Common use of Agreements, Contracts and Commitments Clause in Contracts

Agreements, Contracts and Commitments. (a) Other than confidentiality and non-disclosure agreements, this Agreement and the Transaction Documents and the Debt Commitment Letter (and after the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), there are no Contracts, agreements, leases, mortgages, indentures, notes, bonds, Liens, licenses, Permits, franchises, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent or any Subsidiary thereof is a party or by or to which any of the properties or assets of Parent or any Subsidiary thereof may be bound, subject or affected (“Material Parent Contracts”). All Material Parent Contracts are listed in Schedule 4.19(a) other than those that are exhibits to the SEC Reports filed at least one (1) Business Day prior to the date of this Agreement. (b) Each Material Parent Contract was entered into at arm’s length and in the ordinary course, is in full force and effect and, to Parent’s knowledge, is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which any proceeding therefor may be brought. To Parent’s knowledge, no other party to a Material Parent Contract is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) have been heretofore delivered to the Company. (c) Neither Parent nor, to the knowledge of Parent, any other party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Parent Contract, and no party to any Material Parent Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are reasonably likely to result in a Parent Material Adverse Effect.

Agreements, Contracts and Commitments. (a) Other than confidentiality All of the Contracts required to be set forth in paragraphs (b, (c) and non-disclosure agreements, this Agreement and the Transaction Documents and the Debt Commitment Letter (and after the date hereof, any Additional Equity Financing Documents entered into accordance with the terms e) of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), there are no Contracts, agreements, leases, mortgages, indentures, notes, bonds, Liens, licenses, Permits, franchises, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent or any Subsidiary thereof is a party or by or to which any 4.7 of the properties or assets of Parent or any Subsidiary thereof may be boundCompany Disclosure Schedule are valid, subject or affected (“Material Parent Contracts”). All Material Parent Contracts are listed in Schedule 4.19(a) other than those that are exhibits to the SEC Reports filed at least one (1) Business Day prior to the date of this Agreement. (b) Each Material Parent Contract was entered into at arm’s length and in the ordinary coursesubsisting, is in full force and effect effect, binding upon the Company or one of its Subsidiaries, as applicable, and, to Parentthe Company’s knowledgeKnowledge, is valid and binding upon and enforceable against each of the other parties theretothereto in accordance with their terms, subject to the Enforcement Exceptions and the discretion Company and/or its Subsidiaries, as applicable, have paid in full or accrued substantially all amounts now due from it thereunder, and have satisfied in full or provided for all of the court before its liabilities and obligations thereunder which any proceeding therefor may are presently required to be brought. To Parent’s knowledge, no other party to a Material Parent Contract satisfied or provided for and is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) have been heretofore delivered to the Company. (c) Neither Parent nor, to the knowledge of Parent, any other party thereto is in breach of or not in default underunder any of them, and no event has occurred which nor does any condition exist that with notice or lapse of time or both would become constitute a breach material default by the Company and/or its Subsidiaries, as applicable, thereunder, nor, to the Company’s Knowledge, is any other party to any such Contract in material default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a material default underthereunder. The Company has made available to Parent true and complete copies of all of the Contracts referred to in paragraphs (b, (c) and (e) of this Section 4.7. Notwithstanding anything to the contrary set forth in this Section 4.7, solely for purposes of this Section 4.7, the term “Contract” shall not include any Government Contract (as defined in Section 4.8(a)). (b) Section 4.7(b) of the Company Disclosure Schedule sets forth a list of the following Contracts to which the Company or any of its Subsidiaries is a party or by or to it or its assets or properties are bound or subject: (i) any indenture, mortgage, promissory note, loan agreement, letter of credit or other Contract or instrument or commitment for the borrowing of money by the Company or any of its Subsidiaries, (ii) any Contract relating to any Lien upon any of the assets, properties or securities of the Company or any of its Subsidiaries, (iii) any surety, guarantee, indemnification or similar Contract involving potential obligations payable by the Company or any of its Subsidiaries, (iv) any interest rate, equity or other swap or derivative instrument, (v) any Contract obligating the Company or any of its Subsidiaries to register securities under the Securities Act, (vi) any Contract relating to the making of any loan, advance or capital contribution to, or investment in, any Material Parent other Person (other than (A) in a wholly-owned Subsidiary of the Company or (B) participant loans under the Company’s or its Subsidiaries’ 401(k) plans), (vii) any Contract relating to the acquisition or disposition (including by way of merger, consolidation, acquisition or sale of stock or assets or otherwise) of any material assets, properties or securities, (viii) any Contract establishing or imposing any type of exclusive dealing, “most-favored nation” or similar arrangement, (ix) any Contract for the purchase of materials, supplies, goods, services, equipment or other assets with annual payments of $100,000 or more that is not cancelable without penalty or payment of a material (with respect to such contract) amount of money on thirty (30) days’ notice or less (to the extent not covered in clause (vii) above), (x) Contracts providing for “earn-outs,” “savings guarantees,” “performance guarantees,” or other contingent payments by the Company or any of its Subsidiaries, (xi) any lease (whether for real or personal property) providing for annual rentals of $100,000 or more or having a remaining term of at least three (3) years from the date hereof, (xii) any partnership, joint venture, teaming, joint marketing, stockholder, voting or similar Contract, (xiii) any Contract with any labor organization or union, (xiv) any Contract involving payments by the Company or any of its Subsidiaries of more than $100,000 per year and (xv) any other material Contract not entered into in the ordinary course of business consistent with past practice. Section 4.7(b) of the Company Disclosure Schedule also includes Contracts to which Building is a party or by which it or its assets or properties are bound or subject that fall with the foregoing items (i) through (xv), to the extent known to or in the possession of the Company or any of its Subsidiaries. (c) Section 4.7(c) of the Company Disclosure Schedule sets forth a complete list of Contracts to which the Company or any of its Subsidiaries is a party or bound with any Affiliate of the Company (other than any Subsidiary which is a direct or indirect wholly owned Subsidiary of the Company). Complete and accurate copies of all Contracts set forth in Section 4.7(c) of the Company Disclosure Schedule have heretofore been furnished or otherwise made available to Parent. Except as disclosed in the Company’s proxy statement filed on April 21, 2005, neither the Company nor any of its Subsidiaries has (i) entered into any transaction with any Company Person or any transaction that would be subject to proxy statement disclosure pursuant to Item 404 of Regulation S-K, and no Company Person has (directly or indirectly) any material interest in any property or assets of the Company (except as a stockholder), any competitor, customer, supplier or agent of the Company or any Person that is currently a party to any Material Parent material Contract with the Company. (d) Neither the Company nor any of its Subsidiaries is a party or subject to a non-competition or other similar Contract or Judgment that has given or could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business by the Company or any written notice of its Subsidiaries in any material respect. Neither the Company nor any of its Subsidiaries has entered into (or is otherwise bound by) any agreement under which it or any of its Subsidiaries or their successors is restricted in any material respect from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the market or line of business. None of the Company, any of its Subsidiaries or, to the Company’s Knowledge, Building is a guarantor or otherwise liable for any liability or obligation (including indebtedness) of any claim other Person other than the Company. (e) Each of the Company, its Subsidiaries and, to the Company’s Knowledge, Building maintains insurance policies (the “Insurance Policies”) with reputable insurance carriers against all risks of a character and in such amounts as are usually insured against by similarly situated companies in the same or similar businesses. Section 4.7(e) of the Company Disclosure Schedule sets forth the insurance coverages maintained by the Company and its Subsidiaries (including coverages under the Company’s health benefits stop-loss policy but otherwise excluding coverages related to Employee Benefit Plans) and a history of any such breachclaims made and/or claims paid since January 1, default or event2000. Each Insurance Policy is in full force and effect and is valid, whichoutstanding and enforceable, individually or and all premiums due thereon have been paid in the aggregate, are reasonably likely to result in a Parent Material Adverse Effectfull.

Agreements, Contracts and Commitments. (a) Other than confidentiality and non-disclosure agreements, this Agreement and Except as set forth in the Transaction Documents and the Debt Commitment Letter (and after Parent SEC Reports filed prior to the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), there are no Contractscontracts, agreements, leases, mortgages, indentures, notes, bonds, Liensliens, licenseslicense, Permitspermit, franchisesfranchise, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent or any Subsidiary thereof is a party or by or to which any of the properties or assets of Parent or any Subsidiary thereof may be bound, subject or affected affected, which either (“Material a) creates or imposes a liability greater than $25,000, or (b) may not be cancelled by Parent on less than 30 days' or less prior notice ("Parent Contracts”"). All Material Parent Contracts are listed in Schedule 4.19(a) 3.19 other than those that are exhibits to the Parent SEC Reports filed at least one (1) Business Day prior to the date of this AgreementReports. (b) Each Material Parent Contract was entered into at arm’s arms' length and in the ordinary course, is in full force and effect and, to Parent’s knowledge, and is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which any proceeding therefor may be brought. To Parent’s knowledge, no other party to a Material Parent Contract is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) and of all outstanding offers or proposals of Parent have been heretofore delivered to the Company. (c) Neither Parent nor, to the knowledge of Parent, any other party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Parent Contract, and no party to any Material Parent Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are reasonably likely to result in have a Parent Material Adverse EffectEffect on Parent. Each agreement, contract or commitment to which Parent is a party or by which it is bound that has not expired by its terms is in full force and effect, except where such failure to be in full force and effect is not reasonably likely to have a Material Adverse Effect on Parent.

Agreements, Contracts and Commitments. (a) Other Except as set forth in the Parent SEC Reports filed prior to the Agreement Date or as set forth on Schedule 3.19(a), other than confidentiality and non-disclosure agreements, this Agreement and the Transaction Documents and the Debt Commitment Letter (and after the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), there are no Contractscontracts, agreements, leases, mortgages, indentures, notes, bonds, Liens, licenseslicense, Permitspermit, franchisesfranchise, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent or any Subsidiary thereof Merger Sub is a party or by or to which any of the properties or assets of Parent or any Subsidiary thereof Merger Sub may be bound, subject or affected affected, which may not be cancelled without penalty or liability by Parent or Merger Sub on less than 30 days’ or less prior notice (“Material Parent Contracts”). All Material Parent Contracts as of the Agreement Date are listed in Schedule 4.19(a) 3.19 other than those that are exhibits to the Parent SEC Reports filed at least one (1) Business Day prior to the date of this AgreementReports. (b) Each Material Except as set forth in the Parent SEC Reports filed prior to the Agreement Date, each Parent Contract was entered into at arm’s length and in the ordinary course, is in full force and effect effect, and, to the knowledge of Parent’s knowledge, is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which any proceeding therefor except insofar as enforceability may be brought. To Parent’s knowledgelimited by applicable bankruptcy, no other party to a Material Parent Contract is insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally or by principles governing the subject availability of a bankruptcy or insolvency proceedingequitable remedies. True, correct correct, and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) have been heretofore delivered made available to the CompanyCompany or Company counsel. (c) Neither Parent or Merger Sub nor, to the knowledge of Parent, any other party thereto is in breach of or in default under, and and, to the knowledge of Parent, no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Parent Contract, and no party to any Material Parent Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are reasonably likely to result in have a Parent Material Adverse EffectEffect on Parent or Merger Sub. Each Parent Contract that has not expired by its terms is in full force and effect, except where such failure to be in full force and effect is not reasonably likely to have a Material Adverse Effect on Parent or Merger Sub.

Agreements, Contracts and Commitments. (a) Other than confidentiality and non-disclosure agreements, this Agreement and Except as set forth in the Transaction Parent SEC Documents and the Debt Commitment Letter (and after filed prior to the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), and with respect to confidentiality and nondisclosure agreements, there are no Contracts, agreements, leases, mortgages, indentures, notes, bonds, Liens, licenses, Permits, franchises, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent or any Subsidiary thereof either Merger Sub is a party or by or to which any of the properties or assets of Parent or any Subsidiary thereof either Merger Sub may be bound, subject or affected affected, which either (a) create or impose a liability greater than $100,000, or (b) may not be cancelled by Parent or either Merger Sub on 30 days’ or less prior notice (“Material Parent Contracts”). All Material Parent Contracts are listed in Section 6.16 of the Disclosure Schedule 4.19(a) other than those that are exhibits to the Parent SEC Reports Documents. (b) Except as set forth in the Parent SEC Documents filed at least one (1) Business Day prior to the date of this Agreement. (b) Each Material , each Parent Contract was entered into at arm’s arms’ length and in the ordinary course, is in full force and effect and, to Parent’s knowledge, is valid and binding upon and enforceable against each course of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which any proceeding therefor may be brought. To Parent’s knowledge, no other party to a Material Parent Contract is the subject of a bankruptcy or insolvency proceedingbusiness. True, correct and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) have been heretofore delivered to the Company.ED&F. (c) Neither Assuming due authorization, execution and delivery by the other parties thereto, each Contract listed in Section 6.16 of the Disclosure Schedule is valid and is binding on Parent or Merger Sub, as applicable, and, to Parent’s Knowledge, each other party thereto and is in full force and effect. Except as set forth in Section 6.16 of the Disclosure Schedule, neither Parent nor either Merger Sub nor, to the knowledge of Parent’s Knowledge, any other party thereto is in default or breach in any material respect under the terms of, nor has either Parent or either Merger Sub received any notice of any material default or in default breach under, and any such Contract, and, to Parent’s Knowledge, no event or circumstance has occurred which that, with notice or lapse the passage of time or both the giving of notice or both, would become constitute a breach of material default thereunder or default underwould permit material modification, any Material Parent Contractacceleration, and no party to any Material Parent Contract has given any written notice of any claim or termination of any such breachContract or the loss of any material benefit thereunder. Parent has delivered or made available to ED&F copies of all of the Contracts listed in Section 6.16 of the Disclosure Schedule that are true, default or eventcorrect and complete in all material respects, which, individually or in the aggregate, are reasonably likely to result in a Parent Material Adverse Effecttogether with all material amendments thereto.

Agreements, Contracts and Commitments. (a) Other than confidentiality and non-disclosure agreements, this Agreement and Except as set forth in the Transaction Documents and the Debt Commitment Letter (and after Parent SEC Reports filed prior to the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), there are no Contractscontracts, agreements, leases, mortgages, indentures, notes, bonds, Liensliens, licenseslicense, Permitspermit, franchisesfranchise, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent or any Subsidiary thereof is a party or by or to which any of the properties or assets of Parent or any Subsidiary thereof may be bound, subject or affected affected, which either (a) creates or imposes a liability greater than $100,000, or (b) may not be cancelled by Parent on thirty (30) Business Days’ or less prior notice (“Material Parent Contracts”). All Material Parent Contracts are listed in set forth on Section 4.17 of the Parent Schedule 4.19(a) other than those that are exhibits to the Parent SEC Reports filed at least one (1) Business Day prior to the date of this AgreementReports. (b) Each Material Parent Contract was entered into at arm’s arms’ length and in the ordinary course, is in full force and effect and, to Parent’s knowledge, and is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which any proceeding therefor may be brought. To Parent’s knowledge, no other party to a Material Parent Contract is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) and of all outstanding offers or proposals of Parent have been heretofore delivered to the Company. (c) Neither Parent nor, to the knowledge of Parent, any other party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Parent Contract, and no party to any Material Parent Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are reasonably likely to result in have a Parent Material Adverse EffectEffect on Parent. Each agreement, contract or commitment to which Parent is a party or by which it is bound that has not expired by its terms is in full force and effect, except where such failure to be in full force and effect is not reasonably likely to have a Material Adverse Effect on Parent.

Agreements, Contracts and Commitments. Section 3.12 of the Parent Disclosure Schedule identifies each Parent Contract that is in effect as of the date of this Agreement and is (a) Other than confidentiality and non-disclosure agreements, this Agreement and the Transaction Documents and the Debt Commitment Letter (and after the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), there are no Contracts, agreements, leases, mortgages, indentures, notes, bonds, Liens, licenses, Permits, franchises, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposalsa material contract as defined in Item 601(b)(10) of any kindRegulation S-K as promulgated under the Securities Act, whether written or oral, (b) a Contract to which Parent or any Subsidiary thereof is a party or by or to which any of its assets and properties is currently bound, which involves annual obligations of payment by, or annual payments to, Parent in excess of $50,000, or (c) is a Parent Real Estate Lease. Parent has delivered or made available to the properties or assets Company accurate and complete copies of all Contracts to which Parent or Merger Sub is a party or by which Parent or Merger Sub is bound of the type described in clauses (a)-(c) of the immediately preceding sentence (any Subsidiary thereof may be boundsuch Contract, subject or affected (a “Parent Material Parent ContractsContract”), including all amendments thereto. All There are no Parent Material Parent Contracts are listed in Schedule 4.19(a) other than those that are exhibits not in written form. Parent has not nor, to the SEC Reports filed at least one (1) Business Day prior to Parent’s Knowledge as of the date of this Agreement. (b) Each Material Parent Contract was entered into at arm’s length and in the ordinary course, is in full force and effect and, to Parent’s knowledge, is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which has any proceeding therefor may be brought. To Parent’s knowledge, no other party to a Parent Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Parent Material Contract is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) have been heretofore delivered to the Company. (c) Neither Parent nor, to the knowledge of Parent, such manner as would permit any other party thereto is in breach of to cancel or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, terminate any such Parent Material Parent Contract, and no or would permit any other party to any Material Parent Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are seek damages which would reasonably likely be expected to result in have a Parent Material Adverse Effect. As to Parent, as of the date of this Agreement, each Parent Material Contract is valid, binding, enforceable and in full force and effect, subject to the Enforceability Exceptions. No Person is renegotiating, or has a right pursuant to the terms of any Parent Material Contract to change, any material amount paid or payable to Parent under any Parent Material Contract or any other material term or provision of any Parent Material Contract.

Agreements, Contracts and Commitments. (a) Other than confidentiality and non-disclosure agreements, this Agreement and Except as set forth in the Transaction Documents and the Debt Commitment Letter (and after Parent SEC Reports filed prior to the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), there are no Contractscontracts, agreements, leases, mortgages, indentures, notes, bonds, Liensliens, licenseslicense, Permitspermit, franchisesfranchise, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent or any Subsidiary thereof is a party or by or to which any of the properties or assets of Parent or any Subsidiary thereof may be bound, subject or affected affected, which either (“Material a) creates or imposes a liability greater than $25,000, or (b) may not be cancelled by Parent on less than 30 days' or less prior notice ("Parent Contracts”"). All Material Parent Contracts are listed in on Schedule 4.19(a) 3.19 other than those that are exhibits to the Parent SEC Reports filed at least one (1) Business Day prior to the date of this AgreementReports. (b) Each Material Parent Contract was entered into at arm’s arms' length and in the ordinary course, is in full force and effect and, to Parent’s knowledge, and is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which any proceeding therefor may be brought. To Parent’s knowledge, no other party to a Material Parent Contract is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) and of all outstanding offers or proposals of Parent have been heretofore delivered to the Company. (c) Neither Parent nor, to the knowledge of Parent, any other party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Parent Contract, and no party to any Material Parent Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are reasonably likely to result in have a Parent Material Adverse EffectEffect on Parent. Each agreement, contract or commitment to which Parent is a party or by which it is bound that has not expired by its terms is in full force and effect, except where such failure to be in full force and effect is not reasonably likely to have a Material Adverse Effect on Parent.

Agreements, Contracts and Commitments. (a) Other Except as set forth in the Parent SEC Reports filed prior to the date of this Agreement, other than confidentiality and non-disclosure agreements, this Agreement and the Transaction Documents and the Debt Commitment Letter agreements (and after the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none copies of which shall consititute Material Parent Contracts for purposes of this Agreementhave been made available to the Company or the Company’s counsel), there are no Contractscontracts, agreements, leases, mortgages, indentures, notes, bonds, Liensliens, licenseslicense, Permitspermit, franchisesfranchise, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent or any Subsidiary thereof is a party or by or to which any of the properties or assets of Parent or any Subsidiary thereof may be bound, subject or affected (“Material Parent Contracts”)affected. All Material Parent Contracts are listed in Schedule 4.19(a) 3.19 other than those that are exhibits to the Parent SEC Reports filed at least one (1) Business Day prior to the date of this AgreementReports. (b) Each Material Except as set forth in Schedule 3.19, each Parent Contract was entered into at arm’s arms’ length and in the ordinary course, is in full force and effect and, to Parent’s knowledge, and is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which any proceeding therefor may be brought. To Parent’s knowledge, no other party to a Material Parent Contract is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) and of all outstanding offers or proposals of Parent have been heretofore delivered made available to the Company or the Company’s counsel. (c) Neither Parent nor, to the knowledge of Parent, any other party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Parent Contract, and no party to any Material Parent Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are reasonably likely to result in have a Parent Material Adverse EffectEffect on Parent. Each agreement, contract or commitment to which Parent is a party or by which it is bound that has not expired by its terms is in full force and effect, except where such failure to be in full force and effect is not reasonably likely to have a Material Adverse Effect on Parent.

Agreements, Contracts and Commitments. (a) Other Except as set forth in the Parent SEC Reports filed prior to the date of this Agreement or as set forth in Schedule 3.19, other than confidentiality and non-disclosure agreements, this Agreement and the Transaction Documents and the Debt Commitment Letter (and after the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), there are no Contractscontracts, agreements, leases, mortgages, indentures, notes, bonds, Liensliens, licenses, Permitspermits, franchises, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent Parent, Holdco or any Subsidiary thereof Merger Sub is a party or by or to which any of the properties or assets of Parent Parent, Holdco or any Subsidiary thereof Merger Sub may be bound, subject or affected (“Material Parent Contracts”). All Material Parent Contracts are listed in Schedule 4.19(a) 3.19 other than those that are exhibits to the Parent SEC Reports. (b) Except as set forth in the Parent SEC Reports filed at least one (1) Business Day prior to the date of this Agreement. (b) Each , each Material Parent Contract was entered into at arm’s arms’ length and in the ordinary course, is in full force and effect and, to Parent’s knowledge, is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect affecting creditors’ rights generally and by general principles of equity (whether considered in a proceeding at law or in equity) and the discretion of the court before which any proceeding therefor may be brought. To Parent’s knowledge, no other party to a Material Parent Contract is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material Parent Contracts and all offers and proposals that, if accepted, would constitute Material Parent Contracts (or written summaries in the case of oral Material Parent ContractsContracts or offers or proposals) have been heretofore delivered to the Company or the Company’s counsel. (c) Neither Parent nor, to the knowledge of Parent, any other party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Parent Contract, and no party to any Material Parent Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are reasonably likely to result in have a Parent Material Adverse EffectEffect on Parent.

Agreements, Contracts and Commitments. (a) Other Except as set forth in the Parent SEC Reports filed prior to the Agreement Date or as set forth on Schedule 3.19, other than confidentiality and non-disclosure agreements, this Agreement and the Transaction Documents and the Debt Commitment Letter (and after the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), there are no Contractscontracts, agreements, leases, mortgages, indentures, notes, bonds, Liens, licenseslicense, Permitspermit, franchisesfranchise, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent or any Subsidiary thereof Merger Sub is a party or by or to which any of the properties or assets of Parent or any Subsidiary thereof Merger Sub may be bound, subject or affected affected, which may not be cancelled without penalty or liability by Parent or Merger Sub on less than thirty (30) days’ or less prior notice (“Material Parent Contracts”). All Material Parent Contracts as of the Agreement Date are listed in Schedule 4.19(a) 3.19 other than those that are exhibits to the Parent SEC Reports filed at least one (1) Business Day prior to the date of this AgreementReports. (b) Each Material Except as set forth in the Parent SEC Reports filed prior to the Agreement Date, each Parent Contract was entered into at arm’s length and in the ordinary course, is in full force and effect effect, and, to the Knowledge of Parent’s knowledge, is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which any proceeding therefor except insofar as enforceability may be brought. To Parent’s knowledgelimited by applicable bankruptcy, no other party to a Material Parent Contract is insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights generally or by principles governing the subject availability of a bankruptcy or insolvency proceedingequitable remedies. True, correct correct, and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) have been heretofore delivered made available to the CompanyCompany or Company counsel. (c) Neither Parent or Merger Sub nor, to the knowledge Knowledge of Parent, any other party thereto is in breach of or in default under, and and, to the Knowledge of Parent, no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Parent Contract, and no party to any Material Parent Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are reasonably likely to result in have a Parent Material Adverse EffectEffect on Parent or Merger Sub. Each Parent Contract that has not expired by its terms is in full force and effect, except where such failure to be in full force and effect is not reasonably likely to have a Material Adverse Effect on Parent or Merger Sub.

Agreements, Contracts and Commitments. (a) Other than Except as set forth in the Parent SEC Reports filed prior to the date of this Agreement, confidentiality and or non-disclosure agreements, this Agreement and the Transaction Documents and the Debt Commitment Letter (and after the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement)agreements or as set forth in Schedule 3.19, there are no Contractscontracts, agreements, leases, mortgages, indentures, notes, bonds, Liensliens, licenseslicense, Permitspermit, franchisesfranchise, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent, Holdco, Parent Merger Sub or any Subsidiary thereof Company Merger Sub is a party or by or to which any of the properties or assets of Parent, Holdco, Parent Merger Sub or any Subsidiary thereof may be Company Merger Sub is bound or becomes bound, subject or affected affected, which either (a) are required to be included as exhibits to a registration statement with the SEC, (b) create or impose a liability greater than $50,000, (c) provide for payments (present or future) to Parent or its Subsidiaries in excess of $50,000 in the aggregate or (d) may not be cancelled by Parent, Holdco, Parent Merger Sub or Company Merger Sub on less than 30 days’ or less prior notice without material penalties or fees (collectively, “Material Parent Contracts”). All Material Parent Contracts are listed in Schedule 4.19(a) 3.19 other than those that are exhibits to the Parent SEC Reports. (b) Except as set forth in the Parent SEC Reports filed at least one (1) Business Day prior to the date of this Agreement. (b) Each Material , each Parent Contract was entered into at arm’s arms’ length and in the ordinary course, is in full force and effect and, to Parent’s knowledge, and is valid and binding upon and enforceable against each of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which any proceeding therefor may be brought. To Parent’s knowledge, no other party to a Material Parent Contract is the subject of a bankruptcy or insolvency proceeding. True, correct and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) have been heretofore delivered made available to the Company or Company’s counsel. (c) Neither Parent, Holdco, Parent Merger Sub nor Company Merger Sub nor, to the knowledge of Parent, any other party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Material Parent Contract, and no party to any Material Parent Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, has had or are reasonably likely to result in have a Parent Material Adverse EffectEffect on Parent and its Subsidiaries taken as a whole. Each agreement, contract or commitment to which Parent, Holdco, Parent Merger Sub or Company Merger Sub is a party or by which it is bound that has not expired by its terms is in full force and effect, except where such failure to be in full force and effect has not had and is not reasonably likely to have a Material Adverse Effect on Parent and its Subsidiaries taken as a whole.

Agreements, Contracts and Commitments. (a) Other than Except as set forth in the Parent SEC Documents filed prior to the Original Agreement Date, and with respect to confidentiality and non-disclosure nondisclosure agreements, this Agreement and the Transaction Documents and the Debt Commitment Letter (and after the date hereof, any Additional Equity Financing Documents entered into accordance with the terms of Section 5.16(k)) (none of which shall consititute Material Parent Contracts for purposes of this Agreement), there are no Contracts, agreements, leases, mortgages, indentures, notes, bonds, Liens, licenses, Permits, franchises, purchase orders, sales orders or other understandings, commitments or obligations (including without limitation outstanding offers or proposals) of any kind, whether written or oral, to which Parent or any Subsidiary thereof either Merger Sub is a party or by or to which any of the properties or assets of Parent or any Subsidiary thereof either Merger Sub may be bound, subject or affected affected, which either (“Material a) create or impose a liability greater than $100,000 or (b) may not be cancelled by Parent or either Merger Sub on 30 days' or less prior notice ("Parent Contracts”"). All Material Parent Contracts are listed in Section 6.16 of the Disclosure Schedule 4.19(a) other than those that are exhibits to the Parent SEC Reports filed at least one (1) Business Day prior to the date of this AgreementDocuments. (b) Each Material Except as set forth in the Parent SEC Documents filed prior to the Original Agreement Date, each Parent Contract was entered into at arm’s arms' length and in the ordinary course, is in full force and effect and, to Parent’s knowledge, is valid and binding upon and enforceable against each course of the parties thereto, subject to the Enforcement Exceptions and the discretion of the court before which any proceeding therefor may be brought. To Parent’s knowledge, no other party to a Material Parent Contract is the subject of a bankruptcy or insolvency proceedingbusiness. True, correct and complete copies of all Material Parent Contracts (or written summaries in the case of oral Material Parent Contracts) have been heretofore delivered to the Company.ED&F. (c) Neither Assuming due authorization, execution and delivery by the other parties thereto, each Contract listed in Section 6.16 of the Disclosure Schedule is valid and is binding on Parent or Merger Sub, as applicable, and, to Parent's Knowledge, each other party thereto and is in full force and effect. Except as set forth in Section 6.16 of the Disclosure Schedule, neither Parent nor either Merger Sub nor, to the knowledge of Parent's Knowledge, any other party thereto is in default or breach in any material respect under the terms of, nor has either Parent or either Merger Sub received any notice of any material default or in default breach under, and any such Contract, and, to Parent's Knowledge, no event or circumstance has occurred which that, with notice or lapse the passage of time or both the giving of notice or both, would become constitute a breach of material default thereunder or default underwould permit material modification, any Material Parent Contractacceleration, and no party to any Material Parent Contract has given any written notice of any claim or termination of any such breachContract or the loss of any material benefit thereunder. Parent has delivered or made available to ED&F copies of all of the Contracts listed in Section 6.16 of the Disclosure Schedule that are true, default or eventcorrect and complete in all material respects, which, individually or in the aggregate, are reasonably likely to result in a Parent Material Adverse Effecttogether with all material amendments thereto.