of all oral Material Contracts), together with all amendments, exhibits, attachments, waivers or other changes thereto. Each written Material Contract is legal, valid, binding and enforceable by and against Seller or any Subsidiary of Seller (as the case may be) in accordance with its terms and is in full force and effect, except 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 SCHEDULES 4.10(DSchedule 4.10, neither Seller nor any Subsidiary of Seller (as the case may be) (Leases)nor, 4.11 ----------------- ---- (Indebtedness)to the Seller’s Knowledge, 4.12(B) AND (D) (Intellectual Property)any other party, 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies)is in breach or default under any Material Contract, and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contractno conditions or events exist, such that, after notice or lapse of time or both, would constitute a default under a written Material Contract on the part of the Seller or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kindSubsidiary of Seller or, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in Seller’s Knowledge, on the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment part of any other personparties to the Material Contracts, corporationexcept for any breaches, partnershipdefaults, joint ventureterminations, associationmodifications, organization accelerations, conditions or other entity;
(e) There are no contracts events which have been cured or agreements with any director, officer, partner waived or shareholder of any Cotton Group Company, or with any person related which would not be material to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunder.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as set forth on SCHEDULES 4.10(DSchedule 3.13, neither of Chouteau or the Subsidiaries (i) is a party to any collective bargaining agreement or contract with any labor union, (Leasesii) is a party to any written or oral contract relating to any consulting services or to severance pay for any person, (iii) is a party to any written or oral agreement or understanding to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), 4.11 ----------------- ---- except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date, (Indebtedness)iv) is a party to any (A) contract or group of related contracts with the same party for the purchase or sale of products or services, 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), under which the undelivered balance of such products and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have services has a purchase price in excess of $50,000 for any outstanding individual contract, written or oral(B) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, with which is not entered into in the ordinary course of business and is either not terminable by it on 30 days' or less notice without penalty or involves more than $50,000 for any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractorindividual contract, or broker that (C) other agreement material to the business of Chouteau and the Subsidiaries, taken as a whole, which is not cancelable by entered into in the Cotton Group Companies on notice ordinary course of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employmentbusiness, or (v) has any agreement or arrangement providing commitments for the payment capital expenditures in excess of any bonus or commission based on sales or earnings;$25,000.
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned Except as disclosed on Schedule 3.13, (i) to the Cotton Group Companies best knowledge of Chouteau and the Subsidiaries, since the date of the Latest Balance Sheets, no customer has indicated that it will stop or decrease the rate of business done with Chouteau or the Subsidiaries (except for changes in the event they are not sold and which could involve a liability ordinary course of the Cotton Group Companies of $25,000 such business) that would, individually or more in the aggregate;
(c) The Cotton Group Companies do not , have (i) any outstanding loan a material adverse effect on the business, operations or loan commitment (excluding credit extended in financial condition of Chouteau and the Ordinary Course of Business to purchasers of job materials) to any personSubsidiaries, or taken as a whole; (ii) each of Chouteau and the Subsidiaries has performed all obligations required to be performed by it prior to the date hereof in connection with the contracts or commitments set forth on Schedule 3.13, and neither of Chouteau or the Subsidiaries is in receipt of any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process claim of collection, the Cotton Group Companies do not have default under any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment set forth on Schedule 3.13, except for any failures to perform, breaches or defaults which would not, individually or in the aggregate, have a material adverse effect on the business, operations or financial condition of Chouteau and the Subsidiaries, taken as a whole; (iii) neither of Chouteau or the Subsidiaries has any other person, corporation, partnership, joint venture, association, organization present expectation or other entity;
(e) There are no contracts or agreements with intention of not fully performing any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject material obligation pursuant to any contract or agreement containing covenants limiting commitment set forth on Schedule 3.13; and (iv) to the freedom best knowledge of Chouteau and the Subsidiaries, there has been no cancellation, breach or anticipated breach by any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity party to any profitscontract or commitment set forth on Schedule 3.13, revenues except for any cancellation, breach or cash flows of any Cotton Group Company anticipated breach which would not, individually or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future aggregate, have a Material Adverse Effect upon material adverse effect on the Cotton Group Businessbusiness, earnings operations or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser trueChouteau and the Subsidiaries, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereundertaken as a whole.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list 11.1 No member of the ------------------------- ------------- Cotton Group Companies' contracts is a party to nor does it have or has any liability (present or future) under:
(A) any guarantee, indemnity (other than those given in connection with customers with an estimated value infringement of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (LeasesIntellectual Property Rights), 4.11 ----------------- ---- surety relationship or letter of credit (Indebtednessother than as described in paragraph 15 of this Schedule 3);
(B) other than in connection with the Properties, 4.12(Bany contract for rent, lease, hire, hire purchase, credit sale, conditional sale or purchase by instalments calling for payments in excess of L 2,500 per annum;
(C) AND any agency, distributorship or management agreement in relation to which revenues, commissions or expenses are in excess of L 10,000 per annum;
(D) (Intellectual Property)any contract or arrangement which, 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have restricts its freedom to carry on its business in any outstanding contract, written part of the world in such manner as it may think fit or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, ability to transfer the whole or any agreement or arrangement providing for the payment part of any bonus or commission based on sales or earningsits business;
(bE) The Cotton any joint venture agreement or arrangement, partnership rights or obligations or any other similar agreement or arrangement;
(F) any contract or arrangement which relates to matters outside the ordinary business of that member of the Group;
(G) any contract or arrangement in which any director of any member of the Group Companies or any person connected with any such director is interested, either directly or indirectly, but excluding any contract or arrangement relating to either the terms upon which such director is employed or to Vested Options, Accelerated Options and Unvested Options;
(H) any contract or arrangement (other than a contract relating to Intellectual Property Rights) which cannot be terminated by that member on three months' notice or less without payment of compensation of any special fees; or
(I) any contract or arrangement which according to its terms can be terminated in the event of any change in the underlying ownership or control of that member, or where the terms of such contract or arrangement provide for a material amendment in terms upon such change.
11.2 So far as each of the Management Warrantors is aware no member of the Group is under any obligation, nor is any of them a party to any contract, which is material and cannot readily be fulfilled or performed by it on time and without undue or unusual expenditure of money or effort.
11.3 Copies of each agreement, document or other material evidencing, summarising or otherwise containing the terms and conditions of any material rights or obligations of any member of the Group, any contracts or arrangements which are not under of a material value the Group in terms of expenditure or revenue expectations and any contracts that are of fundamental importance to the activities of any member of the Group are attached to the Disclosure Letter.
11.4 Except as disclosed in the Disclosure Letter, no member of the Group has given any guarantee, indemnity, warranty, or made any representation (including by way of side letter or ancillary agreement), in respect of goods or services supplied or contracted to be supplied by it or accepted any liability or obligation under that would apply after any agreement pursuant to which third parties have such goods or services had been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any personsupplied by it, or (ii) any factoringincluding without limitation, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract functionality or commitment future functionality of any other personproducts or services.
11.5 So far as each of the Management Warrantors is aware there is no breach, corporationinvalidity, partnershipor grounds for determination, joint venturerescission, association, organization avoidance or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder repudiation of any Cotton Group Company, or with any person related contract to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge member of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound and no notice has been received by any presently member of the Group alleging any of the foregoing.
11.6 No member of the Group has outstanding any bid or previously existing contracttender or sale or service proposal which is substantial in relation to its business and, agreement or other arrangement that has had or may if accepted, would be reasonably likely to result in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderloss.
Appears in 1 contract
Sources: Share Purchase Agreement (Veritas Software Corp /De/)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as set forth on SCHEDULES 4.10(D) in SCHEDULE 2.19 (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 ("Contracts and Commitments): ----
(a) The Cotton Group Companies do not "), the Sellers and each Acquired Company have any outstanding contractprovided Buyer with a complete, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractoraccurate list of, or broker that made available to Buyer copies of each of the following (each a "Company Commitment") to which an Acquired Company is a party or by which any of its properties is bound and which presently remains executory in whole or in any part: (i) each partnership; or joint venture agreement; (ii) each guaranty or suretyship, indemnification or contribution agreement or performance bond (other than any Guaranty limited as to recourse to no more than Five Thousand Dollars ($5,000) and any Guaranty of any automobile or other vehicle retail installment sales contract entered into and sold to a financial institution in the ordinary course of business); (iii) each instrument, agreement or other obligation evidencing or relating to indebtedness of an Acquired Company involving more than Twenty-Five Thousand Dollars ($25,000) in any single case, or to money lent or to be lent to another Person involving more than One Hundred Thousand Dollars ($100,000) in the aggregate, other than any of its dealership customers in connection with the purchase, or the refinancing of the purchase, of any vehicle; (iv) each contract to purchase or sell real property; (v) each agreement with brokers of motor vehicles or sales or commission agents, public relations or advertising agencies, accountants or attorneys (other than in connection with this Agreement and the transactions contemplated hereby) involving total payments within any twelve (12) month period in excess of Ten Thousand Dollars ($10,000) and which is not cancelable by the Cotton Group Companies on notice of not longer terminable without penalty and no more than thirty (30) days days' prior notice; (vi) each Related Party Agreement involving total payments within any twelve (12) month period in excess of Ten Thousand Dollars ($10,000) and which is not terminable without liabilitypenalty on no more than thirty (30) days' prior notice; (vii) each contract containing any noncompetition agreement, penalty covenant or premium of any kind, except liabilities undertaking; (viii) each Dealer Agreement to which arise as an Acquired Company is a matter of law upon termination of employment, or any party and each other agreement or arrangement providing for the payment purchase from a supplier of any bonus all or commission based on sales substantially all the requirements of an Acquired Company of a particular product or earnings;service; or (ix) each other agreement or commitment not made in the ordinary course of business which is material to the Acquired Companies.
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser trueTrue, correct and complete copies of all contractswritten Company Commitments have heretofore been delivered or made available to Buyer. Except as accurately set forth in SCHEDULE 2.19: (i) there are no existing or asserted defaults, agreementsevents of default or events, plansoccurrences, leasesacts or omissions that, policies and licenses referred towith the giving of notice or lapse of time or both, would constitute defaults or required events of default under any Company Commitment material to be referred the Acquired Companies by an Acquired Company or, to the Knowledge of the Sellers or listed onthe Acquired Companies, any Schedule delivered hereunderother party thereto; and (ii) no penalties have been incurred, nor are amendments pending, with respect to the Acquired Companies Commitments material to the Acquired Companies. All Company Commitments are in full force and effect and are valid and enforceable obligations of the Acquired Company, and to the Knowledge of the Acquired Companies, the other parties thereto in accordance with their respective terms and no defenses, off-sets or counterclaims have been asserted or, to the Knowledge of the Acquired Companies, may be made by any party thereto (other than by an Acquired Company), nor has an Acquired Company waived any rights thereunder, except as described in SCHEDULE 2.19. 18
(c) Except as disclosed in SCHEDULE 2.19 or contemplated hereby or by any other Transaction Document to which an Acquired Company or Stockholder is a party, no Acquired Company or Sellers have received notice of any plan or intention of any other party to any Company Commitment that is Material to the Acquired Companies to exercise any right to cancel or terminate that Company Commitment, and neither the Acquired Companies nor Sellers knows of any condition or state of facts which would justify the exercise of such a right.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 (a) Section 4.8(a) of the Disclosure Schedule sets forth a complete list of each of the ------------------------- ------------- Cotton Group Companies' contracts following written or oral Contracts (collectively, the "MATERIAL CONTRACTS"):
(i) Mass-Market Contract creating any partnership, or any Indebtedness for Borrowed Money;
(ii) Mass-Market Contract (including purchase orders, franchise agreements and undertakings or commitments to any governmental or regulatory authority) not made in the ordinary course of business;
(iii) Contracts of employment with customers Mass-Market Employees (including without limitation employment, change in control, golden parachute, severance or similar agreements or arrangements and other Mass-Market Contracts with an estimated value Mass-Market Employees);
(iv) Mass-Market Contracts consisting of sales commitments for tobacco products;
(v) any other Mass-Market Contract involving payments by Seller in excess of $50,000.00 50,000 annually that are not cancelable on 30-days' notice by Seller, without payment of penalty or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----premium;
(avi) The Cotton Group Companies do not have Mass-Market Contract relating to, or evidences of, or guarantees of, or providing security for, Indebtedness for Borrowed Money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any outstanding contractMass-Market Asset);
(vii) license, written or oralsale, with any officerdistribution, employeecommission, marketing, agent, consultantfranchise, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, technical assistance or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty similar contract relating to or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the marketing and/or sale of the products of the Mass-Market Cigar Business to which Seller is a party or by which Seller is bound;
(viii) Mass-Market Contract that requires the payment or incurrence of a Mass-Market Liability, or the rendering of services or the sale of goods by Seller subsequent to the date of this Agreement of more than $50,000;
(ix) Mass-Market Contract containing a covenant limiting the freedom of the Seller or any bonus Affiliate of the Seller to engage in the Mass-Market Cigar Business or commission based on sales the transactions contemplated by the Ancillary Agreements or earnings;to compete with any Person (other than the Non-Compete Agreement); or
(x) Any other Mass-Market Contract required by applicable law to be filed by Seller with the U.S. Securities and Exchange Commission.
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant Seller has furnished to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve Purchaser a liability copy of each of the Cotton Group Companies of $25,000 or more in the aggregate;Material Contracts, and each such copy is correct and complete and includes all modifications thereof.
(c) The Cotton Group Companies do not have All of the Material Contracts indicated with an asterisk (i"*") on Section 4.8(a) of the Disclosure Schedule are in full force and effect and constitute the legal, valid and binding obligations of Seller and, to the Knowledge of Seller, of the other parties thereto (except, in each case, as may be limited by bankruptcy, reorganization, insolvency and similar laws of general application relating to or affecting the enforcement of rights of creditors or the relief of debtors), and to the Knowledge of Seller, no condition exists or event, act or omission has occurred which, with or without notice, or lapse of time or both, would constitute a default or a basis of force majeure or other claim of excusable delay or nonperformance thereunder. Except for the consents of parties listed on Schedule 4.8(c) (the "REQUIRED CONSENTS"), no consent of any outstanding loan or loan commitment (excluding credit extended in party to the Ordinary Course of Business Material Contracts is required to purchasers of job materials) assign the Material Contracts, and Seller's rights and obligations thereunder, to Purchaser. No other party to any personMaterial Contract has notified Seller of the assertion of its right to renegotiate the terms or conditions of any Material Contract, or (ii) any factoringand, credit line or subordination agreement;to the Knowledge of Seller, no such basis exists.
(d) Except as noted on SCHEDULE 4.11 (IndebtednessFor informational purposes, Seller has set forth in Section 4.8(d) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment Disclosure Schedule a list of any other person, corporation, partnership, joint venture, association, organization or other entity;
Mass-Market Contracts in existence on the date hereof (ei) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred set forth on Schedule 4.8(a) and (ii) with respect to which Seller makes no representation or listed on, any Schedule delivered hereunderwarranty to Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (General Cigar Holdings Inc)
Contracts and Commitments. SCHEDULE 4.23 Section 3.13 of the Disclosure Schedule sets forth a list of all of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 following Contracts (other than Plans, except to the extent contemplated by Sections 3.13(a) or more. Except as set forth on SCHEDULES 4.10(D(b)) to which the Company is a party or by which the Company or its respective assets are bound (Leases)each, 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----a “Material Contract”):
(a) The Cotton Group Companies do not have employment agreements or severance agreements or employee termination arrangements, in any outstanding contract, written or oralsuch case, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by respect to the Cotton Group Companies on notice senior executive officers of not longer than thirty (30) days the Company and without liability, penalty or premium employees earning a base salary in excess of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings$200,000 per year;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided change of control agreements with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability employees of the Cotton Group Companies of $25,000 or more in the aggregateCompany;
(c) The Cotton Group Companies do not have (i) Contracts containing any outstanding loan covenant limiting the ability of the Company to engage in any line of business or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to compete with any person, business or (ii) any factoring, credit line or subordination agreementPerson;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding Contracts with Seller or any contractowner, commitment partner, member, officer, director or liability employee of Seller (whether absoluteother than any employment, accrued, contingent severance and change of control agreements covered by clause (a) or otherwise(b) above), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts Contracts under which the Company has borrowed or agreements with any director, officer, partner or shareholder of any Cotton Group Companyloaned money, or with any person related to any such person or with any company note, bond, indenture, mortgage, installment obligation or other organization evidence of indebtedness for borrowed or loaned money or any guarantee of such indebtedness, in which any directoreach case, officer, partner or shareholder relating to amounts in excess of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest$250,000;
(f) The Cotton Group Companies are not subject leases pursuant to any contract which material real property is leased to or agreement containing covenants limiting from the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profitsCompany;
(g) There is no contractguaranties, agreement suretyships or other arrangement entitling contingent agreements of the Company involving underlying obligations of not less than $250,000;
(h) any person Contract relating to capital expenditures with respect to the Company and involving future payments which exceed $250,000 in any 12-month period;
(i) any Contract relating to the acquisition or disposition of material assets (other entity to than in the ordinary course of business consistent with past practice) or any profits, revenues or cash flows capital stock of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flowsbusiness enterprise; and
(hj) To Contracts (other than those covered by clauses (a) through (i) above) pursuant to which the Knowledge Company is entitled to receive or has an obligation to pay in excess of $1,000,000 over any twelve- month period. The Company has made available to Buyer true, complete, and correct copies of all Material Contracts. Each of the Cotton Group Companies Material Contracts is valid and binding upon the Company and, to the Company’s Knowledge, is in full force and effect in all material respects and enforceable by the Company in accordance with its respective terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. As of the date hereof, with respect to all Material Contracts, neither the Company nor, to the Company’s Knowledge, any Seller, no Cotton Group Company is a other party to any such contract is in breach thereof or bound by default thereunder and, to the Company’s Knowledge, there does not exist under any presently event which, with the giving of notice or previously existing contractthe lapse of time, agreement would constitute such a breach or other arrangement that has had default, except for such breaches, defaults and events as to which requisite waivers or may consents have been obtained or which would not, individually or in the future have aggregate, result in a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderEffect.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have SCHEDULE 3.11 lists each of the following Contracts (x) by which any outstanding contractof the Purchased Assets, written the Inventory or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractorthe Facilities are bound or affected, or broker that (y) to which Seller is a party or by which it is bound in connection with the GAP Business, the Purchased Assets or the Inventory:
(i) all Contracts involving aggregate consideration in excess of US$50,000 or requiring performance by any party more than one year from the Execution Date, which, in each case, cannot cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and be cancelled without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earningswithout more than 180 days’ notice;
(bii) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products all Contracts that can be returned relate to the Cotton Group Companies sale of any of the Purchased Assets or the Inventory, other than in the event they are not sold and which could involve a liability ordinary course of the Cotton Group Companies business, for consideration in excess of $25,000 or more in the aggregateUS$50,000;
(ciii) The Cotton Group Companies do not have (i) all Contracts that relate to the acquisition of any outstanding loan business, a material amount of stock or loan commitment (excluding credit extended in the Ordinary Course assets of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding other Person or any contract, commitment or liability real property (whether absoluteby merger, accruedsale of stock, contingent sale of assets or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect each case involving amounts in excess of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entityUS$50,000;
(eiv) There are no contracts or except for agreements with any directorrelating to trade receivables, officerall Contracts relating to Indebtedness (including, partner or shareholder without limitation, guarantees), in each case having an outstanding principal amount in excess of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interestUS$50,000;
(fv) The Cotton Group Companies are not subject to any contract Contract or agreement containing covenants limiting other document that limits the freedom of Seller or any Cotton Group Company Affiliate of Seller to compete in any line of business in similar to the GAP Business or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any geographic area or requiring any Cotton Group Company to share any profitsasset;
(gvi) There is no contractany partnership, agreement joint venture or other arrangement entitling similar Contract;
(vii) any person agency, dealer, sales representative or other entity to similar agreement;
(viii) all Contracts between or among Seller on the one hand and any profits, revenues or cash flows Affiliate of any Cotton Group Company or requiring any payments or Seller on the other distributions based on such profits, revenues or cash flowshand; and
(hix) To all collective bargaining agreements or Contracts with any labor organization, union or association with respect to the Knowledge Business Employees.
(b) With respect to Seller’s obligations thereunder, all of the Cotton Group Companies or any Contracts set forth on SCHEDULE 3.11 are valid and binding obligations of Seller, no Cotton Group Company is a party enforceable in accordance with their respective terms (subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or bound affecting creditors’ rights and to general principles of equity). Except as specifically set forth on SCHEDULE 3.11, (i) to Seller’s knowledge, no Contract or commitment disclosed on SCHEDULE 3.11 has been breached in any material respect by any presently the other party thereto, or previously existing contractcancelled by the other party thereto, agreement and (ii) Seller has performed all material obligations under the contracts listed on SCHEDULE 3.11 required to be performed by Seller as of the Execution Date and no event has occurred which, with notice or other arrangement that lapse of time or both, would constitute such a material breach or default by Seller.
(c) Seller has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, Buyer a true and correct and complete copies copy of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be written Contracts which are referred to on SCHEDULE 3.11, together with all amendments, exhibits, attachments, waivers or listed on, any Schedule delivered hereunderother changes thereto.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as set forth on SCHEDULES 4.10(D) (Leases)in Schedule 4.11 hereto, 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that Seller is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by, whether written or oral, any: (i) collective bargaining agreement or contract with any labor union, whether formal or informal; (ii) contract for the employment of any officer, individual employee or other person on a full-time, part-time or consulting basis or any severance agreements; (iii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any of the Purchased Assets; (iv) license or royalty agreements; (v) lease or agreement under which Seller is lessee of, or holds or operates, any personal property owned by any presently other party for which annual rental exceeds $50,000; (vi) lease or previously existing contractagreement under which Seller is lessor of or permits any third party to hold or operate any property, agreement real or personal, owned or controlled by it for which annual rental exceeds $50,000; (vii) contract or group of related contracts with the same party for the purchase or sale of raw materials, commodities, supplies, products or other arrangement that has had personal property or for the furnishing or receipt of services which either calls for performance over a period of more than six months or involves a sum in excess of $50,000 or which may not be terminable with less than six months' notice; (viii) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $50,000; (ix) franchise agreements, (x) agreements, contracts or understandings pursuant to which Seller subcontracts work to third parties; (xi) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the future world; or (xii) any other agreement which Seller deems material to the Business taken as a whole whether or not entered into in the ordinary course of business.
(b) Except as disclosed in Schedule 4.11, (i) all of the Assumed Contracts are in full force and effect, have a Material Adverse Effect upon not been amended or modified as of the Cotton Group BusinessClosing, earnings and are valid, binding and enforceable in accordance with their respective terms, (ii) to the knowledge of Seller, no Assumed Contract has been breached or financial condition canceled by the other party since December 31, 1995, and (iii) Seller has, to its knowledge, performed all of the obligations required to be performed by Seller in connection with the Assumed Contracts and is not in receipt of any Cotton Group Company. The Cotton Group Companies have claim of default under any such contract or commitment.
(c) Seller has provided Buyer with a true and correct copy of all Assumed Contracts, and has made available to Purchaser trueBuyer those written contracts referred to on Schedule 4.11 which are not Assumed Contracts, correct in each case together with all amendments, waivers or other changes thereto. To Seller's knowledge, Schedule 4.11 contains an accurate and complete copies description of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be material terms of all oral contracts referred to or listed on, any Schedule delivered hereundertherein.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have Except for contracts, commitments, plans, agreements, arrangements, understandings and licenses described in Schedule 2.16(a) hereto (the “Material Contracts”), neither the Company nor any outstanding contractof its Subsidiaries is a party to or subject to any Contract (excluding purchase orders entered into in the ordinary course of business):
(i) for the purchase of any commodity, written material, equipment or oralasset (except for purchase orders in the ordinary course of business, consistent with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractorpast practice, or broker that is not cancelable by contracts involving payments of less than $50,000 each);
(ii) creating any obligations of the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, Company or any of its Subsidiaries after the Base Balance Sheet Date which call for payments of more than $15,000 during any month for agreements without a fixed term or more than $50,000 over the term of the agreement or arrangement for agreements with a fixed term;
(iii) providing for the payment purchase of any bonus all or commission based on sales or earningssubstantially all of its requirements of a particular product from a supplier;
(biv) The Cotton Group Companies are which by its terms does not under terminate or is not terminable without premium or penalty by the Company or any liability of its Subsidiaries, as applicable (or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability their respective successors or assigns) upon notice of the Cotton Group Companies of $25,000 ninety (90) days or more in the aggregateless;
(cv) The Cotton Group Companies do for the sale or lease of its products not have (i) any outstanding loan or loan commitment (excluding credit extended made in the Ordinary Course ordinary course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreementbusiness;
(dvi) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in with any sales agent or distributor of products of the process of collection, the Cotton Group Companies do not have any power of attorney outstanding Company or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entityits Subsidiaries;
(evii) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of the Company or any Cotton Group Company of its Subsidiaries to compete in any line of business in or with any geographic area person or requiring any Cotton Group Company to share any profitsentity;
(gviii) There is no for a license or franchise (as licensor or licensee or franchisor or franchisee);
(ix) involving any arrangement or obligation with respect to the return of inventory or merchandise other than on account of a defect in condition, or failure to conform to the applicable contract, agreement ;
(x) with the United States government;
(xi) which contains covenants as to noncompetition or other arrangement entitling any person nonsolicitation restricting or other entity to any profits, revenues or cash flows for the benefit of any Cotton Group the Company or requiring any payments of its Subsidiaries; or other distributions based on such profits, revenues (excluding Contracts entered into in the ordinary course of business consistent with past practices) which contains covenants as to nondisclosure or cash flowsconfidentiality restricting or for the benefit of the Company or its Subsidiaries; andor
(hxii) To which is material to the assets or business of the Company or any of its Subsidiaries.
(b) Each of the contracts, commitments, plans, agreements and licenses to which the Company or any of its Subsidiaries is a party or to which the Company or any of its Subsidiaries is subject (whether written or oral), including those listed on Schedule 2.16(a) (each a “Contract”) is valid, binding and enforceable against the Company and its Subsidiaries, as applicable, and, to the Knowledge of the Cotton Group Companies Company, against the other parties thereto; the Company and its Subsidiaries, as applicable, is in material compliance with all terms and conditions of each Contract; and neither the Company nor any of its Subsidiaries has given or received notice of any alleged violation of or default under any such Contract.
(c) Except as set forth on Schedule 2.16(c), since January 1, 2007, neither the Company nor any of its Subsidiaries have experienced any termination, cancellation, limitation or modification or material and adverse change in any business relationship with any material supplier or material customer, nor has the Company or any Sellerof its Subsidiaries received notice or otherwise have Knowledge that any material customer or material supplier intends to cease, no Cotton Group or materially reduce or change the terms of, doing business with the Company is a party or any of its Subsidiaries or to terminate any agreement with the Company or bound by any presently of its Subsidiaries, where any such action, individually or previously existing contractin the aggregate, agreement or other arrangement that has had or may in the future would have a Material Adverse Effect upon Effect. Schedule 2.16(c) lists every material customer or supplier of the Cotton Group BusinessCompany and each of its Subsidiaries and the amount of business with that customer. For purposes hereof, earnings (i) a supplier is material if during fiscal 2005, 2006 or financial condition 2007, it accounted for more than five percent (5%) by value of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser truethe orders of the Company and its Subsidiaries, correct and complete copies taken as a whole, for purchase of all contractstheir raw materials and other products essential to their manufacturing processes for such year, agreementsand (ii) a customer is material if it accounted for more than three percent (3%) by value of the orders of the Company and its Subsidiaries, planstaken as a whole, leasesin either fiscal 2005, policies 2006 or 2007.
(d) All of the Company’s sales and licenses referred topurchase commitments were made in the ordinary course of business, or required to be referred to or listed on, any Schedule delivered hereunderconsistent with past practices.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as set forth on SCHEDULES 4.10(D) the attached Dade Contracts Schedule ----------------------- (Leaseswhich Dade Contracts Schedule indicates the parties thereto), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----neither Dade nor ----------------------- any of the other Dade Entities is a party to any oral or written:
(ai) The Cotton Group Companies do not have plan or other Contract providing for bonuses, pensions, options, stock purchases, deferred compensation, retirement payments, profit sharing, collective bargaining or the like, or any outstanding contract, written Contract with any labor union involving in any such case in excess of $414,000;
(ii) management agreement or oral, with other Contract for the employment of any officer, employeepartner, agentindividual employee or other person on a full-time, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, part- time or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty consulting basis or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus cash or commission based other compensation or benefits upon the sale of the Dade Business or a change of control (whether upon the occurrence of any additional events or conditions or otherwise) involving in any such case in excess of $414,000 or otherwise prohibiting competition;
(iii) Contract relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on sales any of the Dade Assets, other than Dade Permitted Liens;
(iv) Contract with respect to the lending or earningsinvesting of funds involving more than $517,000;
(v) license or royalty agreement involving more than $517,000;
(vi) guaranty, suretyship, letter of comfort or similar undertaking involving more than $517,000 of any obligation for borrowed money or that otherwise relates to the Dade Assets, other than endorsements made for collection;
(vii) Contract or group of related Contracts with the same party for the purchase or sale of commodities, supplies, products or other personal property or for the furnishing or receipt of services having a selling price in excess of $1,034,000;
(viii) Contract that would impose any significant restrictions upon the ability of any Dade Entity or Acquired Entity from freely engaging in the Dade Business anywhere in the world;
(ix) Contract relating to the manufacturing, distribution, marketing, advertising or promotion of products or services (whether by the Dade Business or for the Dade Business) involving in any such case more than $1,034,000;
(x) Contract relating to the acquisition or sale of a business (or any portion thereof) having a fair market value in excess of $517,000;
(xi) other Contract or group of related Contracts with the same party involving a potential liability to any party thereto of more than $1,034,000;
(xii) other Contracts material to the Dade Business, whether or not entered into in the ordinary course of business, the absence of which would reasonably be likely to have an adverse effect involving more than $1,034,000.
(b) The Cotton Group Companies are Except as specifically disclosed in the attached Dade ---- Contracts Schedule or as would not reasonably involve liabilities or obligations ------------------ in excess of $1,034,000, (i) no Contract required to be disclosed on the Dade ---- Contracts Schedule has been (or, by giving effect to the Closing, will be) ------------------ breached in any respect or has been (or, to Dade's Knowledge, after giving effect to the Closing, will be) canceled by the other party thereto, and since the date of the Dade Latest Balance Sheet, none of the significant customers, suppliers, outside service providers or sources of referral of the Dade Business has notified Dade or any of the other Dade Entities in writing that it will stop or decrease the rate of business done with or referred to the Dade Business, and (ii) Dade and the other Dade Entities have performed all of their obligations under the Contracts required to be listed on the Dade Contracts Schedule and, to ----------------------- Dade's Knowledge, there is no breach of or default by any other party under any liability or obligation under any agreement pursuant Contract to which third parties have been provided with products that can be returned any of them is a party or any event which, upon giving of notice or lapse of time or both, or upon and after giving effect to the Cotton Group Companies in transactions contemplated by the event they are not sold and which could involve Combination Documents, would constitute such a liability of the Cotton Group Companies of $25,000 breach or more in the aggregate;default.
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in A true and correct copy of all Contracts which are referred to on the Ordinary Course of Business to purchasers of job materials) to any personattached Dade Contracts Schedule, or (ii) any factoringtogether with all amendments, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection----------------------- exhibits, the Cotton Group Companies do not have any power of attorney outstanding or any contractattachments, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization waivers or other entity;
(e) There are no contracts or agreements with any directorchanges thereto, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have been made available to Purchaser trueHoechst (or, correct and complete copies in the case of all contractsany oral Contract or Contract withheld due to confidentiality requirements, agreements, plans, leases, policies and licenses referred to, or required a summary of the material terms of such Contract has been supplied to be referred to or listed on, any Schedule delivered hereunderHoechst).
Appears in 1 contract
Sources: Agreement and Plan of Combination (Dade International Inc)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (i) Except as set forth on SCHEDULES 4.10(D) (LeasesSchedule ------------------------- 3.01(q), 4.11 ----------------- ---- neither the Company nor any of its Subsidiaries nor the Predecessor Company (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned immediately prior to the Cotton Group Companies in the event they are not sold and which could involve a liability consummation of the Cotton Group Companies of $25,000 or more in the aggregate;
(cReorganization) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently written or previously existing oral:
(A) collective bargaining agreement or any other contract with any labor union, or any severance agreements, programs, policies or arrangements;
(B) management agreement, 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 contract providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or any contract relating to loans to any officers, directors or Affiliates of the Company or any of the Subsidiaries;
(C) contract or agreement requiring the consent of any party thereto upon a change in control of the Company, containing any provision which would result in a modification of any rights or obligations of any party thereunder upon a change in control of the Company or which would provide any party any remedy (including rescission or liquidated damages) in the event of a change in control of the Company, except for any such contracts or agreements involving less than $50,000 in any twelve-month period;
(D) contract under which it has advanced or loaned monies to any other Person or otherwise agreed to advance, loan or invest any funds (other than advances to the Company's employees in the ordinary course of business consistent with past practice), in each case in excess of $50,000;
(E) agreement or indenture relating to Indebtedness over $50,000 or the mortgaging, pledging or otherwise placing of a Lien on any asset or group of assets of the Company or any of its Subsidiaries worth over $50,000;
(F) lease or agreement under which the Company or any Subsidiary is lessee of, or holds or operates, any property, real or personal, owned by any other Person, except for any lease of personal property under which the aggregate annual rental payments do not exceed $50,000 in any twelve-month period;
(G) lease or agreement under which the Company or any Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company, except for any lease of personal property under which the aggregate annual rental payments received by the Company and its Subsidiaries do not exceed $50,000 in any twelve- month period;
(H) license or royalty agreement;
(I) third-party integration or consulting contract involving annual consideration in excess of $50,000;
(J) nondisclosure, noncompete or confidentiality agreement or agreement regarding ownership and rights with regard to software and documents related thereto produced by programmers or third-party contractors;
(K) contract or group of related contracts with the same party or group of affiliated parties for the purchase of raw materials, commodities, supplies, products, equipment or other personal property or for the receipt of services under which the undelivered balance of such products and services has a selling price in excess of $50,000 in any twelve-month period, including the Supply Agreement;
(L) contract or group of related contracts with the same party or group of affiliated parties for the sale of raw materials, commodities, supplies, products or other personal property or for the furnishing of services under which the undelivered balance of such products and services has a selling price in excess of $50,000 in any twelve-month period;
(M) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof involving more than $50,000 in any twelve-month period not terminable by the Company or any Subsidiary upon 30 days' or less notice without penalty or;
(N) contract or group of related contracts involving more than $50,000 in any twelve-month period requiring the payment of any fee, penalty or other amount by the Company or any Subsidiary in the event of any failure to perform or late performance of such contract or contracts by the Company or any Subsidiary;
(O) contract relating to the marketing, sale, advertising or promotion of its products or services involving more than $50,000 in any twelve-month period;
(P) warranty agreement with respect to products sold or leased or services rendered or indemnity agreement with any supplier or other Person under which it is obligated to indemnify such supplier or other Person against product liability claims;
(Q) agreements relating to the ownership of or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(R) assignment, license, indemnification or other agreement with respect to any intangible property (including any Intellectual Property Rights);
(S) agreement under which it has granted any Person any registration rights with respect to the Company's securities (including demand or piggyback registration rights);
(T) material broker, agent, sales representative, sales or distribution agreement or agreement relating to the export and/or import of any goods or equipment;
(U) power of attorney or other similar agreement or grant of agency;
(V) agreement restricting the payment of dividends or other distributions upon, or the conversion or repurchase of, the Preferred Stock; and
(W) other agreement which is material to the business, results of operations, condition (financial or otherwise), prospects or operations of the Company or its Subsidiaries.
(ii) All of the contracts, agreements and instruments set forth or required to be set forth on Schedule 3.01(q) are valid, binding and enforceable against the Company or the applicable Subsidiary and, to the knowledge of the Company, against the other parties thereto, in accordance with their respective terms and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated by this Agreement, the Ancillary Agreements, the High Yield Financing, the Senior Credit Facility and the Reorganization, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and limitations on the availability of equitable remedies. The Company and its Subsidiaries and the Predecessor Company have performed all obligations required to be performed by them in all material respects and they are not in default under, or in breach of, in any material respect, nor in receipt of any claim of any material default or breach under, any such contract, agreement or other arrangement that instrument. To the knowledge of the Company, no event has had occurred which with the passage of time or may the giving of notice or both would result in a default, breach or event of noncompliance by the future have a Material Adverse Effect upon Company or any Subsidiary under any such contract, agreement or instrument. Neither the Cotton Group Business, earnings or financial condition Company nor any Subsidiary has knowledge of any Cotton Group breach or cancellation or anticipated breach or cancellation by the other parties to any material contract, agreement, instrument or commitment to which the Company or such Subsidiary is a party. Each of the tower sale and leaseback agreements of the Company is identical in all material respects to the form of tower sale and leaseback agreement previously provided to Blackstone.
(iii) Schedule 3.01(q) sets forth all agreements between the Company, its Subsidiaries or any of its Affiliates, on the one hand, and Sprint and any of its Affiliates, on the other hand, including the Sprint Management Agreement, the Sprint Services Agreement, the Sprint Spectrum Trademark and Service ▇▇▇▇ License Agreement and the Sprint Trademark and Service ▇▇▇▇ License Agreement (collectively, the "Sprint Agreements"). The Cotton Group Companies Sprint Agreements are valid, ----------------- binding and enforceable against the Company or its Subsidiaries and Sprint PCS, in accordance with their respective terms and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated by this Agreement, the Ancillary Agreements, the High Yield Financing, the Senior Credit Facility and the Reorganization, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and limitations on the availability of equitable remedies. The Company and its Subsidiaries have made available performed all obligations required to Purchaser truebe performed by them in any material respect and they are not in default under or in breach of, in any material respect, nor in receipt of any claim of default or breach under, any of the Sprint Agreements. To the knowledge of the Company, no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company or any Subsidiary under any of the Sprint Agreements. Neither the Company nor any Subsidiary has knowledge of any breach or cancellation or anticipated breach or cancellation by Sprint or any of its Affiliates of any of the Sprint Agreements.
(iv) Blackstone has been supplied with a true and correct and complete copies copy of all contracts, agreementseach of the written instruments, plans, leasescontracts and agreements, policies including the Sprint Agreements and licenses referred tothe Supply Agreement (other than the tower sale and leaseback agreements of the Company or any Subsidiary), or required to be and an accurate description of each of the oral arrangements, oral contracts and oral agreements which are referred to on the Schedule 3.01(q), together with all amendments, waivers or listed on, any Schedule delivered hereunderother changes thereto.
Appears in 1 contract
Sources: Investment Agreement (Ipcs Inc)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do Except as disclosed in SCHEDULE 3.13(A) of the Company Disclosure Schedules, neither the Company nor any Subsidiary is a party or bound to any (collectively, the "Material Contracts"):
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement, or other form of deferred compensation plan;
(iii) hospitalization insurance or similar plan or practice, whether formal or informal;
(iv) contract for the employment of any officer, individual employee, or other person on a full-time or consulting basis or relative to severance pay for any such person;
(v) agreement or indenture relating to the borrowing of money in excess of $10,000 or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(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 permits any third party to hold or operate, any property, real or personal, for an annual rental in excess of $10,000;
(viii) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $10,000;
(ix) 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;
(x) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, either not have terminable by it on 30 days' or less notice without penalty or involving more than $10,000;
(xi) contract which prohibits the Company or any outstanding Subsidiary from freely engaging in business anywhere in the world;
(xii) contract relating to the distribution of the Company's or any Subsidiary's products;
(xiii) franchise agreement;
(xiv) contract, written agreement or oral, understanding with any shareholder who beneficially owns five percent (5%) or more of the Company Common Stock or with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, director or broker that is not cancelable by the Cotton Group Companies employee (other than for employment on notice of not longer than thirty customary terms);
(30xv) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any license agreement or arrangement agreement providing for the payment or receipt of royalties or other compensation by the Company or any bonus Subsidiary in connection with the proprietary rights as disclosed on SCHEDULE 3.14 of the Company Disclosure Schedules; or
(xvi) other agreement material to the Company's or commission based on sales any Subsidiary's business or earnings;not entered into in the ordinary course of business.
(b) The Cotton Group Companies Except as specifically disclosed on SCHEDULE 3.13(B) of the Company Disclosure Schedules, (i) no contract or commitment required to be disclosed under such caption has been breached or canceled by the other party; (ii) since the date of the balance sheet included in the Company's Interim Financial Statements, no customer or supplier has indicated that it will stop or decrease the rate of business done with the Company or any Subsidiary, except for changes in the ordinary course of the Company's and the Subsidiaries' businesses; (iii) the Company and the Subsidiaries have performed all obligations required to be performed by them in connection with the contracts or commitments required to be disclosed under such caption and are not in receipt of any claim of default under any liability contract or commitment required to be disclosed under such caption; (iv) neither the Company nor any Subsidiary has any present expectation or intention of not fully performing any obligation under any agreement pursuant to which third parties have been provided with products that can be returned any contract or commitment or commitment set forth under such caption; and (v) neither the Company nor any Subsidiary has any knowledge of any breach or anticipated breach by any other party to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 any contract or more in the aggregate;commitment set forth under such caption.
(c) The Cotton Group Companies do not have (i) any outstanding loan Prior to the date of this Agreement, Parent has been supplied with a true and correct copy of each written contract or loan commitment (excluding credit extended in the Ordinary Course commitment, and a written description of Business to purchasers of job materials) to any personeach oral contract or commitment, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted disclosed on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect 3.13 of the contract or commitment of any other personCompany Disclosure Schedules, corporationtogether with all amendments, partnership, joint venture, association, organization waivers or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderchanges thereto.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have Except for this Agreement or as described in the schedules to this Agreement, no Seller is a party to nor are the Assets bound by or subject to any outstanding contractof the following agreements: (i) collective bargaining agreements or contracts with any labor union; (ii) bonus, written pension, profit sharing, retirement or oralother forms of deferred compensation plans, with other than as those described in Section 4.15 and the schedules contemplated by Section 4.15; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal other than as described in Section 4.15 and the schedules contemplated by Section 4.15; (iv) contract for the employment of any officer, employee, agentcontractor or other Person on a full-time or consulting basis or relating to severance pay for any such Person (other than contracts with employees that provide for "at will" employment and do not provide for severance or change of control payments); (v) confidentiality agreement; (vi) agreement or indenture relating to the borrowing of money or placing a Lien on any of the Assets; (vii) guaranty of any obligation for borrowed money or otherwise; (viii) lease or agreement under which it is lessee of, consultantor holds or operates any property, advisorreal or personal, salesmanowned by any other party relating to the Business, manufacturer's other than as described on Schedules C-1 and C-2 or Schedule D; (ix) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal relating to the Business extending for a period of time longer than 3 months or involving expenditures by Sellers in the aggregate in excess of $50,000; (x) contract or group of related contracts for the purchase, licensing or sale of products or services (whether as licensor, licensee, buyer or seller); (xi) contract which prohibits it from freely engaging in business anywhere in the world; (xii) contract for the distribution of any of the Products (as hereinafter defined) of the Business (including any distributor, master distributor, sales representative, distributoragency, dealervalue-added resellers, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty sales and original equipment manufacturer contract); (30xiii) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any franchise agreement; (xiv) license agreement or arrangement agreement providing for the payment or receipt of royalties or other compensation by or to Sellers, including any bonus contract related to Licensed-In Intellectual Property Rights or commission based on sales or earnings;
Owned Intellectual Property Rights; (bxv) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment for capital expenditures with respect to the Business after the date of this Agreement; (xvi) agreement for the sale of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flowscapital asset; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunder.or
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as set forth on SCHEDULES 4.10(D) (Leases)in the Contracts Schedule, 4.11 ----------------- ---- (Indebtedness)SCHEDULE 3.10, 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have neither the Company nor either of the FBOs is a party to any outstanding contractcontract or agreement, written or oral:
(i) for a bonus, pension, profit sharing, retirement, deferred compensation, medical or life insurance plan, membership purchase or option or any other plans or arrangements providing for benefits of any type to employees (either current or former) of any of the Company or either FBO;
(ii) for collective bargaining or with any officerlabor union;
(iii) for the borrowing of money or mortgaging, employeepledging or encumbering any of the Company's or the FBOs' respective assets;
(iv) for the lending or investing of funds to or in other persons or entities;
(v) granting any power of attorney (irrevocable or otherwise) to any person for any purpose relating to the respective Businesses or the Company's or the FBOs' respective assets, agentother than powers of attorney given to regulatory authorities in connection with routine qualifications to do business; or
(vi) with an Affiliate of any of Sellers, consultantthe Company or the FBOs (other than the Company's and the FBOs' Charter Documents).
(b) The Contracts Schedule lists each of the Material Contracts. For purposes of this Agreement, advisor"MATERIAL CONTRACTS" includes the following:
(i) any and all contracts for the sale of goods or services by the Company or either of the FBOs with a value in excess of $25,000 individually or $100,000 in the aggregate, salesmanor which is not terminable without penalty by or on behalf of the Company or the FBOs on less than 90 days' notice;
(ii) any and all contracts, manufactureragreements, licenses, leases (other than the Leases), sales and purchase orders and other legally binding commitments that obligate the Company or either of the FBOs to pay, assume, guaranty or secure an amount of $25,000 or more individually or $100,000 or more in the aggregate or that cannot be terminated without penalty by or on behalf of the Company or the FBOs on less than 90 days' notice;
(iii) any and all contracts between the Company or either of the FBOs on the one hand and any Affiliate of the Company or either FBO on the other hand (other than the Company's representativeand the FBOs' Charter Documents);
(iv) any and all broker, distributor, dealer, subcontractor, representative or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earningsagency agreements;
(bv) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability all insurance policies insuring either of the Cotton Group Companies Businesses, either of $25,000 the Facilities or more in any of the aggregateCompany's or FBOs' respective assets (collectively, the "INSURANCE POLICIES");
(c) The Cotton Group Companies do not have (ivi) any outstanding loan and all employment, non-competition or loan commitment (excluding credit extended consulting agreement that is currently in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreementeffect;
(dvii) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the each contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting purporting to materially limit the freedom of any Cotton Group the Company or the FBOs to compete in any line of business or in any geographic area or requiring any Cotton Group Company to share any profitsarea;
(gviii) There is no contractany factoring agreements;
(ix) each partnership, joint venture or other similar agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group which the Company or requiring any payments or other distributions based on such profits, revenues or cash flowseither FBO is a party; and
(hx) To any and all agreements requiring a loan, advance or guaranty of any Funded Indebtedness by the Knowledge Company or either of the Cotton Group Companies or any Seller, no Cotton Group Company is a party FBOs.
(c) Sellers have delivered to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct Buyer true and complete copies of all contractswritten Material Contracts, agreementstogether with all amendments and supplements thereto. A description of the principal terms and conditions of each oral Material Contract, plansif any, leasesis set forth on the Contracts Schedule. The Material Contracts are in full force and effect and are enforceable against the Company or the respective FBOs, policies as applicable, and licenses referred toto the best of Sellers' knowledge all other parties thereto. Except as set forth on the Contracts Schedule, (i) none of Sellers, the Company nor either FBO has received any notice that it is in default under, or required to be referred to or listed onnot in compliance with any material provision of, any Schedule Material Contract, (ii) none of Sellers, the Company nor either FBO has delivered hereunderany notice to another party alleging any default under, or failure to comply with any material provision of, any Material Contract, and (iii) with respect to the Material Contracts, no event has occurred that, with notice, the passage of time or both would constitute (A) a default by the Company or the FBOs, or (B) a failure of the Company or the FBOs to comply with a material provision of any of the Material Contracts, or (C) to the best of Sellers' knowledge, otherwise give any party a right of termination or modification thereof. Except as set forth on SCHEDULE 3.10(C), to the best of Seller's knowledge, the consummation of the transactions contemplated by this Agreement would not give any party to a Material Contract the right to terminate or cancel the terms of such Material Contract.
(d) Set forth on SCHEDULE 3.10(D) is a list of the twenty-five (25) largest customers of each FBO by gallons of fuel purchased in the 2003 calendar year. Other than the customers set forth on SCHEDULE 3.10(D), no other customer accounted for more than five percent (5%) of the gallons of fuel purchased by customers of either FBO in the 2003 calendar year. None of Sellers, the Company or either of the FBOs has received any notice from any of the customers listed on SCHEDULE 3.10
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Macquarie Infrastructure Assets LLC)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D4.10(d) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B4.12(d) AND (Db) (Intellectual Property), 4.15(A)(I4.15(a)(i) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunder.
Appears in 1 contract
Sources: Stock and Limited Partnership Interest Purchase Agreement (Charys Holding Co Inc)
Contracts and Commitments. SCHEDULE 4.23 sets (a) Except as expressly contemplated by this Agreement or as set forth a list on Schedule 5.11(a) of the ------------------------- ------------- Cotton Group Companies' Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with customers with an estimated value the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $50,000.00 150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or moreagreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on SCHEDULES 4.10(DSchedule 5.11(b) of the Disclosure Schedule, (Leases)i) the Company has performed, 4.11 ----------------- ---- (Indebtedness)in all material respects, 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), all obligations required to be performed by it and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Cotton Group Companies on notice Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not longer than thirty fully performing all such obligations; (30iv) days no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and without liability, penalty or premium (v) as of the date hereof the Company has no knowledge of any kindbreach or anticipated breach by the other parties to any Material Contracts, except liabilities lease, agreement, instrument or commitment to which arise as they are parties. The Company is not a matter party to any Material Contracts the performance of law upon termination of employmentwhich could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any agreement or arrangement providing for the payment terms of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies Material Contracts on the part of $25,000 or more in the aggregate;Company.
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course Buyer’s counsel has been supplied with a true and correct copy of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect each of the contract or commitment Material Contracts which are referred to on Schedule 5.11 of any other personthe Disclosure Schedule, corporationtogether with all amendments, partnership, joint venture, association, organization waivers or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderchanges thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Penn National Gaming Inc)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (1) Except as set forth on SCHEDULES 4.10(Dthe Contracts Schedule attached hereto, neither Seller nor any of the Subsidiaries is a party to any: (i) collective bargaining agreement or contract with any labor union; (Leases)ii) bonus, 4.11 ----------------- ---- pension, profit sharing, retirement or other form of deferred compensation plan; (Indebtedness), 4.12(Biii) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with contract for the employment of any officer, employeeindividual employee or other person on a full-time or consulting basis; (iv) agreement or indenture relating to the borrowing of money or to mortgaging, agent, consultant, advisor, salesman, manufacturerpledging or otherwise placing a lien on any material portion of such entity's representative, distributor, dealer, subcontractorassets; (v) guaranty of any obligation for borrowed money or other material guaranty; (vi) lease or agreement under which it is lessee of, or broker that holds or operates any personal property owned by any other party, for which the annual rental exceeds $50,000; (vii) lease or agreement under which it is not cancelable by lessor of or permits any third party to hold or operate any personal property for which the Cotton Group Companies on notice annual rental exceeds $50,000; (viii) contract or group of not longer than thirty related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products or services has a purchase price in excess of $100,000; (30ix) days and without liability, penalty contract or premium group of any kind, except liabilities related contracts with the same party for the sale of products or services under which arise as the undelivered balance of such products or services has a matter sales price in excess of law upon termination of employment, $100,000; or any agreement (x) contract or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officerequityholder or other Affiliate including arrangements governing the right to use assets used in the Business; (xi) confidentiality agreement restricting the Sellers or the Subsidiaries from disclosing any information (xii) confidentiality agreement with the Sellers or the Subsidiaries Known to Sellers restricting others from disclosing any information regarding the Sellers or the Subsidiaries; (xiii) non-compete agreement restricting the Sellers or the Subsidiaries from freely engaging in business anywhere in the world; (xiv) non-compete agreement with the Sellers or the Subsidiaries Known to Sellers restricting others from freely engaging in business in competition with the Sellers or the Subsidiaries anywhere in the world; (xv) power of attorney or agency agreement; (xvi) contract for contingent payments relating to acquisitions; or (xvii) other contract that remains material to the Sellers and Subsidiaries as of the date hereof.
(2) Except as set forth on the Contracts Schedule, partner neither Seller nor any of the Subsidiaries is in default (and no event which, with the passage of time or shareholder giving of any Cotton Group Companynotice, or with any person related to any such person or with any company or other organization in which any directorboth, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, would constitute a default has a direct or indirect financial interest;
(foccurred) The Cotton Group Companies are not subject to under any contract or agreement containing covenants limiting listed on the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contractContracts Schedule, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on except where such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future default would not have a Material Adverse Effect upon and none of the Cotton Group Business, earnings Sellers or financial condition the Subsidiaries has provided or received any written notice of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct default under the Loan and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderSecurity Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integra Lifesciences Corp)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list Except as disclosed on Schedule 3.22 of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----Disclosure Schedule:
(a) The Cotton Group Companies do Company is not have nor is any outstanding contract, written or oralSubsidiary, with respect to its business, a party to any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, oral or broker written contract:
(i) that prohibits the Company or any of its Subsidiaries from freely engaging or competing in its line of business anywhere in the world;
(ii) that is not cancelable on arms-length terms;
(iii) pursuant to which the Company or any of its Subsidiaries has incurred or accrued losses;
(iv) that by its terms may be terminated upon a change in control of the Company or any of its Subsidiaries;
(v) that commits the Company or any of its Subsidiaries to purchase or sell any properties or assets outside of the ordinary course of business for consideration in excess of $100,000;
(vi) that involves an unfulfilled obligation, individually or in the aggregate, in excess of $100,000 and is not terminable by the Cotton Group Companies on Company or any of its Subsidiaries upon less than 60 calendar days' notice for a cost of not longer less than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings$100,000;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability Since December 31, 1997, none of the Cotton Group Companies Company's or any of $25,000 its Subsidiaries' significant customers, suppliers, outside service providers or more in sources of referral has indicated that it will stop or materially decrease the aggregate;rate of business done with or referred to either the Company or any such Subsidiary.
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies Company, neither the Company nor any of its Subsidiaries is obligated to (i) purchase any property or services at a price greater than the prevailing market price, (ii) sell any Sellerproperty or services at a price less than the prevailing market price, no Cotton Group Company is (iii) pay rentals or royalties at a party rate greater than the prevailing market price or (iv) act as lessor or licensor at a rate less than the prevailing market price.
(d) Parent has been supplied with a true and correct copy of all written contracts which are referred to or bound by any presently or previously existing contracton Schedule 3.22, agreement together with all amendments, exhibits, attachments, waivers or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderchanges thereto.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 (a) Except as expressly contemplated by this Agreement or more. Except as set forth on SCHEDULES 4.10(D) (Leases)Schedule 4.15 attached hereto, 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that the Company is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently written or previously existing contractoral:
(i) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to its current or former directors, officers or employees or any other employee benefit plan, arrangement or practice, whether formal or informal;
(ii) collective bargaining agreement or any other arrangement that has had contract with any labor union, or may severance agreements, with employees at the executive management committee level since December 31, 2001, programs, policies or arrangements;
(iii) management agreement or contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis (A) providing annual cash or other compensation in excess of $250,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or (C) otherwise restricting its ability to terminate the employment of any employee at anytime for any lawful reason or for no reason without penalty or liability;
(iv) contract or agreement involving any Governmental Agency involving more than $200,000 other than in the future have ordinary course of business;
(v) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Material Adverse Effect Lien on any material asset or material group of assets of the Company or any letter of credit arrangements;
(vi) guarantee, other than endorsements made for collection in the ordinary course of business consistent with past custom and practice;
(vii) lease or agreement under which the Company is (A) lessee of or holds or operates any personal property, owned by any other party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $1,000,000 or (B) lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties for the purchase or sale of raw materials, commodities, supplies, products, equipment or other personal property or services under which the undelivered balance since the Most Recent Audited Balance Sheet Date of such products and services has a selling price in excess of $1,000,000;
(ix) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof, not terminable by the Company upon 30 days' or less notice without penalty or involving more than $1,000,000;
(x) contract relating to the Cotton Group Businessmarketing, earnings advertising or financial condition promotion of its products involving more than $1,000,000;
(xi) agreement under which it has granted any Cotton Group Company. Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xii) agreements relating to the ownership of, investments in or loans and advances to any Person, including investments in joint ventures and minority equity investments;
(xiii) license, royalty, indemnification or other agreement with respect to any intangible property (including any Intellectual Property), including any agreements that prohibit or limit the ability of the Company to use or disclose any Intellectual Property or to engage in any line of business, or to compete with any Person or to carry on its business or any other business anywhere in the world other than in the ordinary course of business;
(xiv) broker, agent, sales representative, sales or distribution agreement other than in the ordinary course of business;
(xv) power of attorney or other similar agreement or grant of agency;
(xvi) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world, including any nondisclosure or confidentiality agreements; or
(xvii) other agreement which involves a consideration in excess of $1,000,000 annually, other than in the ordinary course of business.
(b) The Cotton Group Companies have Company has delivered or made available to Purchaser true, Vista a correct and complete copies copy (as amended to date) of all contractseach contract, agreementsagreement, plansand instrument set forth on Schedule 4.15 (collectively, leasesthe "Material Contracts"). With respect to each Material Contract: (i) such Material Contract is legal, policies valid and licenses referred tobinding, enforceable against the Company in accordance with the terms (except to the extent required by Creditors Rights Laws), and in full force and effect; (ii) such Material Contract will continue to be legal, valid and binding, enforceable against the Company in accordance with the terms (except to the extent required by Creditors Rights Laws), and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (iii) to the Company's knowledge no party to such Material Contract is in breach or default of the terms thereof, and to the Company's knowledge no event has occurred which with notice or lapse of time would constitute a breach or default, or required permit termination, modification, or acceleration, under such Material Contract; and (iv) no party to such Material Contract has repudiated any provision thereof.
(c) Except as specifically set forth in Schedule 4.15(c), the Company is not a party to any contract, agreement, instrument or understanding that contains a "change in control," "potential change in control," or similar provision, in each case, that would be referred to or listed on, any Schedule delivered triggered by the transactions contemplated hereunder.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Aspect Communications Corp)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. (a) Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance PoliciesSchedule 3.09(a), and ---- ---- 4.23 (Contracts except for agreements entered into by any Group Company after the date hereof in accordance with Section 5.01, no Group Company is party to or otherwise bound by, and Commitments): ----none of the properties or assets of any Group Company are bound by:
(ai) The Cotton any Contract or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of the assets of the Group Companies do not have (other than Permitted Liens);
(ii) any outstanding contractContract relating to the voting of, written and any other rights or oralobligations of a holder of, with Company Units or any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium equity interests of any kind, except liabilities which arise as a matter Subsidiary of law the Company (other than the organizational documents of the Group Companies);
(iii) any guaranty of any obligation for borrowed money or other material guaranty;
(iv) any Contract that relates to any interest rate or foreign exchange rate swap or other hedging arrangements (including swap breakage or associated fees due upon termination of employmentsuch swap or hedging arrangements);
(v) any lease, rental, occupancy agreement or Contract under which it is lessee or otherwise holds a leasehold interest, or holds or operates any agreement property (whether real or arrangement providing personal property) owned by any other party, in each case, for which the annual rental exceeds $2,000,000 (excluding the Leases);
(vi) any Contract (excluding purchase or sale orders), for the purchase of products or services of the other party thereto that provides for annual payments by a Group Company in excess of $2,000,000 during the trailing twelve (12) month period ending on the date of the Latest Balance Sheet and cannot be cancelled by a Group Company without penalty or without more than sixty (60) days’ notice;
(vii) any Contract (excluding purchase or sale orders) for the purchase of products or services of a Group Company that provides for annual payments to a Group Company in excess of $2,000,000 during the trailing twelve (12) month period ending on the date of the Latest Balance Sheet;
(viii) any Contract that includes any in-license of and the use of any third party Intellectual Property Rights owned or controlled by such third party material to the conduct of the Company’s business (other than commercially available software or software service);
(ix) any Contract that includes any out-license of any Company Intellectual Property Rights that are material to the conduct of the Company’s business (other than non-exclusive licenses granted in the Ordinary Course of Business) to any third party;
(x) any Contract that (A) provides for the payment to or by any Group Company of royalties, milestones or other similar monetary consideration based on the commercialization of products, services or other technology, or (B) imposes any express requirement or obligation on any Group Company to manufacture, deliver, supply, or commercialize any such product, service or technology to a party to such Contract on an exclusive basis;
(xi) any Contract that (A) contains a covenant or provision prohibiting or restricting, or purporting to prohibit or restrict any Group Company from entering into, engaging in or competing in any line of business or with any Person or conducting business or activities in any territory (including granting exclusive rights or rights of first refusal to license, market, sell or deliver any of the products or services offered by a Group Company or any related Intellectual Property Rights), in each case, other than any donor egg bank contributing agreement or donor egg bank network participating agreement entered into in the Ordinary Course of Business, (B) prohibiting any Group Company from acquiring any product or other asset or services from any other Person or (C) prohibiting any Group Company from developing or distributing any Intellectual Property Rights;
(xii) any Contract containing any “most-favored nation” provision or minimum purchase requirements;
(xiii) any Contract that is a partnership, joint venture or similar agreement involving a share of profits, losses, costs, or liabilities with any other Person;
(xiv) any Contract with any Governmental Entity;
(xv) any Contract entered into since August 6, 2018 that relates to the acquisition or disposition of any bonus business or commission based on sales the stock of any other Person (whether by merger, sale of stock, sale of assets or earningsotherwise) by any member of the Group Companies with a purchase price in excess of $5,000,000;
(xvi) any Contract providing for capital expenditures after the date of this Agreement in an amount in excess of $500,000 individually;
(xvii) any collective bargaining agreement or other Contract with a labor union or organization;
(xviii) any written warranty extended by any member of the Group Companies other than in the Ordinary Course of Business;
(xix) any Contract involving the settlement of any Action or threatened Action which provides payments after the date of this Agreement in excess of $250,000 individually; or
(xx) any Contract for employment or with any independent contractor, consultant or other service provider who is a natural Person, in each case, (A) providing for an annual base salary or pay in excess of $200,000 or (B) providing for change in control, transaction, retention, severance or similar payments.
(b) The Cotton Group Companies Parent either has been supplied with, or has been given access to, a true and correct copy of all written Contracts, including all amendments, modifications and supplements thereto, that are not under any liability or obligation under any agreement pursuant referred to which third parties have been provided with products that can be returned to on Schedule 3.09(a) (collectively, the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;“Material Contracts”).
(c) The Cotton Group Companies do not have Except as set forth in Schedule 3.09(c), each Material Contract (i) any outstanding loan or loan commitment (excluding credit extended is in full force and effect and constitutes the Ordinary Course legal, valid and binding obligation of Business the member of the Group Companies party thereto and, to purchasers the knowledge of job materials) to any personthe Company, or each other party thereto and (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in is enforceable against such member of the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contractand, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect to the knowledge of the contract Company, each other party thereto in accordance with its terms in each case subject to the Enforceability Exceptions. No Group Company has, in any material respect, violated or commitment breached, or committed any default under, any Material Contract and, to the knowledge of the Company, no other Person party thereto has materially violated or breached, or committed any material default under, any Material Contract. No event has occurred and is continuing through any Group Company’s actions or inactions that, with the lapse of time or the giving of notice or both, would result in a material violation or breach of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of the provisions of any Cotton Group Material Contract. No party to any Material Contract has given any written notice of, and to the knowledge of the Company, there has been no written threat of, termination or cancellation of any Material Contract. No member of the Group Companies has received written notice of, and to the knowledge of the Company, there has been no written threat of, any significant dispute with any person related respect to any such person or with Material Contract, in each case, that would have a material and adverse impact on any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton businesses of the Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderCompanies.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cooper Companies, Inc.)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have Neither the Company nor any outstanding contractof its Subsidiaries is a party to, written or oralis bound by, any Contract:
(i) providing for aggregate future noncontingent payments by or to the Company or any of its Subsidiaries in excess of $500,000 in any fiscal year, other than Contracts with any officer, an employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, consultant or broker independent contractor relating to employment or the provision of services or Contracts that is not cancelable by are terminable upon 90 days or fewer notice or that expire pursuant to their terms no later than 120 days after the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earningsdate hereof;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group the Company to compete engage in any line of business or sell, supply or distribute any service or product (including with respect to the pricing thereof), or to compete with any entity or to conduct business in any geographic area geography, or requiring that grants any Cotton Group exclusive rights to any party (other than any (x) non-exclusive licenses entered into in the ordinary course of business, (y) Contracts for which noncontingent payments by or to the Company or any of its Subsidiaries do not exceed $500,000 in any fiscal year or (z) Contracts that are terminable upon 90 days or fewer notice or that expire pursuant to share any profitstheir terms no later than 120 days after the date hereof) where such limitations or restrictions would have a Material Adverse Effect;
(giii) There involving any joint venture, partnership or similar arrangement that is no contractmaterial to the Company and its Subsidiaries, agreement taken as a whole;
(iv) pursuant to which the Company or any Subsidiary incurs, assumes or guarantees any Indebtedness for borrowed money in excess of $500,000;
(v) containing severance or termination pay Liabilities related to termination of employment in excess of $200,000 (individually to any employee);
(vi) providing for the supply, manufacturing, distribution or development of Company Products (where the remaining aggregate noncontingent payments to or by the Company are in excess of $500,000);
(vii) providing for the acquisition, transfer, in-bound licensing, out-bound licensing, development, co-development, or sharing of any material Intellectual Property or Software or materially affecting the ability of the Company or any of its Subsidiaries to use or disclose any Intellectual Property or Software (other than license agreements providing for for commercially available software on standard terms and non-exclusive distribution, reseller and end-user customer and other non-exclusive agreements entered into in the ordinary course of business);
(viii) that prohibits the payment of dividends or distributions in respect of the share capital of the Company or any of its Subsidiaries, prohibits the pledging of the share capital of the Company or any of its Subsidiaries or prohibits the issuance of guarantees by any of its Subsidiaries;
(ix) that is a Collective Bargaining Agreement;
(x) that provided for any acquisition of another entity by the Company or its Subsidiaries pursuant to which the Company or any of its Subsidiaries has continuing indemnification, "earn out" or other arrangement entitling contingent payment or guarantee obligations; or
(xi) that contains any person material covenant granting "most favored nation" status that, following the Merger, would apply to or be affected by actions taken by Parent, the Surviving Company and/or their respective Subsidiaries or Affiliates. Each Contract of the type described in the immediately preceding sentence, together with each of the Leased Real Property Subleases and Leases set forth on Section 3.11(d) of the Company Disclosure Letter, is collectively referred to herein as a "Company Material Contract." The Company has heretofore made available to Parent a complete and correct copy of each Company Material Contract, including any amendments or modifications thereto.
(b) Each Company Material Contract is binding on the Company or its Subsidiary party thereto and, to the Knowledge of the Company, each other entity party thereto, and is in full force and effect, and, to any profitsthe Knowledge of the Company, revenues or cash flows enforceable against each other party thereto (in each case, subject to the Bankruptcy and Equity Exception), and the Company and each of its Subsidiaries have performed all obligations required to be performed by them under each Company Material Contract and, to the Knowledge of the Company, each other party to each Company Material Contract has performed all obligations required to be performed by it under such Company Material Contract, in each case except as would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, the Company has not received during the last twelve (12) months, notice of any Cotton Group violation or default under (or any condition that with the passage of time or the giving of notice, or both, would cause such a violation of or default under) any Company Material Contract, except for violations or requiring any payments defaults that would not have or other distributions based on such profits, revenues or cash flows; andreasonably be expected to have a Company Material Adverse Effect.
(hc) To the Knowledge of the Cotton Group Companies or any SellerCompany, as of the date hereof, no Cotton Group event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time), would reasonably be expected to: (i) result in a material violation or breach of any provision of any Company is Material Contract, (ii) give any Person the right to declare a party default under any Company Material Contract, or (iii) give any Person the right to cancel terminate or bound by modify any presently Company Material Contract, in each case, as would not have or previously existing contract, agreement or other arrangement that has had or may in the future would reasonably be expected to have a Company Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderEffect.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do Except as disclosed in Schedule 3.13(a) of the Company Disclosure Schedules, the Company is not have a party or bound to any outstanding of the following contracts or agreements (collectively, the "Material Contracts"):
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement, or other form of deferred compensation plan;
(iii) hospitalization insurance or similar plan or practice, whether formal or informal;
(iv) contract for the employment of any officer, individual employee, or other person on a full-time or consulting basis or relative to severance pay for any such person;
(v) agreement or indenture relating to the borrowing of money in excess of $10,000 or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(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 permits any third party to hold or operate, any property, real or personal, for an annual rental in excess of $10,000;
(viii) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $10,000;
(ix) 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;
(x) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, either not terminable by it on 30 days' or less notice without penalty or involving more than $10,000;
(xi) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xii) contract relating to the distribution of the Company's products;
(xiii) franchise agreement;
(xiv) contract, written agreement or oral, understanding with any shareholder who beneficially owns five percent (5%) or more of the Company Common Stock or with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, director or broker that is not cancelable by the Cotton Group Companies employee (other than for employment on notice of not longer than thirty customary terms);
(30xv) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any license agreement or arrangement agreement providing for the payment or receipt of any bonus royalties or commission based other compensation by the Company in connection with the proprietary rights as disclosed on sales Schedule 3.14 of the Company Disclosure Schedules; or
(xvi) other agreement material to the Company's business or earnings;not entered into in the ordinary course of business.
(b) The Cotton Group Companies are Except as specifically disclosed on Schedule 3.13(b) of the Company Disclosure Schedules, (i) no contract or commitment required to be disclosed under such caption has been breached or canceled by the other party; (ii) since the date of the balance sheet included in the Company's Interim Financial Statements, no customer or supplier has indicated that it will stop or decrease the rate of business done with the Company, except for changes in the ordinary course of the Company's businesses; (iii) the Company has performed all obligations required to be performed by it in connection with the contracts or commitments required to be disclosed under such caption and is not in receipt of any claim of default under any liability contract or commitment required to be disclosed under such caption; (iv) the Company does not have any present expectation or intention of not fully performing any obligation under any agreement pursuant to which third parties any contract or commitment or commitment set forth under such caption; and (v) the Company does not have been provided with products that can be returned any knowledge of any breach or anticipated breach by any other party to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 any contract or more in the aggregate;commitment set forth under such caption.
(c) The Cotton Group Companies do not have (i) any outstanding loan Prior to the date of this Agreement, Parent has been supplied with a true and correct copy of each written contract or loan commitment (excluding credit extended in the Ordinary Course commitment, and a written description of Business to purchasers of job materials) to any personeach oral contract or commitment, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted disclosed on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect Schedule 3.13 of the contract or commitment of any other personCompany Disclosure Schedules, corporationtogether with all amendments, partnership, joint venture, association, organization waivers or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderchanges thereto.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. a. Except as set forth on SCHEDULES 4.10(Dunder the caption "Contracts" in the Disclosure Letter, Antigua is not a party to any (i) collective bargaining agreement or contract with any labor union, (Leases)ii) bonus, 4.11 ----------------- ---- pension, profit sharing, retirement, or other form of deferred compensation plan, (Indebtedness)iii) hospitalization insurance or similar plan or practice, 4.12(Bwhether formal or informal, (iv) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with contract for the employment of any officer, individual employee, agentor other person on a full-time or consulting basis or 16 relative to severance pay for any such person, consultant(v) agreement or indenture relating to the borrowing of money in excess of $10,000 or to mortgaging, advisorpledging or otherwise placing a lien on any of the assets of Antigua, salesman(vi) guaranty of any obligation for borrowed money or otherwise, manufacturer's representativeother than endorsements made for collection, distributor, dealer, subcontractor(vii) lease or agreement under which it is lessor of, or broker that is not cancelable permits any third party to hold or operate, any property, real or personal, with aggregate remaining rental payments in excess of $10,000, (viii) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $25,000, (ix) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $25,000, (x) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, other than contracts terminable by the Cotton Group Companies it on thirty days' or less notice of not longer than thirty (30) days and without liability, penalty or premium of any kindinvolving less than $25,000, except liabilities (xi) contract which arise as a matter of law upon termination of employmentprohibits Antigua from freely engaging in business anywhere in the world, (xii) sales representative or distribution agreement, or any other contract relating to the sale or distribution of Antigua's products, (xiii) contract, agreement or arrangement understanding with any Insider, (xiv) license agreement or other agreement providing for the payment or receipt of any bonus royalties or commission based on sales other compensation by or earnings;
to Antigua, or (bxv) The Cotton Group Companies are other agreement material to Antigua's business or not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies entered into in the event they are not sold and which could involve a liability ordinary course of business. 17
b. Except as specifically disclosed under the Cotton Group Companies of $25,000 or more caption "Contracts" in the aggregate;
(c) The Cotton Group Companies do not have Disclosure Letter, (i) any outstanding loan to the knowledge of the Shareholders, no contract or loan commitment (excluding credit extended in required to be disclosed under such caption has been breached or canceled by the Ordinary Course of Business to purchasers of job materials) to any personother party, or (ii) any factoringsince December 31, credit line 1996, no customer or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and supplier has notified Antigua that it will stop or materially decrease the rate of business done with Antigua, except for ------------- negotiable instruments changes in the process ordinary course of collectionAntigua's business, (iii) Antigua has performed in all material respects all obligations required to be performed by it in connection with the Cotton Group Companies do contracts or commitments required to be disclosed under such caption and is not have in receipt of any power written claim of attorney outstanding or default under any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment required to be disclosed under such caption, and (iv) Antigua has no present expectation or intention of not fully performing any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject obligation pursuant to any contract or agreement containing covenants limiting commitment set forth under such caption.
c. Prior to the freedom date of any Cotton Group Company this Agreement, SEC has been supplied with a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, referred to compete under the caption "Contracts" in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contractthe Disclosure Letter, agreement together with all amendments, waivers or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderchanges thereto.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets Except as set forth on Schedules 1.7 or 5.16 to the Disclosure Schedule, the Company is not a list party to, or bound or affected by any contract, lease, agreement, covenant, license, instrument or commitment (whether written or oral) of any type, including the following:
(a) contracts for the employment or compensation of any officer or individual employee, not terminable without further liability at any time:
(b) contracts with any labor union;
(c) continuing contracts for the future purchase of materials, supplies or equipment, at a cost of $10,000 or more, or to be delivered more than ninety (90) days after the date hereof;
(d) continuing contracts for the future provision of its services;
(e) distribution or agency contracts, franchise contracts, or advertising commitments, which cannot be terminated without further liability to the Company upon no more than thirty (30) days' notice;
(f) pension, profit sharing, deferred compensation, retirement or stock option or stock purchase plans in effect with respect to officers, employees or others;
(g) leases under which it is lessor or lessee;
(h) underwriting agreements or agreements with a broker or finder;
(i) consulting agreements;
(j) contracts for the acquisition of a business, or substantially all of the ------------------------- ------------- Cotton Group Companiesproperty, assets, or stock of a business under which there are any continuing or unperformed obligations on the part of any of the parties thereto; or
(k) Any other contract, agreement, or commitment involving $10,000 or more or which is not terminable without further liability to the Company upon no more than thirty (30) days' contracts with customers with an estimated value notice. There have been delivered to Buyer true and correct copies of $50,000.00 or moreeach of the Contracts listed in the Disclosure Schedule. Except as set forth on SCHEDULES 4.10(D) (Leases)Schedule 5.16 to the Disclosure Schedule, 4.11 ----------------- ---- (Indebtedness)all of the Contracts listed on Schedule 5.16 are valid, 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), binding and ---- ---- 4.23 (in full force and effect and are enforceable in accordance with their terms against all other parties to such Contracts and Commitments): ----
are assignable to Buyer; provided, however, neither the Company nor the Member makes any representation or warranty with respect to whether any or all Medicare licenses or provider numbers or approvals can be assumed by Buyer or Renex. Buyer and Renex shall be responsible for seeking any such assignments or approvals (aor issuances of new numbers where required) and the Company and Member shall cooperate and execute such documents as are reasonably required. The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that Company has performed all material obligations required to be performed by it to date and is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of in default in any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not material respect under any liability or obligation under any agreement pursuant Contract to which third parties have been provided with products that can be returned to it is a party. To the Cotton Group Companies in the event they are not sold and which could involve a liability knowledge of the Cotton Group Companies of $25,000 or more in Company and the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Ordinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any Member no other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related party to any such person or Contract is in default with any company or other organization in which any directorthe terms thereof. Except as set forth on Schedule 5.16 to the Disclosure Schedule, officer, partner or shareholder none of any Cotton Group Companythe Contracts listed on Schedule 5.16 were arrived at, or anyone related to any such personotherwise reflect, has a direct less than arms length negotiations or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderbargaining.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except as set forth on SCHEDULES 4.10(D) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do Except as disclosed in SCHEDULE 3.13(A) of the Company Disclosure Schedules, the Company is not have a party or bound to any outstanding (collectively, the "MATERIAL CONTRACTS"):
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement, or other form of deferred compensation plan;
(iii) hospitalization insurance or similar plan or practice, whether formal or informal;
(iv) contract for the employment of any officer, individual employee, or other person on a full-time or consulting basis or relative to severance pay for any such person;
(v) agreement or indenture relating to the borrowing of money in excess of $10,000 or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(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 permits any third party to hold or operate, any property, real or personal, for an annual rental in excess of $10,000;
(viii) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $10,000;
(ix) 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;
(x) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, either not terminable by it on 30 days' or less notice without penalty or involving more than $10,000;
(xi) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xii) contract relating to the distribution of the Company's products;
(xiii) franchise agreement;
(xiv) contract, written agreement or oral, understanding with any shareholder who beneficially owns five percent (5%) or more of the Company Common Stock or with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, director or broker that is not cancelable by the Cotton Group Companies employee (other than for employment on notice of not longer than thirty customary terms);
(30xv) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any license agreement or arrangement agreement providing for the payment or receipt of any bonus royalties or commission based other compensation by the Company in connection with the proprietary rights as disclosed on sales SCHEDULE 3.14 of the Company Disclosure Schedules; or
(xvi) other agreement material to the Company's business or earnings;not entered into in the ordinary course of business.
(b) The Cotton Group Companies Except as specifically disclosed on SCHEDULE 3.13(B) of the Company Disclosure Schedules, (i) no contract or commitment required to be disclosed under such caption has been breached or canceled by the other party; (ii) since the date of the balance sheet included in the Company's Interim Financial Statements, no customer or supplier has indicated that it will stop or decrease the rate of business done with the Company, except for changes in the ordinary course of the Company's businesses; (iii) the Company has performed all obligations required to be performed by them in connection with the contracts or commitments required to be disclosed under such caption and are not in receipt of any claim of default under any liability contract or commitment required to be disclosed under such caption; (iv) the Company has no present expectation or intention of not fully performing any obligation under any agreement pursuant to which third parties have been provided with products that can be returned any contract or commitment or commitment set forth under such caption; and (v) the Company has no any knowledge of any breach or anticipated breach by any other party to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Cotton Group Companies of $25,000 any contract or more in the aggregate;commitment set forth under such caption.
(c) The Cotton Group Companies do not have (i) any outstanding loan Prior to the date of this Agreement, Parent has been supplied with a true and correct copy of each written contract or loan commitment (excluding credit extended in the Ordinary Course commitment, and a written description of Business to purchasers of job materials) to any personeach oral contract or commitment, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted disclosed on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect 3.13 of the contract or commitment of any other personCompany Disclosure Schedules, corporationtogether with all amendments, partnership, joint venture, association, organization waivers or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. The Cotton Group Companies have made available to Purchaser true, correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or required to be referred to or listed on, any Schedule delivered hereunderchanges thereto.
Appears in 1 contract
Sources: Merger Agreement (Vitrix Inc /Nv/)
Contracts and Commitments. SCHEDULE 4.23 sets forth a list of the (a) Except as specifically contemplated by ------------------------- ------------- Cotton Group Companies' contracts with customers with an estimated value of $50,000.00 or more. Except this Agreement and except as set forth on SCHEDULES 4.10(D) (Leases)the Contracts Schedule attached ------------------ hereto, 4.11 ----------------- ---- (Indebtedness)neither of the Companies nor any of their Subsidiaries is a party to or bound by, 4.12(B) AND (D) (Intellectual Property), 4.15(A)(I) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal, in all such cases, except as otherwise set forth on the Benefits -------- Plan Schedule; -------------
(ii) any contract for the employment of any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, individual employee or broker that is not cancelable by the Cotton Group Companies other person on notice of not longer than thirty (30) days and without liability, penalty a full-time or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, consulting basis or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earningsseverance agreements;
(biii) The Cotton Group Companies are not under any liability agreement or obligation under any agreement pursuant to which third parties have been provided with products that can be returned indenture relating to the Cotton Group Companies in the event they are not sold and which could involve borrowing of money or to mortgaging, pledging or otherwise placing a liability Lien on any of the Cotton Group Companies of $25,000 or more in the aggregateits assets;
(civ) The Cotton Group Companies do not have agreements with respect to the lending or investing of funds;
(iv) license or royalty agreements;
(vi) guaranty of any outstanding loan obligation, other than endorsements made for collection;
(vii) lease or loan commitment agreement under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $100,000 annually;
(excluding credit extended viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it (other than (x) as set forth on the Real Property ------------- Schedule, (y) leases of equipment in the Ordinary Course of Business and -------- (z) leases with aggregate annual rent payments of less than $100,000);
(ix) contract or group of related contracts (other than purchase orders)with the same party continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 days or less notice without penalties or involving more than $100,000;
(x) contract which prohibits it from freely engaging in business anywhere in the world;
(xi) settlement conciliation or similar agreement imposing any prospective obligations (financial or otherwise) upon the Companies or any of their Subsidiaries; or
(xii) any agreement or purchase order with a "Big 3" automaker.
(b) Except as disclosed on the Contracts Schedule, (i) no contract ------------------ or commitment required to purchasers be disclosed on the Contracts Schedule has, to the ------------------ Knowledge of job materials) the Sellers and the Companies, been breached or canceled by the other party and the Companies, their Subsidiaries and the Sellers have no Knowledge of any anticipated breach by any other party to any personcontract required to be set forth on the Contracts Schedule, or (ii) any factoringno customer or supplier has ------------------ indicated in writing or, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in the process of collection, the Cotton Group Companies do not have any power of attorney outstanding or any contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the contract or commitment of any other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of any Cotton Group Company, or with any person related to any such person or with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies and the Sellers, orally to the Companies, any of their Subsidiaries or any Seller that it shall stop or materially decrease the rate of business done with the Companies or any Sellerof their Subsidiaries or that it desires to renegotiate its contract or current arrangement with the Companies or any of their Subsidiaries, (iii) the Companies and each of their Subsidiaries has performed all the obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule and is not in default under or in breach of ------------------ any contract or commitment required to be disclosed on the Contracts Schedule, ------------------ and no Cotton Group Company is event has occurred which with the passage of time or the giving of notice or both would result in a party default or breach thereunder and (iv) neither the Companies nor any of their Subsidiaries has any present expectation or intention of not fully performing any obligation pursuant to or bound by any presently or previously existing contract, agreement or other arrangement that has had or may in contract required to be set forth on the future have a Material Adverse Effect upon the Cotton Group Business, earnings or financial condition of any Cotton Group CompanyContracts Schedule. ------------------
(c) The Cotton Group Companies Sellers have made available to Purchaser true, the Purchasers true and correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or written contracts which are required to be referred disclosed on the Contracts Schedule, in each case together with all amendments, waivers or ------------------ other changes thereto (all of which are disclosed on the Contracts Schedule). ------------------ The Contracts Schedule contains an accurate and complete description of all ------------------ material terms of all oral contracts required to or listed on, any Schedule delivered hereunderbe set forth thereon.
Appears in 1 contract
Sources: Purchase Agreement (National Equipment Services Inc)