Common use of Agreements, Contracts and Commitments Clause in Contracts

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 of the Company’s Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and of the following nature (collectively, the “Company Material Contracts”): (a) Contracts (other than Benefit Plans, which are covered under Section 4.15) with any current or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be rendered; (b) Contracts that (x) involve the performance by the Company or any of its Subsidiaries of services of an amount or value in excess of $100,000 annually after June 30, 2005 or (y) involve payments by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable by the Company on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letter); (c) Contracts (i) for the sale of assets of the Company or any of its Subsidiaries involving aggregate consideration of $50,000 or more (other than licenses of Products in the ordinary course of business), or (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its Subsidiaries; (d) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (e) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each Company Material Contract and SEC Contract is in full force and effect, is a valid and binding obligation of the Company or the Subsidiary of the Company party thereto and, to the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s Knowledge, on the part of any other party to any Company Material Contract that, with the giving of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets.

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 3.01(bb) of the Company’s Company Disclosure LetterSchedule lists all Contracts, neither the Company nor commitments and understandings of any of its Subsidiaries is a party kind to or bound by any Contract currently in effect and of the following nature (collectively, the “Company Material Contracts”): (a) Contracts (other than Benefit Plans, which are covered under Section 4.15) with any current or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have Subsidiary is a party or by or to which the Company, its Subsidiary or any of their respective properties or assets is bound or subject, whether or not in writing, (i) which is material ongoing to the continued conduct of the business of the Company and its Subsidiary as currently conducted or as currently contemplated to be conducted; (ii) which is with respect to the Company's San Diego facility contract services business and under which the Company has any current or future obligation to provide any products or services; (iii) which is not covered by clause (ii) and which pursuant to its terms imposes current or future payment obligations for services rendered or to be rendered; (b) Contracts that (x) involve the performance by the Company or any of its Subsidiaries of services of an amount or value on either party in excess of $100,000 125,000 annually after June 30or $250,000 in the aggregate; (iv) which includes any non-competition, 2005 non-solicitation, standstill or (y) involve payments by similar restrictions or undertakings on the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable by Subsidiary; (v) pursuant to which the Company on not more than 30 days notice without material penalty (or its Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any other than employment and consulting arrangements entered into in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) Person or pursuant to which any other Person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company Disclosure Letter); or its Subsidiary; (cvi) Contracts (i) which provides for any mortgage, pledge, security agreement, deed of trust or other instrument or arrangement granting or purporting to xxxxx x xxxx or security interest upon any intellectual property rights of the sale Company or its Subsidiary or any other material assets or group of assets of the Company or any of its Subsidiaries involving aggregate consideration of $50,000 or more (other than licenses of Products in the ordinary course of business), Subsidiary; or (iivii) for which is not terminable by the grant to any Person Company or its Subsidiary by notice of not more than 30 days without the payment of any preferential rights material penalty or premium. Each Contract, commitment or understanding required to purchase any material amount of assets or any material asset be listed in Section 3.01(bb) of the Company or any of its Subsidiaries; Disclosure Schedule (d) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (e) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of creditcollectively, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each "Company Material Contract and SEC Contract Contracts") is in full force and effect, effect and is a valid and binding obligation of enforceable against the Company or the its Subsidiary of the Company party thereto (and, to the knowledge of the Company’s Knowledge, each against the other party parties thereto) in accordance with its terms, except as would not reasonably that such enforcement may be expected subject to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business bankruptcy, insolvency, reorganization, moratorium or operations other similar laws affecting or relating to enforcement of creditors' rights generally and (z) general equitable principles. Neither the Company and nor its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary ornor, to the Company’s Knowledge's knowledge, on the part of any other party to any Company Material Contract thatis in violation of or in default under (nor does there exist any condition which, with upon the passage of time or the giving of notice or the lapse of time or both, would become cause such a violation of or default or event of default under under) any Company Material Contract or SEC Contract that could Contract, which in each case would reasonably be expected to (x) result in a material loss or liability materially impair the benefits expected to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsbe derived therefrom.

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 of the Company’s Disclosure Letter, neither a) Neither the Company nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and of the following nature (collectively, the “Company Material Contracts”):by: (ai) Contracts any lease or sublease (whether of real or personal property) providing for annual rentals of $50,000 or more; (ii) any agreement for the purchase or license of technology, materials, supplies, goods, services, equipment or other than Benefit Plans, which are covered under Section 4.15tangible or intangible assets that provides for either (A) with any current or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which annual payments by the Company or its Subsidiaries may have material ongoing of $50,000 or future payment obligations for services rendered or more to be renderedmade after the date of this Agreement or (B) aggregate payments by the Company or its Subsidiaries of $50,000 or more to be made after the date of this Agreement; (biii) Contracts that (x) involve any license, sales, distribution or other similar agreement providing for the performance sale or license by the Company or any of its Subsidiaries of services of an amount technology, materials, supplies, goods, services, equipment or value in excess other assets that provides for either (A) annual payments to the Company or its Subsidiaries of $100,000 annually after June 30, 2005 50,000 or more or (yB) involve aggregate payments to the Company and the Subsidiaries of $50,000 or more; (iv) any partnership, joint venture or other similar agreement or arrangement; (v) any agreement, contract or commitment relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise); (vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $50,000 and which may be prepaid on not more than thirty (30) days’ notice without the payment of any penalty; (vii) except for agreements with customers by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable by the Company on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letterconsistent with past practices, any option (other than employee stock options), license, franchise or similar agreement; (cviii) Contracts any alliance, agency, dealer, sales representative, marketing, distribution, original equipment manufacturer, remarketer, joint marketing, channel partner or other similar agreement; (iix) any development or collaboration agreement or other agreement for the sale development of assets of the Company or any of its Subsidiaries involving aggregate consideration of $50,000 or more (other than licenses of Products in the ordinary course of business), or (ii) products and services for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its Subsidiaries; (dx) Contracts for any agreement that limits the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion freedom of the assets of, Company or by any other manner having the same or similar effect, Subsidiary to compete in any line of business or with any Person or assets in any area or which could reasonably be expected to so limit the freedom of the Company or any Affiliate after the Effective Time; (xi) any agreement with any Affiliate of the Company (or any Subsidiary), with any director or officer of the Company or any of its Subsidiaries, or, to the Knowledge of the Company with any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the 0000 Xxx) of any Person such director or officer; (xii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement with a firm or other than organization; (xiii) any employment or consulting agreement or any agreement with severance, change in control or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any Subsidiary to make any payment as a result of the transactions contemplated by this Agreement, termination of employment or both; (xiv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of equipmentthe benefits of which will be increased, inventories and supplies or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; or (xv) any other agreement, commitment, arrangement or plan not made in the ordinary course of business consistent with past practice); (e) Contracts (that is material to the Company and its Subsidiaries, taken as a whole, including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments inwithout limitation, any Person, other than agreement involving annual payments by any customer to the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or and its Subsidiaries with a value in excess of $50,000 75,000. (b) Each agreement, contract, plan, lease, arrangement or commitment disclosed in any fiscal yearSchedule to this Agreement or required to be disclosed pursuant to this Section (each, or in the aggregate capital expenditures a “Material Contract”) is a valid and binding agreement of the Company and/or or its Subsidiaries with a value in excess of $200,000; (i) Contracts Subsidiaries, as the case may be, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws relating to any material Company Permits; or affecting creditors’ rights generally and to general principles of equity (j) Contracts which contain restrictions regardless of whether enforcement is considered in a proceeding in equity or at law), and is in full force and effect with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each Company Material Contract and SEC Contract is in full force and effect, is a valid and binding obligation of the Company or the Subsidiary of the Company party thereto and, to the Knowledge of the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to and none of the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations Company, any Subsidiary of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Knowledge of the Company’s Knowledge, on the part of any other party thereto is in default or breach in any material respect under the terms of any such agreement, contract, plan, lease, arrangement or commitment, and, to any Company Material Contract the Knowledge of the Company, no event or circumstance has occurred that, with the giving of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to constitute any event of default thereunder. True and complete copies of each such agreement, contract, plan, lease, arrangement or commitment have been made available to Parent. (xc) result in To the Knowledge of the Company, as of the date of this Agreement, no person is renegotiating, or has a right (absent any default or breach of a Material Contract) pursuant to the terms of any Material Contract to renegotiate, any material loss amount paid or liability payable to the Company under any Material Contract or its Subsidiaries any other material term or (y) interfere in a material manner with the business or operations provision of any Material Contract. As of the date of this Agreement, the Company and its Subsidiaries has not received any written or verbal indication of an intention to terminate any of the ownership Material Contracts by any of their properties or assets.the parties to any of the Material

Agreements, Contracts and Commitments. Except Item 3.10 of the Aurora Disclosure Schedule sets forth a complete and correct list of each existing contract, agreement or commitment of Aurora, other than Material Leases: (i) upon which any substantial part of its business is dependent or which, if breached, would be reasonably likely to have a Material Adverse Effect on Aurora; (ii) which provides for Contracts filed as exhibits aggregate future payments of more than $5,000, except for purchase orders or sale orders arising in the ordinary and usual course of business, in which case they are listed only if any party thereto is obligated to Company SEC Documents make payments pursuant to Item 601 of Regulation S-K thereto aggregating more than $25,000; (iii) which extends for more than 180 days from the date hereof and listed is not cancellable by either party on the exhibit index to the Company’s annual report on Form 10-K 30 days' notice or less; (iv) which provides for the fiscal year ended December 31sale, 2004 (“SEC Contracts”)after the date hereof and other than in the ordinary course of business, or as disclosed in Section 4.12 of the Company’s Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and of the following nature (collectively, the “Company Material Contracts”): (a) Contracts (other than Benefit Plans, which are covered under Section 4.15) with any current or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be renderedassets; (bv) Contracts that which relates to the employment, compensation, retirement or termination of the services of any officer or employee or former officer or employee, including bonus, incentive, pension, profit-sharing, hospitalization, insurance, deferred compensation, retirement, stock option or stock purchase plans or similar plans providing employee benefits for or with respect to any officer or employee; (xvi) which contains covenants pursuant to which any person or entity has agreed not to compete with the business of any other person or entity or not to disclose to others information concerning such other person or entity; (vii) which relates to the sale or other disposition of goods or services and which (A) involve the performance by the Company terms or any of its Subsidiaries of services of an amount quantities exceeding normal commitments or value in excess of $100,000 annually after June 30, 2005 or (y) involve payments by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable by the Company on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course of business and or (B) contain most favored pricing or other special pricing terms or other provisions which would prohibit or limit the Change ability of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letter)Buyer to effect price increases; (cviii) Contracts (i) for the sale of pursuant to which title to any assets of the Company or any of its Subsidiaries involving aggregate consideration of $50,000 or more Aurora may be encumbered; or (other than licenses of Products in the ordinary course of business), or (iiix) for the grant which relates to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its Subsidiaries; (d) Contracts for the acquisitionpartnership, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (e) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages joint venture or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts arrangement involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to from any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures enterprise. Each of the Company and/or its Subsidiaries with foregoing is referred to in this Agreement as a value "Material Contract." Except as set forth in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures Item 3.10 of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restrainingAurora Disclosure Schedule, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each Company each Material Contract and SEC Contract is in full force and effecteffect and there has not occurred, is a valid and binding obligation of the Company or the Subsidiary of the Company party thereto andwith respect to any such Material Contract, to the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no any default or event of default or eventdefault, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s Knowledge, on the part of any other party to any Company Material Contract thatwhich, with the giving of or without due notice or with the lapse of time time, or both, would become constitute a default or event of default under on the part of Aurora, or, to the best of Aurora's knowledge, any Company other party thereto, except where such default or event of default would not have a Material Adverse Effect on Aurora. Complete copies of each Material Contract or SEC Contract that could reasonably be expected have been delivered to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsBuyer.

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to Company SEC Documents pursuant to Item 601 (a) The applicable subpart of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 3.11(a) of the Company’s Company Disclosure Letter, neither Schedule sets forth all of the following Contracts to which the Company nor or its Subsidiaries are a party or by which it or any of its Subsidiaries assets is a party to or bound by any Contract currently in effect and of the following nature (collectively, with the Real Property Leases, the “Company Material Contracts”): (ai) Contracts entered into within the last three (3) years or otherwise having executory obligations on the part of the Company or its Subsidiaries and relating to the acquisition or disposition by the Company or its Subsidiaries of: (A) any business, real property or business segment (whether by merger, consolidation or other business combination, sale of assets or otherwise) or the capital stock of any Person, (B) any of the assets of the Company or its Subsidiaries (other than Benefit Planssales of inventory or the disposition of obsolete equipment, which in each case in the ordinary course of business) for consideration in excess of $25,000; (ii) Contracts relating to the incurrence, assumption or guarantee of any debt; (iii) any other Contracts (or groups of related Contracts) that are covered under Section 4.15) with any current or former, director or officer of, or natural person consultant of or to, not terminable by the Company or any other Subsidiary without penalty on notice of sixty (60) days or less, which (A) which involve the expenditure or receipt of more than $25,000 annually or more than $100,000 over the remaining term, or (B) require performance by any Party more than one year from the Signing Date; (iv) Contracts that contain a change of control or other similar provision; (v) Contracts restricting the ability of the Company or any Subsidiary to operate or compete in any business or with any Person or in any geographic area during any period of time; (vi) Contracts that require the Company or its Subsidiaries to purchase minimum quantities (or pay any amount for failure to purchase any specific quantities) of goods or services, comply with “take or pay” arrangements, deal with any Person on an exclusive basis, or provide “most favored nations” or similar pricing to any Person; (vii) Contracts that require the Company or any Subsidiary to indemnify or hold harmless any other Person (other than obligations of the Company or its Subsidiaries to indemnify its customers against third party intellectual property claims contained in the Company Form License Agreements); (viii) Contracts that provide for any partnership, joint venture, strategic alliance, teaming or similar arrangement; (ix) Contracts that provide for or relate to any employment or consulting relationship with any Person (other than at-will arrangements), including any stock option, stock purchase, stock appreciation, deferred compensation, severance of other similar equity or equity-like plan or arrangement involving current or former directors, managers, stockholders, officers, or employees; (x) Contracts under which the Company or any Subsidiary grants or is granted a license of any Intellectual Property (other than Company Form License Agreements and licenses to the Company or its Subsidiaries may have material ongoing or future payment obligations Subsidiaries, as applicable, of commercially-available software for services rendered or to be renderedtotal consideration of less than $5,000); (bxi) Contracts that with any Governmental Authority, including any settlement, conciliation or similar agreements with any Governmental Authority; (xxii) involve Contracts granting a power of attorney; (xiii) Contracts relating to the performance by sales or distributions of the Company Company’s or any of its Subsidiaries of Subsidiary’s products or services of an amount or value in excess of $100,000 annually after June 30, 2005 or (y) involve payments by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable by the Company on not more than 30 days notice without material penalty (other than employment excluding purchase and consulting arrangements sales orders entered into in the ordinary course of business and Company Form License Agreements); and (xiv) Contracts that are otherwise material to the Change business, operations or financial condition of Control Agreements the Company or its Subsidiaries and Severance Agreements disclosed is outside the Company’s or its Subsidiary’s ordinary course of business; (xv) each Contract with any Person, including any financial advisor, broker, finder, investment banker or other Person, providing advisory services to Company or its Subsidiaries in connection with the Contemplated Transactions; (b) True, correct and complete copies of all Material Contracts as currently in effect have previously been delivered to VINE. The Company and its Subsidiaries are not in default under any Material Contract. To the Knowledge of the Company, no other party to a Material Contract has breached, violated or defaulted under any Material Contract and no circumstance exists that, with notice or lapse of time or both (including the Company Merger), would constitute a default by any party. Section 4.12(n3.11(b) of the Company Disclosure Letter); (c) Contracts (i) for Schedule sets forth summaries containing the sale terms of assets of the Company or any of its Subsidiaries involving aggregate consideration of $50,000 or more (other than licenses of Products in the ordinary course of business), or (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its Subsidiaries; (d) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (e) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each Company all oral Material Contract and SEC Contract is in full force and effect, is a valid and binding obligation of the Company or the Subsidiary of the Company party thereto and, to the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s Knowledge, on the part of any other party to any Company Material Contract that, with the giving of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsContracts.

Agreements, Contracts and Commitments. Except for Contracts filed (a) Schedule 5.14(a) contains a true and complete list as exhibits to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 of the Company’s Disclosure LetterExecution Date, neither and the Company nor has delivered to Purchaser complete and correct copies, of the Contracts described below to which the Company or any of its Subsidiaries Subsidiary is a party to or bound by any Contract currently in effect and of the following nature (collectively, the “Company Material Contracts”"SCHEDULED CONTRACTS"): (ai) Contracts (other than Benefit Plans, each Contract pursuant to which are covered under Section 4.15) with any current or former, director or officer of, or natural person consultant of or to, the Company or any Subsidiary currently leases real property used in the operation of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be renderedBusiness, including the FBO Leases; (bii) Contracts that (x) involve each Contract for the performance purchase of fuel after the date hereof by the Company or any of its Subsidiaries of services of an amount or value in excess of $100,000 annually after June 30, 2005 or Subsidiary; (yiii) each Contract reasonably expected to involve payments the future delivery by the Company or any Subsidiary of its Subsidiaries 500,000 or more gallons of fuel per year to any single customer and any requirements Contracts for fuel; (iv) each Contract that has a remaining term in excess of $100,000 annually after June 30one year, 2005cannot be terminated on less than 90 days' notice (without a monetary penalty) and involves future payments, unless terminable performance or services or delivery of goods or materials to or by the Company on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into or any Subsidiary of any amount or value reasonably expected to exceed $50,000 in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letter)any future 12-month period; (cv) Contracts (i) for the sale of assets each license agreement of the Company or any of its Subsidiaries involving aggregate consideration of $50,000 Subsidiary with respect to patents, trademarks, copyrights or more (other than licenses of Products in the ordinary course of business), intellectual property rights currently used or (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of be used by the Company or any of its Subsidiaries; (d) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person Subsidiary (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (e) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) those relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts commercial-off-the-shelf software entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under , the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) fees for which do not exceed $5,000 individually, or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each ); (vi) each joint venture, partnership and other similar Contract involving the sharing of profits of the Company Material or any Subsidiary with any third-party; (vii) each Contract that limits the freedom of the Company or any Subsidiary to compete in any line of business, to compete within any geographic area or with any Person or otherwise materially restricts the Company's or any Subsidiary's ability to solicit or hire any Person or solicit business from any Person; (viii) each Contract with current or former stockholders, officers, directors or employees of the Company or any Subsidiary, in each case, that provides for any unsatisfied severance obligation; (ix) each collective bargaining agreement or other Contract to or with any labor unions involving the Company's or any Subsidiary's employees; (x) any and SEC all broker, distributor or dealer agreements that involve future payments of amounts reasonably expected to exceed $50,000 in any future 12-month period; (xi) any and all agreements requiring the incurrence of debt for borrowed money by the Company or any Subsidiary; (xii) each Contract is relating to the disposition or acquisition of any FBO facility or related business, in each case, since March 1, 2003, including the Initial Acquisition Purchase Agreements, the Project C Acquisition Agreement, the Additional Acquisition Purchase Agreements, if any, and the Additional Acquisition Letters, if any; and (xiii) each amendment in respect of any of the foregoing. (b) The Scheduled Contracts are in full force and effect. To the Knowledge of the Company, except for the consent requirements listed on Schedule 5.5, no event has occurred that, with notice, the passage of time or both, would constitute a default by the Company or any other party under, or failure of the Company or any other party to comply with a material provision of, any of the Scheduled Contracts, or otherwise give any party a right of termination or material modification thereof. None of the Company, the Subsidiaries or, to the Knowledge of the Company, the other party or parties to such Scheduled Contracts (i) is in default under the terms of any such Scheduled Contract, (ii) has received a notice that it is in default under, or not in material compliance with, any provision of any Scheduled Contracts or (iii) has delivered any notice to another party alleging any default under, or failure to comply with any material provision of any Scheduled Contract. Each such Scheduled Contract is the valid and binding obligation of the Company or the Subsidiary Subsidiaries, as applicable, and to the Knowledge of the Company, the other party or parties thereto, enforceable by the Company party thereto andor the Subsidiaries in accordance with the terms of such Scheduled Contracts except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other Legal Requirements relating to or affecting creditors' rights generally or by equitable principles. (c) Except as disclosed on Schedule 5.14(c), as of the Execution Date, to the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations Knowledge of the Company and its Subsidiaries Company, no material supplier to or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part landlord of the Company or any Subsidiary, or any Governmental Entity, has taken, and neither the Company nor any Subsidiary or, to the Company’s Knowledge, on the part of has received any other party to any Company Material Contract notice that, with the giving any material supplier to or landlord of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries any Subsidiary, or (y) interfere in a material manner with any Governmental Entity, contemplates taking, any steps to terminate or materially and adversely alter the business relationship of Company with such supplier, landlord or operations Governmental Entity. (d) All of the Company's obligations and the Subsidiaries' obligations to indemnify (including any obligations to advance funds for expenses) any Person for acts or omissions by such Person occurring prior to the Closing Date, whether pursuant to Charter Documents of the Company or any Subsidiary, individual indemnity agreements, board resolutions or otherwise, are listed and its Subsidiaries or the ownership of their properties or assetsdescribed on Schedule 5.14(d).

Agreements, Contracts and Commitments. Except for Contracts as set forth in Section 3.11 of the Company Disclosure Letter or filed or incorporated by reference as exhibits to the Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 date of the Company’s Disclosure Letterthis Agreement, neither the Company nor any of its the Subsidiaries is currently a party to or bound by any Contract currently in effect and contracts, agreements, instruments, arrangements, guarantees, licenses, executory commitments or understandings that continue to be binding on the Company or its Subsidiaries (each, a "CONTRACT") of the following nature (collectively, the “Company Material Contracts”"COMPANY MATERIAL CONTRACTS"): (ai) Contracts (other than Benefit Plans, which are covered under Section 4.15) with any current or formerformer employee, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be renderedSubsidiaries; (bii) Contracts that (x) involve the performance by the Company or any of its Subsidiaries of services of an amount amount, payments or value (as measured by the revenue derived therefrom during the fiscal year ended December 30, 2001) in excess of $100,000 annually after June 30, 2005 or (y) involve payments by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005250,000 annually, unless terminable by the Company on not more than 30 ninety (90) days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letter)penalty; (ciii) Contracts (ix) for the sale of assets of the Company or any of its the Subsidiaries involving aggregate consideration of $50,000 150,000 or more (other than licenses of Products in the ordinary course of business)more, or (iiy) for the grant to any -21- Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its the Subsidiaries; (div) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effectmanner, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (ev) Contracts (including including, without limitation, loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (fvi) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 12,500 or less to any individual on any date of determination, and $50,000 150,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (gvii) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including including, without limitation, any franchising agreement); (hviii) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 250,000 in any fiscal calendar year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,0001,000,000; (iix) Contracts relating to any material Liquor License of any Company PermitsRestaurant (as defined in Section 3.16(b)); (jx) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stockstock (other than the Company Senior Credit Agreement); (kxi) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries Company or any of its or their affiliates; (lxii) Contracts which are material to the Company or any of its the Subsidiaries and which restrict the Company or any of its the Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (mxiii) Contracts that would be required to be disclosed under Item 404 of Regulation S-K under the Securities Act;; or (nxiv) Contracts required to be filed of the type described under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each Company Material Contract and SEC Contract is in full force and effect, is a valid and binding obligation of the Company or the Subsidiary of the Company party thereto and, to the Company’s 's Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s 's Knowledge, on the part of any other party to any Company Material Contract that, with the giving of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract Contract, except for such defaults or SEC Contract that could events of default which have not resulted in and would not reasonably be expected likely to (x) result in, individually or in the aggregate, a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsMaterial Adverse Effect.

Agreements, Contracts and Commitments. (a) Except for Contracts filed as exhibits provided to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on Parent in the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31Disclosure Binder delivered herewith, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 of the Company’s Disclosure Letter, neither the Company nor any of its Subsidiaries is not a party to or bound by any Contract currently in effect and of the following nature (collectively, the “Company Material Contracts”):by: (ai) Contracts any lease or sublease (other than Benefit Plans, which are covered under Section 4.15whether of real or personal property) with any current providing for annual rentals of $25,000 or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be renderedmore; (bii) Contracts that any agreement for the purchase or license of materials, supplies, goods, services, equipment or other tangible or intangible assets providing for either (xA) involve the performance by the Company or any of its Subsidiaries of services of an amount or value in excess of $100,000 annually after June 30, 2005 or (y) involve annual payments by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable 50,000 or more or (B) aggregate payments by the Company of $50,000 or more; (iii) any license, sales, distribution or other similar agreement providing for the sale or license by the Company of materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments to the Company of $50,000 or more or (B) aggregate payments to the Company of $50,000 or more; (iv) any partnership, joint venture or other similar agreement or arrangement, other than those related to Salvador Systems LLC; (v) any agreement, contract or commitment relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise); (vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $50,000 and which may be prepaid on not more than 30 days days’ notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course payment of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letter)any penalty; (cvii) Contracts (i) except for the sale of assets of agreements by the Company or any of its Subsidiaries involving aggregate consideration of $50,000 or more (other than licenses of Products in the ordinary course of business), or (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its Subsidiaries; (d) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies with customers in the ordinary course of business consistent with past practicepractices, any option (other than employee stock options), license, franchise or similar agreement; (eviii) Contracts any alliance, agency, dealer, sales representative, marketing, distribution, original equipment manufacturer, remarketer, joint marketing, channel partner or other similar agreement that does not provide for termination without compensation upon no more than 30 days notice; (including loan agreementsix) any development or collaboration agreement or other agreement for development of products and services for the Company; (x) any agreement that limits the freedom of the Company to compete in any line of business or with any Person or in any area or which could reasonably be expected to so limit the freedom of the Company after the Effective Time; (xi) any mortgages, indentures, loans or credit agreements, notes, bonds, mortgages security agreements or other agreements, indentures agreements or instruments) instruments relating to indebtedness for borrowed money, letters the borrowing of money or extension of credit, other than those mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments that are not, individually or in the deferred purchase price aggregate, material to the Company; (xii) any agreement with any Affiliate of propertythe Company, conditional sale with any director or officer of the Company, or with any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the 1000 Xxx) of any such director or officer; or (xiii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization other than as contemplated under this Agreement; (xiv) any employment or consulting agreement or any agreement with severance, change in control or similar arrangements, capital lease obligationsthat will result in any obligation (absolute or contingent) of the Company to make any payment as a result of the consummation of the Merger, obligations secured by a Lientermination of employment or both; (xv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect the vesting of benefits of which will be accelerated, by the occurrence of any of the foregoing but in transactions contemplated by this Agreement or the value of any event excluding trade payables arising of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; or (xvi) any other agreement, commitment, arrangement or plan not made in the ordinary course of business consistent with past practicethat is material to the Company, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments inincluding without limitation, any Person, other than agreement involving annual payments by any customer to the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each Company Material Contract and SEC Contract is in full force and effect, is a valid and binding obligation of the Company or the Subsidiary of the Company party thereto and, to the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s Knowledge, on the part of any other party to any Company Material Contract that, with the giving of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets150,000.

Agreements, Contracts and Commitments. Except for (a) Schedule 4.18 of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company Material Contract” of the Company shall mean each Company Real Property Lease and each of the following Contracts filed as exhibits to which the Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on is a party: (i) Each Contract (including purchase orders with suppliers or customers) that the exhibit index Company reasonably anticipates will involve annual payments or consideration furnished by or to the Company’s annual report on Form 10-K Company of more than $25,000; (ii) Each note, debenture, other evidence of indebtedness, guarantee, loan, credit or financing agreement or instrument or other contract for money borrowed by the fiscal year ended December 31Company from a third party; (iii) Each Contract related to any material equipment used in the manufacturing, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 packaging and/or distribution of the Company’s Disclosure Letterproducts, neither including, without limitation, all Contracts concerning the Company nor Software and technology related thereto or the maintenance thereof; (iv) Each Contract for the acquisition of any Person or any business division thereof or the disposition of its Subsidiaries is a party to or bound by any Contract currently in effect and material assets of the following nature Company, in each case, whether by merger, purchase or sale of stock or assets or otherwise occurring in the last three years, other than Contracts (collectively, A) in which the “Company Material Contracts”): (a) Contracts applicable acquisition or disposition has been consummated and there are no material obligations ongoing (other than Benefit Plans, which are covered under Section 4.15customary non-disclosure and similar obligations incidental thereto) with any current or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be rendered; (b) Contracts that (x) involve the performance by the Company or any of its Subsidiaries of services of an amount or value in excess of $100,000 annually after June 30, 2005 or (yB) involve payments by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable by the Company on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course of business business; (v) Each collective bargaining (or similar) agreement or Contract with any labor union or other body representing employees of the Company; (vi) Each lease, rental agreement, installment and conditional sale agreement, or other Contract that, in each case, (A) provides for the Change ownership of, leasing of, title to, use of, or any leasehold or other interest in any personal property; and (B) involves annual payments in excess of Control Agreements and Severance Agreements disclosed $25,000; (vii) Each joint venture Contract, partnership agreement or limited liability company agreement with a third party; (viii) Each agreement with any Affiliate of the Company; (ix) Each Contract with any current or former employee or consultant of the Company; (x) Each Contract, other than customary non-disclosure agreements, that contains covenants expressly limiting in Section 4.12(n) any material respect the freedom of the Company Disclosure Letter)to: (A) compete with any Person in a product line or line of business; (B) operate in any geographic area; or (C) solicit customers; (cxi) Contracts Each Contract providing for indemnification or any guaranty by the Company, in each case that is material to the Company, other than (iA) for any guaranty by the sale Company of assets any of the obligations of the Company or (B) any Contract providing for indemnification of its Subsidiaries involving aggregate consideration of $50,000 customers or more (other than licenses of Products Persons pursuant to Contracts entered into in the ordinary course of business); (xii) Each Contract that grants any right of first refusal, right of first offer, or (ii) for the grant similar right with respect to any material assets, rights, or properties of the Company; (xiii) any Contract that obligates the Company to conduct business on an exclusive or preferential basis or that contains a “most favored nation” or similar covenant with any third party or upon consummation of the Transactions will obligate Iconic or the Company to conduct business on an exclusive or preferential basis; (xiv) Each Contract (including any license agreement, coexistence agreement and agreement with a covenant not to xxx) pursuant to which the Company either (A) grants to a third Person of any preferential rights a license, immunity, or other right in or to purchase any material amount Owned Intellectual Property or (B) is granted by a third Person a license, immunity, or other right in or to any Intellectual Property or IT Systems material to the business of assets or any material asset the Company, provided, however, that none of the following shall be required to be set forth on Schedule 4.18(a)(xiv) of the Company or any Disclosure Letter but shall constitute Company Material Contracts if they otherwise qualify: (x) non-exclusive licenses of its Subsidiaries; (d) Contracts for Owned Intellectual Property granted by the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies Company to customers in the ordinary course of business consistent with past practice); ; (ey) Contracts licenses of open source Software; and (including loan agreementsz) click-wrap, credit agreementsshrink-wrap and off-the-shelf Software licenses of customized Software that are available on standard terms to the public generally with license, notesmaintenance, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines support and other office equipment); (f) Loans or advances to (other fees less than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal 5,000 per year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (oxv) Contracts that contain minimum annual purchase obligations Any outstanding written commitment to enter into any Contract of the type described in subsections (take-or-payi) through (xiv) of this Section 4.18(a). (b) Except as would not, individually or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each , reasonably be expected to be material to the Company, all Company Material Contract and SEC Contract is Contracts are: (i) in full force and effect, is a subject to the Remedies Exception and (ii) represent the legal, valid and binding obligation obligations of the Company or the Subsidiary of the Company party thereto and, to the Knowledge of the Company’s Knowledge, each represent the legal, valid and binding obligations of the other parties thereto. True, correct and complete copies of all Company Material Contracts in effect as of the date hereof have been made available to Iconic. Neither the Company nor, to the Knowledge of the Company, any other party thereto, except as is in material breach of or default under, and to the Knowledge of the Company, no event has occurred which with notice or lapse of time or both would not reasonably be expected to (x) result in become a material loss breach of or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations default under, any of the Company Material Contracts, and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s Knowledge, on the part of any other party to any Company Material Contract thathas given any written or, with to the giving Knowledge of the Company, oral, claim or notice or the lapse of time or bothany such material breach, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsevent.

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in a) Section 4.12 3.13(a) of the Company’s Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and Schedule identifies each of the following nature types of Company Contracts that is in effect as of the date of this Agreement, other than Company Employee Plans and the definitive agreements in respect of the Contemplated Transactions (each, a “Company Material Contract” and collectively, the “Company Material Contracts”): (ai) Contracts that constitute Company Convertible Notes; (other than Benefit Plansii) that relates to any material bonus, which are covered under Section 4.15) with any current or former, director or officer ofdeferred compensation, or natural person consultant of severance plans or to, arrangements; (iii) requiring or otherwise involving payment by or to the Company or any of its Subsidiaries under which of more than an aggregate of $250,000 during the Company fiscal year ending December 31, 2023 (other than indemnification agreements or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be renderedemployment and separation agreements entered into in the ordinary course of business); (biv) Contracts that (x) involve the performance evidencing a commitment by the Company or any of its Subsidiaries of services of an amount or value to make a future capital expenditure in excess of $100,000 annually 250,000 that is not terminable by such Entity upon notice of sixty (60) days or less without penalty or liability; (v) that requires payments by the Company or any of its Subsidiaries after June the date of this Agreement in excess of $250,000 pursuant to its express terms relating to the employment of, or the performance of employment-related services by, any Person, including any employee, consultant or independent contractor, or Entity providing employment related, consulting or independent contractor services, not terminable by the Company or any of its Subsidiaries on thirty (30) calendar days’ or less notice without liability, 2005 except to the extent general principles of wrongful termination Law may limit the Company’s, or such successor’s ability to terminate employees at will; (vi) (A) that includes (1) any “most favored nations” terms or conditions, including with respect to pricing, (2) containing exclusivity obligations or otherwise limiting the freedom or right of the Company or any of its Subsidiaries to sell, distribute or manufacture any products or services for another person, or (y3) involve payments any rights of first refusal, rights of first negotiation or similar obligations or restrictions, including such rights which provide a right of first negotiation or refusal to purchase, lease, sublease, license, sublicense, use, possess or occupy any securities, assets (including Intellectual Property) or other interest of the Company or any of its Subsidiaries or (B) containing any provision or covenant that materially limits, or purports to materially limit, the ability of the Company or any of its Subsidiaries to engage in any line of business (whether generally or in any geographic area) or compete with any Person or in any line of business or geographic area; (vii) relating to or evidencing indebtedness for borrowed money or any guarantee of indebtedness for borrowed money by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable 250,000 (excluding loans by the Company on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into to wholly-owned Subsidiaries in the ordinary course Ordinary Course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure LetterBusiness); (cviii) Contracts providing for or governing the formation of any joint venture, partnership, strategic alliance, research and development collaboration, or similar arrangement; (iix) for that is a Contract governing, related to or pertaining to any Company Intellectual Property (other than any confidential information provided under confidentiality agreements) that is material to the sale of assets of Company and its Subsidiaries, taken as a whole; (x) (A) pursuant to which any Person granted the Company an exclusive license under any Intellectual Property, or (B) pursuant to which the Company or any of its Subsidiaries granted any Person an exclusive license under any Company Intellectual Property; (xi) that has continuing obligations or interests involving aggregate consideration (A) “milestone” or other similar contingent payments, including upon the achievement of $50,000 development, regulatory or more (other than licenses of Products in the ordinary course of business)commercial milestones, or (iiB) for the grant to any Person payment of any preferential rights to purchase any material amount of assets royalties or any material asset other amounts calculated based upon sales, revenue, income or similar measure of the Company or any of its Subsidiaries; (dxii) Contracts for that is a settlement, conciliation or similar Contract with or approved by any Governmental Authority (A) pursuant to which the acquisition, by merging Company or consolidating with, by purchasing an equity interest in any of its Subsidiaries will be required after the date of this Agreement to pay any monetary obligations or a portion (B) that contains material obligations or limitations on the conduct of the assets of, or by any other manner having the same or similar effect, any business Company or any Person or assets of any Person its Subsidiaries (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practicecustomary confidentiality obligations); (exiii) Contracts (including loan with any Governmental Authority, except for materials transfer agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent agreements with past practice, intercompany indebtedness academic institutions and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees non-disclosure agreements entered into in the ordinary course Ordinary Course of business consistent with past practice)Business; (gxiv) Contracts relating to any material joint venturethat is a clinical trial agreement, partnership, strategic alliance clinical study agreement or similar arrangement (including any franchising agreement); (hxv) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries (A) that is a collective bargaining agreement or (B) with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000labor organization; (ixvi) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to that prohibits the payment of dividends or any other distribution distributions in respect of the capital stock of the Company or any of its Subsidiaries, the pledging of the capital stock; (k) Contracts containing covenants purporting to restrict stock or other equity interests of the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s issuance of any guaranty by the Company or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (lxvii) Contracts which are relating to the disposition or acquisition of material assets or any ownership interest in any Entity; (xviii) requiring payment by or to the Company or any of its Subsidiaries and after the date of this Agreement in excess of $500,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions), (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company or any of its Subsidiaries, (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which restrict the Company or any of its Subsidiaries from disclosing has continuing obligations to develop or market any information concerning product, technology or obtained service, or any agreement pursuant to which the Company or any of its Subsidiaries has continuing obligations to develop any Intellectual Property that will not be owned, in whole or in part, by the Company or (D) any Contract to license any patent, trademark registration, service mark registration, trade name or copyright registration to or from any third party to manufacture or produce any product, service or technology of the Company or any of its Subsidiaries or any Contract to sell, distribute or commercialize any products or service of the Company or any of its Subsidiaries, in each case, except for Company Contracts entered into in the Ordinary Course of Business; (xix) with any Person, including any financial advisor, broker, finder, investment banker or other Person Person, providing advisory services to the Company or any of its Subsidiaries in connection with the Contemplated Transactions; or (xx) that was entered into since January 1, 2021 and was entered into with any present or former officer, director or employee of the Company or any of its Subsidiaries (other than Contracts indemnification agreements, or any Employee Plans entered into in the ordinary course of business); ) or (mB) Contracts is the type of Contract that would be required to be disclosed under Item 404 of Regulation S-K under of the Securities Exchange Act;. (nb) Contracts required The Company has delivered or made available to be filed under Item 601(b)(10) Aspen accurate and complete copies of Regulation S-K under the Securities Act; and (o) all Company Material Contracts, including all amendments thereto. There are no Company Material Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess written form. The Company has not, nor to the Company’s Knowledge, as of $10,000 individually and $50,000 in the aggregate. Each date of this Agreement has any other party to a Company 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 Company Material Contract and SEC in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages which would reasonably be expected to have a Company Material Adverse Effect. As to the Company, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect, is a valid and binding obligation of the Company or the Subsidiary of the Company party thereto and, subject to the Company’s KnowledgeEnforceability Exceptions. No Person is renegotiating, each other party thereto, except as would not reasonably be expected to (x) result in or has a material loss or liability right pursuant to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations terms of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s Knowledge, on the part of any other party to any Company Material Contract thatto change, with any material amount paid or payable to the giving of notice or the lapse of time or both, would become a default or event of default Company under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in a any other material loss term or liability to the provision of any Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsMaterial Contract.

Agreements, Contracts and Commitments. Except Item 3.17 of the Seller Disclosure Schedule sets forth a complete and correct list of each existing contract, agreement or commitment of Xxx-Xxxxxx (other than the agreements described in the definition of Permitted Exceptions set forth in Section 3.13(2)): (1) upon which any substantial part of its business is dependent or which, if breached, would be reasonably likely to have a Material Adverse Effect on Xxx-Xxxxxx; (2) which provides for Contracts filed as exhibits aggregate future payments of more than $5,000, except for purchase orders or sale orders arising in the ordinary and usual course of business, in which case they are listed only if any party thereto is obligated to Company SEC Documents make payments pursuant to Item 601 of Regulation S-K thereto aggregating more than $25,000; (3) which extends for more than one hundred eighty (180) days from the date hereof and listed is not cancelable by either party on the exhibit index to the Company’s annual report on Form 10-K 30 days' notice or less; (4) which provides for the fiscal year ended December 31sale after the date hereof and other than in the ordinary course of business, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 of the Company’s Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and of the following nature (collectively, the “Company Material Contracts”): (a) Contracts (other than Benefit Plans, which are covered under Section 4.15) with any current or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be renderedassets; (b5) Contracts that which relates to the employment compensation, retirement or termination of the services of any officer or employee or former officer or employee, including bonus, incentive, pension, profit-sharing, hospitalization, insurance, deferred compensation, retirement, stock option or stock purchase plans or similar plans providing employee benefits for or with respect to any officer or employee; (x6) which contains covenants pursuant to which any person or entity has agreed not to compete with the business of any other Person or not to disclose to others information concerning such other Person; (7) which relates to the sale or other disposition of goods or services and which (i) involve the performance by the Company terms or any of its Subsidiaries of services of an amount quantities exceeding normal commitments or value in excess of $100,000 annually after June 30, 2005 or (y) involve payments by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable by the Company on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letter); (c) Contracts (i) for the sale of assets of the Company or any of its Subsidiaries involving aggregate consideration of $50,000 or more (other than licenses of Products in the ordinary course of business), or (ii) for contain special pricing terms or other provisions which would prohibit or limit the grant ability of Buyer to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its Subsidiarieseffect price increases; (d) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by 8) pursuant to which title to any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice);Xxx-Xxxxxx may be encumbered; or (e9) Contracts (including loan agreementswhich relates to any partnership, credit agreements, notes, bonds, mortgages joint venture or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts arrangement involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to from any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures enterprise. Each of the Company and/or its Subsidiaries with foregoing is referred to in this Agreement as a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. "Material Contract." Each Company Material Contract and SEC Contract is in full force and effecteffect and there has not occurred, is a valid and binding obligation of the Company or the Subsidiary of the Company party thereto andwith respect to any such Material Contract, to the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no any default or event of default or eventdefault, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s Knowledge, on the part of any other party to any Company Material Contract thatwhich, with the giving of or without due notice or with the lapse of time or both, would become constitute a default or event of default under on the part of Xxx-Xxxxxx or, to the best knowledge of Seller, any Company other party thereto, except where such default or event of default would not have a Material Adverse Effect on Xxx-Xxxxxx. Complete copies of each Material Contract or SEC Contract that could reasonably be expected have been delivered to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsBuyer.

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to (a) Section 3.12(a) of the Disclosure Schedules lists each of the following contracts of the Company SEC Documents pursuant to Item 601 (such contracts, together with all contracts concerning the occupancy, management or operation of Regulation S-K and any Leased Real Property (including without limitation, brokerage contracts) listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as otherwise disclosed in Section 4.12 3.12(a) of the Company’s Disclosure LetterSchedules and all Material Company IP Contracts, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and of the following nature (collectively, the being “Company Material Contracts”): (ai) Contracts (other than Benefit Plans, which are covered under Section 4.15) with any current or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be rendered; (b) Contracts that (x) involve the performance by the Company or any of its Subsidiaries of services of an amount or value in excess of $100,000 annually after June 30, 2005 or (y) involve payments by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable by the Company on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) each Contract of the Company Disclosure Letter); (c) Contracts (i) for the sale of assets of the Company or any of its Subsidiaries involving aggregate consideration of $50,000 or more (other than licenses of Products in the ordinary course of business), or (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its Subsidiaries; (d) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (e) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice; (ii) all Contracts that require the Company to purchase its total requirements of any fiscal yearproduct or service from a third party or that contain “take or pay” provisions; (iii) all Contracts the primary purpose of which is the indemnification by the Company of any Person or the assumption of any Tax, environmental or in other Liability of any Person; (iv) all Contracts entered into during the aggregate capital expenditures three (3) years prior to the date hereof or that have outstanding payment obligations by the Company and relate to the acquisition or disposition of any Person by the Company, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise); (v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Company is a party; (vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and which are not cancellable without material penalty or without more than ninety (90) days’ notice; (vii) except for Contracts relating to trade payables, all Contracts relating to Indebtedness (including, without limitation, guarantees) of the Company; (viii) all Contracts with any Governmental Authority to which the Company is a party (“Government Contracts”); (ix) all Contracts that limit or purport to limit the ability of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete in any line of business or with any Person or conduct in any business geographic area or line during any period of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliatestime; (lx) any Contracts to which are the Company is a party that provide for any joint venture, partnership or similar arrangement by the Company; (xi) all Contracts between or among the Company on the one hand and Seller or any Affiliate of Seller (other than the Company) on the other hand; (xii) all collective bargaining agreements or Contracts with any labor union to which the Company is a party; and (xiii) any other Contract that is material to the Company or any of its Subsidiaries and which restrict not previously disclosed pursuant to this Section 3.12. (b) Each Material Contract is valid and binding on the Company or any of in accordance with its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually terms and $50,000 in the aggregate. Each Company Material Contract and SEC Contract is in full force and effect, is a valid and binding obligation of subject to the Enforceability Exceptions. There are no Material Contracts that are not in written form. The Company or the Subsidiary of the Company party thereto andhas not, nor to the Company’s Knowledge, each as of the date of this Agreement, has any other party theretoto a Material Contract, materially breached, violated or defaulted under, or received notice that it materially breached, violated or defaulted under, any of the terms or conditions of any Material Contract, except as would not not, individually or in the aggregate, reasonably be expected likely to (x) result in a be material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s Knowledge. In all material respects, on all obligations under the part terms of any other party to any Company each Material Contract thatrequired to be performed by the Company has been performed to the extent such obligations to perform have accrued, and no act or omission by the Company has occurred or failed to occur which, with the giving of notice or notice, the lapse of time or both, both would become constitute a default under, such Material Contract, except as it would not, individually or event of default under any Company Material Contract or SEC Contract that could in the aggregate, reasonably be expected likely to (x) result in a be material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsCompany.

Agreements, Contracts and Commitments. (a) Except for Contracts filed that are terminable by the Companies, their Subsidiaries or Seller (as exhibits applicable) upon sixty (60) days’ notice or less without penalty and further except for any Employee Benefit Plans, Section 6.07(a) of the Company Disclosure Letter sets forth as of the date of this Agreement, a complete, accurate and current list of any Contract of the following type to Company SEC Documents pursuant which any of the Companies or their Subsidiaries, or solely with respect to Item 601 of Regulation S-K subsections (xxiii) and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”xxiv) Seller (as applicable), or as disclosed in Section 4.12 of the Company’s Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and of the following nature (collectively, collectively the “Company Material Contracts”): (ai) Contracts (other than Benefit Plans, which are covered under Section 4.15) with any current Contract providing for aggregate annual payments to or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be rendered; (b) Contracts that (x) involve the performance by the Company Companies or any of its Subsidiaries of services of an amount or value in excess of $100,000 annually after June 30, 2005 or (y) involve payments by the Company or any of its their Subsidiaries in excess of One Hundred Thousand Dollars ($100,000 annually after June 30100,000), 2005, unless terminable by the Company on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letter)Gaming Equipment Contracts; (cii) Contracts (i) for any Contract which may not be terminated by the sale of assets of the Company Companies or any of its their Subsidiaries involving aggregate consideration within twelve (12) months from the date of $50,000 or more (other than licenses of Products in this Agreement without the ordinary course of business), or (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company Companies or any of its Subsidiariestheir Subsidiaries being obligated to pay any penalty, premium or additional payments in amounts greater than One Hundred Thousand Dollars ($100,000) in respect of such Contract; (diii) Contracts for the acquisitionany dealer, by merging or consolidating withdistributor, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same sales representative or similar effectContract under which any third party is authorized to sell, license, sublicense, lease, distribute, market or take orders for any business Company Offering or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice)Company Intellectual Property; (eiv) Contracts any Contract that (including loan agreements, credit agreements, notes, bonds, mortgages A) provides for the assignment or other agreements, indentures transfer to or instruments) relating to indebtedness for borrowed money, letters of credit, by the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company Companies or any of its their Subsidiaries from or its or their affiliates from competing with or otherwise legally or contractually restrainingto any other Person, limiting or impeding of any ownership interest in Intellectual Property; (B) includes any grant of an Intellectual Property License to any other Person by the Company’s Companies or any of its their Subsidiaries’ ability ; or (C) includes any grant of an Intellectual Property License to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries Companies or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from by any other Person (other than than, with respect to this subsection (C) only, Non-Negotiated Vendor Contracts entered into in the ordinary course of businessand Gaming Equipment Contracts that are not otherwise required to be listed as Material Contracts); (mv) Contracts required any Contract that relates to be disclosed under Item 404 of Regulation S-K under the Securities Acta partnership, joint venture or joint development arrangement with any other Person; (nvi) any Contract that grants to any Person the right to occupy (except pursuant to reservations made in the Ordinary Course of Business) any portion of the Real Property; (vii) any Contract providing for aggregate payments to or by the Companies or their Subsidiaries in excess of One Hundred Thousand Dollars ($100,000) with respect to advertising or traffic distribution; (viii) any Contract providing for aggregate payments to or by the Companies or their Subsidiaries in excess of One Hundred Thousand Dollars ($100,000) with respect to any Company Offerings with any of the Companies or their Subsidiaries customers or clients other than (A) Contracts required on the Companies’ or their Subsidiaries’ standard, unmodified form of member, user, customer or client agreement as made available to Buyer or (B) Gaming Equipment Contracts; (ix) any Contract that restricts the Companies or any of their Subsidiaries (A) from participating or competing in any line of business, market or geographic area, (B) from freely setting prices and other terms, including any Contract that incorporates most favored customer pricing, or (C) from soliciting potential employees, consultants, contractors or other suppliers or customers; (x) any Contract under which the Companies or any of their Subsidiaries grants any exclusive rights, noncompetition rights, rights of refusal or rights of first negotiation to any Person; (xi) any Contract that following Closing would or would purport to: (A) require Buyer or any of its Affiliates (other than the Companies and their Subsidiaries) to grant any Intellectual Property License; (B) restrict Buyer or any of its Affiliates (other than the Companies or their Subsidiaries) from performing any of the activities listed in Section 6.06(a)(ix)(A)-(C); or (C) require Buyer or any of its affiliates (other than the Companies or their Subsidiaries) to grant or be filed bound by any exclusive rights, noncompetition rights, rights of refusal or rights of first negotiation to any Person; (xii) any other Contract of guarantee, support, assumption or endorsement of, or any similar commitment with respect to, the obligations, Liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other Person, other than Non-Negotiated Vendor Contracts or Gaming Equipment Contracts; (xiii) any settlement agreement (including any agreement under Item 601(b)(10which any employment-related claim is settled) entered into since January 1, 2013 or that includes any continuing material obligation of Regulation Sthe Companies or their Subsidiaries; (xiv) all partnership agreements, limited liability company agreements and joint venture agreements relating to the Companies or any of their Subsidiaries; (xv) any Contract with a Governmental Entity; (xvi) any Contract that is a license of Intellectual Property and requires annual payments in excess of One Hundred Fifty Thousand Dollars ($150,000), other than with respect to commercially available software products under standard end-K user, “shrink wrap,” “click-to-accept” or similar object code license agreements; (xvii) any Contract pursuant to which any Company has created, incurred, assumed or guaranteed Indebtedness for borrowed money in excess of Two Hundred and Fifty Thousand Dollars ($250,000); (xviii) any Contract with any shareholder or member of Seller or any of its Affiliates; (xix) any Contract that involves the sharing of profits with other Persons or the payment of royalties to any other Person, excluding Non-Negotiated Vendor Contracts and Gaming Equipment Contracts; (xx) any Contract imposing any support, maintenance or service obligations on the Companies or any of their Subsidiaries that has been entered into outside of the Ordinary Course of Business; (xxi) any Contract providing for the development of any content, technology or Intellectual Property, independently or jointly, in each case, by or for the Companies or any of their Subsidiaries that is material to the conduct of the Companies’ or any of their Subsidiaries’ Business as it is currently conducted; (xxii) any Contract relating to the acquisition or sale of a business (or all or substantially all of the assets thereof) by the Companies or any of their Subsidiaries; (xxiii) the top five Contracts that to Seller’s Knowledge, are the most current master (or similar) agreements with any gaming device manufacturer, based on the percentage of floor occupancy for devices located at either of the Casinos and that are supplied or leased under the Securities Actsuch master (or similar) agreements; and (oxxiv) the top three IT Contracts that contain minimum annual purchase obligations (take-or-pay) to which Seller is a party relating to products or that contain penalties or repricing provisions (e.g.services used primarily by the Companies, “retroactive discounts”) if certain minimum quantities are not purchased which require payments by Seller in excess of One Hundred Thousand Dollars ($10,000 individually and $50,000 in the aggregate. 100,000), other than Gaming Equipment Contracts. (b) Each Company Material Contract listed in Section 6.07 of the Company Disclosure Letter is a valid and SEC Contract is in full force and effectbinding obligation of a Company or a Subsidiary thereof and, to Seller’s Knowledge, is a valid and binding obligation of the Company or the Subsidiary of the Company party thereto and, to the Company’s Knowledge, each other party thereto, and is in full force and effect and enforceable by such Company or such Subsidiary in accordance with its terms, except as would not reasonably such enforceability may be expected to limited by (xi) result applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereinafter in a effect affecting creditors’ rights generally and (ii) general principles of equity. As of the date of this Agreement, there is no material loss breach or liability to the violation of or default by such Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any such Subsidiary or, to the CompanySeller’s Knowledge, on the part of by any other party under any of the Material Contracts. Seller has made available to Buyer a true, correct and complete copy of all Material Contracts listed in Section 6.07(a) of the Company Disclosure Letter, together with all amendments, waivers or other changes thereto. No event has occurred with respect to the Companies or their Subsidiaries or, to Seller’s Knowledge, any Company Material Contract thatother party, which, with the giving of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in constitute a material loss breach, violation or liability default of, or give rise to the Company a right of termination, modification, or its Subsidiaries or (y) interfere in a material manner with the business or operations acceleration under, any of the Company and its Subsidiaries or the ownership of their properties or assetsMaterial Contracts.

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to (a) The Company SEC Documents pursuant to Item 601 Disclosure Schedule lists each of Regulation S-K the following contracts and agreements (including, without limitation, oral and informal arrangements) of the Company and its Subsidiaries (such contracts and agreements, together with all contracts, agreements, leases and subleases concerning the management or operation of any real property (including, without limitation, brokerage contracts) listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as otherwise disclosed in Section 4.12 of the Company’s Disclosure Letter, neither the Company nor Disclosure Schedule to which the Company or any of its Subsidiaries is a party and all agreements relating to or bound by any Contract currently Intellectual Property set forth in effect and of the following nature (collectivelyCompany Disclosure Schedule, the “being "Company Material Contracts”"): (ai) Contracts (each contract, agreement, invoice, purchase order and other than Benefit Plansarrangement, which are covered under Section 4.15) for the purchase of inventory, spare parts, other materials or personal property with any current supplier or former, director for the furnishing of services to the Company or officer of, any of its Subsidiaries or natural person consultant otherwise related to the business of or to, the Company or any of its Subsidiaries under which the terms of which: (A) the Company or any of its Subsidiaries may have material ongoing is likely to pay or future otherwise give consideration of more than $25,000 in the aggregate during the calendar year ended December 31, 2005, (B) the Company or any of its Subsidiaries is likely to pay or otherwise give consideration of more than $50,000 in the aggregate over the remaining term of such contract, or (C) cannot be cancelled by the Company or any of its Subsidiaries, as applicable, without penalty or further payment obligations for services rendered or to be renderedand without more than 30 days' notice; (bii) Contracts that (x) involve each contract, agreement, invoice, sales order and other arrangement, for the performance sale of inventory or other personal property or for the furnishing of services by the Company or any of its Subsidiaries which: (A) is likely to involve consideration of services more than $25,000 in the aggregate during the calendar year ended December 31, 2005, (B) is likely to involve consideration of an amount or value more than $50,000 in excess the aggregate over the remaining term of $100,000 annually after June 30the contract, 2005 or (yC) involve payments cannot be cancelled by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30Subsidiaries, 2005as applicable, unless terminable by the Company on not without penalty or further payment and without more than 30 days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letter)days' notice; (ciii) Contracts (i) for the sale of assets of all broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing, consulting and advertising contracts and agreements to which the Company or any of its Subsidiaries involving aggregate consideration of $50,000 is a party; (iv) all management contracts and contracts with independent contractors or more consultants (other than licenses of Products in or similar arrangements) to which the ordinary course of business), or (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets Company or any material asset of its Subsidiaries is a party and which are not cancelable without penalty or further payment and without more than 30 days' notice; (v) all contracts and agreements relating to indebtedness of the Company or any of its Subsidiaries; (dvi) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by all contracts and agreements with any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (e) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating Governmental Authority to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding is a party; (vii) all contracts and agreements that limit the Company’s ability of the Company or any of its Subsidiaries’ ability Subsidiaries to compete in any line of business or with any Person or conduct in any business geographic area or line during any period of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliatestime; (lviii) Contracts all contracts and agreements between or among the Company or any affiliate or Subsidiary of the Company; (ix) all contracts and agreements for providing benefits under any Benefit Plan (as hereinafter defined); and (x) all other contracts and agreements, whether or not made in the ordinary course of the business, which are material to the Company or any of its Subsidiaries or the conduct of their respective businesses, or the absence of which would have a Company Material Adverse Effect. For purposes of this Agreement, the term "lease" shall include any and which restrict all leases, subleases, sale/leaseback agreements or similar arrangements. (b) Except as disclosed in the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g.Disclosure Schedule, “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each each Company Material Contract Contract: (i) is valid and SEC Contract binding on the respective parties thereto and is in full force and effect, is a valid effect and binding obligation of the Company or the Subsidiary of the Company party thereto and, to the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (xii) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the upon consummation of the transactions contemplated hereby) on by this Agreement, except to the part of extent that any consents set forth in the Company Disclosure Schedule are not obtained, shall continue in full force and effect without penalty or other adverse consequence. Neither the Company nor any Subsidiary orof its Subsidiaries is in breach of, to or default under, any Company Material Contract, as applicable. (c) Except as disclosed in the Company’s KnowledgeCompany Disclosure Schedule, on the part of any no other party to any Company Material Contract thatis in breach thereof or default thereunder. (d) Except as disclosed in the Company Disclosure Schedule, there is no contract, agreement or other arrangement granting any Person any preferential right to purchase, other than in the ordinary course of the business consistent with past practice, any of the giving properties or assets of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in a material loss or liability to the Company or any of its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsSubsidiaries.

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to (a) The Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 Disclosure Letter lists each of the Company’s following contracts and agreements (including, without limitation, oral and informal arrangements) of the Company and its Subsidiaries (such contracts and agreements listed in the Company Disclosure Letter, neither together with all contracts, agreements, leases and subleases concerning the management or operation of any real property (including, without limitation, brokerage contracts) listed in the Company nor Disclosure Letter to which the Company or any of its Subsidiaries is a party and all agreements relating to or bound by any Contract currently Intellectual Property set forth in effect and of the following nature (collectivelyCompany Disclosure Letter, the being “Company Material Contracts”): (ai) Contracts (each contract, agreement, invoice, purchase order and other than Benefit Plansarrangement, which are covered under Section 4.15) for the purchase of inventory, spare parts, other materials or personal property with any current supplier or former, director for the furnishing of services to the Company or officer of, any of its Subsidiaries or natural person consultant otherwise related to the business of or to, the Company or any of its Subsidiaries under which the terms of which: (A) the Company or any of its Subsidiaries may have material ongoing is likely to pay or future otherwise give consideration of more than $25,000 in the aggregate during the calendar year ended December 31, 2006, (B) the Company or any of its Subsidiaries is likely to pay or otherwise give consideration of more than $50,000 in the aggregate over the remaining term of such contract, or (C) cannot be cancelled by the Company or any of its Subsidiaries, as applicable, without penalty or further payment obligations for services rendered or to be renderedin excess of $5,000 and without more than thirty (30) days’ notice; (bii) Contracts that (x) involve each contract, agreement, invoice, sales order and other arrangement, for the performance sale of inventory or other personal property or for the furnishing of services by the Company or any of its Subsidiaries which: (A) is likely to involve consideration of services more than $25,000 in the aggregate during the calendar year ended December 31, 2006, (B) is likely to involve consideration of an amount or value more than $50,000 in excess the aggregate over the remaining term of $100,000 annually after June 30the contract, 2005 or (yC) involve payments cannot be cancelled by the Company or any of its Subsidiaries Subsidiaries, as applicable, without penalty or further payment in excess of $100,000 annually after June 30, 2005, unless terminable by the Company on not 5,000 and without more than 30 days notice without material penalty thirty (other than employment and consulting arrangements entered into in the ordinary course of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n30) of the Company Disclosure Letter)days’ notice; (ciii) Contracts (i) for the sale of assets of all broker, distributor, dealer, manufacturer's representative, franchise, agency, sales promotion, market research, marketing, consulting and advertising contracts and agreements to which the Company or any of its Subsidiaries involving aggregate consideration of $50,000 is a party; (iv) all management contracts and contracts with independent contractors or more consultants (other than licenses of Products in or similar arrangements) to which the ordinary course of business), or (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets Company or any material asset of its Subsidiaries is a party and which are not cancelable without penalty or further payment and without more than thirty (30) days’ notice; (v) all contracts and agreements relating to indebtedness of the Company or any of its Subsidiaries; (dvi) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by all contracts and agreements with any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practice); (e) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating Governmental Authority to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding is a party; (vii) all contracts and agreements that limit the Company’s ability of the Company or any of its Subsidiaries’ ability Subsidiaries to compete in any line of business or with any Person or conduct in any business geographic area or line during any period of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliatestime; (lviii) Contracts all contracts and agreements between or among the Company or any affiliate or Subsidiary of the Company; (ix) all contracts and agreements for providing benefits under any Benefit Plan (as hereinafter defined); and (x) all other contracts and agreements, whether or not made in the ordinary course of the business, which are material to the Company or any of its Subsidiaries or the conduct of their respective businesses. For purposes of this Agreement, the term “lease” shall include any and which restrict all leases, subleases, sale/leaseback agreements or similar arrangements. (b) Except as disclosed in the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g.Disclosure Letter, “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each each Company Material Contract Contract: (i) is valid and SEC Contract binding on the respective parties thereto and is in full force and effect, is a valid and binding obligation of . Neither the Company nor any of its Subsidiaries is in breach of, or the Subsidiary of default under, any Company Material Contract, as applicable. (c) Except as disclosed in the Company party thereto andDisclosure Letter, to the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s Knowledge, on the part of any other party to any Company Material Contract thatis, to the knowledge of the Company, in material breach thereof or default thereunder. (d) Except as disclosed in the Company Disclosure Letter, there is no contract, agreement or other arrangement granting any Person any preferential right to purchase, other than in the ordinary course of the business consistent with past practice, any of the giving properties or assets of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in a material loss or liability to the Company or any of its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsSubsidiaries.

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 of the Company’s Disclosure Letter, neither a) Neither the Company nor any of its Subsidiaries is a party to or bound by any Contract currently in effect and of the following nature (collectively, the “Company Material Contracts”):by: (ai) Contracts any lease or sublease (whether of real or personal property) providing for annual rentals of $50,000 or more; (ii) any agreement for the purchase or license of materials, supplies, goods, services, equipment or other than Benefit Plans, which are covered under Section 4.15tangible or intangible assets providing for either (A) with any current or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which annual payments by the Company or its Subsidiaries may have material ongoing of $50,000 or future payment obligations for services rendered more or to be rendered(B) aggregate payments by the Company or its Subsidiaries of $100,000 or more; (biii) Contracts that any license, sales, distribution or other similar agreement (xother than agreements with end user customers entered into in the ordinary course of business) involve providing for the performance sale or license by the Company or any of its Subsidiaries of services software, materials, supplies, goods, services, equipment or other assets that provides for either (A) annual payments to the Company or its Subsidiaries of an amount $50,000 or value in excess more or (B) aggregate payments to the Company and the Subsidiaries of $100,000 annually after June 30or more; (iv) any partnership, 2005 joint venture, alliance, agency, dealer, sales representative, marketing, distribution, original equipment manufacturer, value added reseller, remarketer, joint marketing, channel partner or other similar agreement or arrangement; (yv) involve payments any agreement, contract or commitment relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise); (vi) any agreement relating to indebtedness for borrowed money or the Company deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any of its Subsidiaries in excess of asset), except any such agreement with an aggregate outstanding principal amount not exceeding $100,000 annually after June 30, 2005, unless terminable by the Company 50,000 and which may be prepaid on not more than 30 days notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course payment of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letter)any penalty; (cvii) Contracts (i) except for the sale of assets of end-user licenses granted to customers by the Company or any of its Subsidiaries involving aggregate consideration of $50,000 or more (other than licenses of Products in the ordinary course of business), or (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its Subsidiaries; (d) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practicepractices, any material option (other than employee stock options), license or franchise; (eviii) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages any software development agreement or other agreements, indentures agreement for development or instruments) relating to indebtedness authorship of products and services for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any of the foregoing but in any event excluding trade payables arising in the ordinary course of business consistent with past practice, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries other than agreements with employees and consultants entered into by Company or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding Subsidiaries in the Company’s ordinary course of business; (ix) any agreement that limits the freedom of the Company or any of its Subsidiaries’ ability Subsidiary to compete in any line of business or with any Person or conduct in any business or line of business geographic area or which restrict any other Person from competing with could reasonably be expected to so limit the Company, any freedom of its Subsidiaries the Company or any of its or their affiliatesSubsidiary after the Effective Time; (lx) Contracts which any mortgages, indentures, loans or credit agreements, security agreements or other written agreements or instruments relating to the borrowing of money or extension of credit, other than those mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments that are not, individually or in the aggregate, material to the Company or any Subsidiary of its Subsidiaries and which restrict the Company; (xi) any agreement with any Affiliate of the Company (or any Subsidiary), with any director or officer of the Company or any of its Subsidiaries from disclosing Subsidiaries, or with any information concerning “associate” or obtained from any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the 0000 Xxx) of any such director or officer; or (xii) other than Employee Agreements and standard offer letters, any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization; (xiii) any agreement with severance, change in control or similar arrangements, that will result in any obligation (absolute or contingent) of the Company or any Subsidiary to make any payment as a result of the consummation of the Merger, termination of employment or both; (xiv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, as a result of the consummation of the Merger or the value of any of the benefits of which will be calculated on the basis of the Merger; or (xv) any other Person (agreement, commitment, arrangement or plan not made in the ordinary course of business that is material to the Company and its Subsidiaries, taken as a whole other than Contracts agreements with end user customers entered into in the ordinary course of business);, involving annual payments to the Company and its Subsidiaries in excess of $100,000. (mb) Contracts Each agreement, contract, plan, lease, arrangement or commitment disclosed or required to be disclosed under Item 404 pursuant to this Section 4.11 is referred to as a “Material Agreement” and is a valid and binding agreement of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under Company or its Subsidiaries, as the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g.case may be, “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each Company Material Contract and SEC Contract is in full force and effect, is a valid and binding obligation of effect with respect to the Company or the any Subsidiary of the Company party thereto and, to the Knowledge of the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to and none of the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations Company, any Subsidiary of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Knowledge of the Company’s Knowledge, on the part of any other party thereto is in default or breach in any material respect under the terms of any such Material Agreement, and, to any Company Material Contract the Knowledge of the Company, no event or circumstance has occurred that, with the giving of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in constitute a material loss or liability event of default thereunder. True and complete copies of each such agreement, have been made available to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsParent.

Agreements, Contracts and Commitments. Article 18 Except for Contracts filed as exhibits provided to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on Parent in the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31Disclosure Binder delivered herewith, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 of the Company’s Disclosure Letter, neither the Company nor any of its Subsidiaries is not a party to or bound by any Contract currently in effect and of the following nature (collectively, the “Company Material Contracts”):by: (ai) Contracts any lease or sublease (other than Benefit Plans, which are covered under Section 4.15whether of real or personal property) with any current providing for annual rentals of $25,000 or former, director or officer of, or natural person consultant of or to, the Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be renderedmore; (bii) Contracts that (x) involve any agreement for the performance by the Company purchase or any license of its Subsidiaries of services of an amount materials, supplies, goods, services, equipment or value in excess of $100,000 annually after June 30, 2005 other tangible or (y) involve intangible assets providing for either Article 19 annual payments by the Company or any of its Subsidiaries in excess of $100,000 annually after June 30, 2005, unless terminable 50,000 or more or Article 20 aggregate payments by the Company of $50,000 or more; (iii) any license, sales, distribution or other similar agreement providing for the sale or license by the Company of materials, supplies, goods, services, equipment or other assets that provides for either Article 21 annual payments to the Company of $50,000 or more or Article 22 aggregate payments to the Company of $50,000 or more; (iv) any partnership, joint venture or other similar agreement or arrangement, other than those related to Salvador Systems LLC; (v) any agreement, contract or commitment relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise); (vi) any agreement relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), except any such agreement with an aggregate outstanding principal amount not exceeding $50,000 and which may be prepaid on not more than 30 days days’ notice without material penalty (other than employment and consulting arrangements entered into in the ordinary course payment of business and the Change of Control Agreements and Severance Agreements disclosed in Section 4.12(n) of the Company Disclosure Letter)any penalty; (cvii) Contracts (i) except for the sale of assets of agreements by the Company or any of its Subsidiaries involving aggregate consideration of $50,000 or more (other than licenses of Products in the ordinary course of business), or (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of the Company or any of its Subsidiaries; (d) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies with customers in the ordinary course of business consistent with past practicepractices, any option (other than employee stock options), license, franchise or similar agreement; (eviii) Contracts any alliance, agency, dealer, sales representative, marketing, distribution, original equipment manufacturer, remarketer, joint marketing, channel partner or other similar agreement that does not provide for termination without compensation upon no more than 30 days notice; (including loan agreementsix) any development or collaboration agreement or other agreement for development of products and services for the Company; (x) any agreement that limits the freedom of the Company to compete in any line of business or with any Person or in any area or which could reasonably be expected to so limit the freedom of the Company after the Effective Time; (xi) any mortgages, indentures, loans or credit agreements, notes, bonds, mortgages security agreements or other agreements, indentures agreements or instruments) instruments relating to indebtedness for borrowed money, letters the borrowing of money or extension of credit, other than those mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments that are not, individually or in the deferred purchase price aggregate, material to the Company; (xii) any agreement with any Affiliate of propertythe Company, conditional sale with any director or officer of the Company, or with any “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the 0000 Xxx) of any such director or officer; or (xiii) any employment or consulting agreement, contract or commitment with an employee or individual consultant or salesperson or consulting or sales agreement, contract or commitment with a firm or other organization other than as contemplated under this Agreement; (xiv) any employment or consulting agreement or any agreement with severance, change in control or similar arrangements, capital lease obligationsthat will result in any obligation (absolute or contingent) of the Company to make any payment as a result of the consummation of the Merger, obligations secured by a Lientermination of employment or both; (xv) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect the vesting of benefits of which will be accelerated, by the occurrence of any of the foregoing but in transactions contemplated by this Agreement or the value of any event excluding trade payables arising of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; or (xvi) any other agreement, commitment, arrangement or plan not made in the ordinary course of business consistent with past practicethat is material to the Company, intercompany indebtedness and immaterial leases for telephones, copy machines, facsimile machines and other office equipment); (f) Loans or advances to (other than advances to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments inincluding without limitation, any Person, other than agreement involving annual payments by any customer to the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into in the ordinary course of business); (m) Contracts required to be disclosed under Item 404 of Regulation S-K under the Securities Act; (n) Contracts required to be filed under Item 601(b)(10) of Regulation S-K under the Securities Act; and (o) Contracts that contain minimum annual purchase obligations (take-or-pay) or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are not purchased in excess of $10,000 individually and $50,000 in the aggregate. Each Company Material Contract and SEC Contract is in full force and effect, is a valid and binding obligation of the Company or the Subsidiary of the Company party thereto and, to the Company’s Knowledge, each other party thereto, except as would not reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary or, to the Company’s Knowledge, on the part of any other party to any Company Material Contract that, with the giving of notice or the lapse of time or both, would become a default or event of default under any Company Material Contract or SEC Contract that could reasonably be expected to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets150,000.

Agreements, Contracts and Commitments. Except for Contracts filed as exhibits to Company SEC Documents pursuant to Item 601 of Regulation S-K and listed on the exhibit index to the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2004 (“SEC Contracts”), or as disclosed in Section 4.12 a) Schedule 4.19(a) of the Company’s Company Disclosure LetterLetter sets forth a true, neither correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “Company nor any Material Contract” of its Subsidiaries the Group Companies shall mean each of the following Contracts to which a Group Company is a party to or bound by any Contract currently in effect and as of the following nature date hereof (collectively, the “Company Material Contracts”other than any Employee Benefit Plan): (ai) Contracts (other than Benefit Plans, which are covered under Section 4.15) with any current Contract or former, director purchase commitment reasonably expected to result in future payments to or officer of, or natural person consultant of or to, the by any Group Company or any of its Subsidiaries under which the Company or its Subsidiaries may have material ongoing or future payment obligations for services rendered or to be rendered; (b) Contracts that (x) involve the performance by the Company or any of its Subsidiaries of services of an amount or value in excess of $100,000 annually after 2,000,000 per annum; (ii) any Contract with (x) the top 10 customers of the Group Companies (the “Material Customers”) as measured by amounts received by the Group Companies on a consolidated basis for the 12-month period ended on December 31, 2020 and the 6-month period ended on June 30, 2005 or 2021 and (y) involve payments the top 10 suppliers of the Group Companies as measured by amounts paid by the Company or any of its Subsidiaries in excess of $100,000 annually after Group Companies on a consolidated basis for the 12-month period ended on December 31, 2020 and the 6-month period ended on June 30, 20052021 (the “Material Suppliers”), unless terminable by the Company on not more than 30 days notice without material penalty (in each case, other than employment and consulting arrangements purchase or service orders accepted, confirmed or entered into in the ordinary course of business; (iii) any Contract that purports to limit in any respect (A) the localities in which the Group Companies’ businesses may be conducted, (B) any Group Company from engaging in any line of business and or (C) any Group Company from developing, marketing or selling products or services, including any non-compete agreements or agreements limiting the Change ability of Control Agreements and Severance Agreements disclosed in Section 4.12(n) any of the Group Companies from soliciting customers or employees; (iv) any Contract memorializing any Interested Party Transactions (other than those employment agreements, confidentiality agreements, non-competition agreements (for the benefit of a Group Company) or any other agreement of similar nature entered into in the Ordinary Course with employees or technical consultants) providing for annual payments in an amount equal to or greater than $2,000,000; (v) any Contract in an amount equal to or greater than $2,000,000 that imposes obligations on any of the Group Companies to provide “most favored nation” pricing to any of its customers, or that contains any “take or pay” or minimum requirements with any of its suppliers, right of first refusal or other similar provisions with respect to any transaction engaged in by any of the Group Companies; (vi) any Contract that is related to the governance or operation of any material joint venture, partnership or similar arrangement, other than such contract solely between or among any of the Group Companies; (vii) any Contract for or relating to any borrowing of money by or from the Company Disclosure Letterin excess of $2,000,000 (excluding, for the avoidance of doubt, any intercompany arrangements solely between or among any of the Group Companies); (cviii) any Contract (A) providing for the grant of any preferential rights to purchase or lease any material asset of the Company; or (B) providing for any exclusive or preferred right to sell or distribute any material product or material service of the Group Companies taken as a whole; (ix) any obligation to register any Company Shares or other securities of the Group Companies with any Governmental Entity (other than ordinary course requirements of foreign applicable Legal Requirements related to the recording with an applicable Governmental Entity of the ownership of non-U.S. Group Companies); (x) any Contracts (i) for relating to the sale of any operating business of any Group Company or the acquisition by any Group Company of any operating business, whether by merger, purchase or sale of stock or assets or otherwise, in each case, for which any Group Company has any material outstanding payment obligations; (xi) any Contract for the use by any of the Company or Group Companies of any of its Subsidiaries involving aggregate consideration of tangible property where the annual lease payments are greater than $50,000 or more 500,000 (other than licenses any lease of Products vehicles, office equipment or operating equipment made in the ordinary course of business), or ) (ii) for the grant to any Person of any preferential rights to purchase any material amount of assets or any material asset of the “Material Company or any of its Subsidiaries; (d) Contracts for the acquisition, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner having the same or similar effect, any business or any Person or assets of any Person (other than the purchase of equipment, inventories and supplies in the ordinary course of business consistent with past practiceReal Property Leases”); (exii) Contracts (including loan agreements, credit agreements, notes, bonds, mortgages or other agreements, indentures or instruments) relating to indebtedness for borrowed money, letters of credit, the deferred purchase price of property, conditional sale arrangements, capital lease obligations, obligations secured by a Lien, or interest rate or currency hedging activities (including guarantees or other contingent liabilities in respect of any Contract under which any of the foregoing but in Group Companies: (A) obtains the right to use, or a covenant not to be sued under, any event excluding trade payables arising in material Intellectual Property from any third party (“Inbound License”), other than Incidental Inbound Licenses; or (B) grants the ordinary course of business consistent with past practiceright to use, intercompany indebtedness and immaterial leases for telephonesor a covenant not to be sued under, copy machines, facsimile machines and other office equipment); (f) Loans or advances any material Intellectual Property to any third party (other than advances non-exclusive licenses granted to employees in respect of travel and entertainment expenses in the ordinary course of business in amounts of $10,000 suppliers, vendors, distributors, contractors or less to any individual on any date of determination, and $50,000 in the aggregate on any date of determination), or investments in, any Person, other than the Company or a Subsidiary, or any Contracts relating to the making of any such loans, advances or investments or any Contracts involving a sharing of profits (except for bonus arrangements with employees entered into in the ordinary course of business consistent with past practice); (g) Contracts relating to any material joint venture, partnership, strategic alliance or similar arrangement (including any franchising agreement); (h) Contracts to be performed relating to capital expenditures of the Company and/or its Subsidiaries with a value in excess of $50,000 in any fiscal year, or in the aggregate capital expenditures of the Company and/or its Subsidiaries with a value in excess of $200,000; (i) Contracts relating to any material Company Permits; (j) Contracts which contain restrictions with respect to payment of dividends or any other distribution in respect of its capital stock; (k) Contracts containing covenants purporting to restrict the Company or any of its Subsidiaries or its or their affiliates from competing with or otherwise legally or contractually restraining, limiting or impeding the Company’s or any of its Subsidiaries’ ability to compete with any Person or conduct any business or line of business or which restrict any other Person from competing with the Company, any of its Subsidiaries or any of its or their affiliates; (l) Contracts which are material to the Company or any of its Subsidiaries and which restrict the Company or any of its Subsidiaries from disclosing any information concerning or obtained from any other Person (other than Contracts entered into customers in the ordinary course of business); (mxiii) Contracts required any Contract pursuant to be disclosed under Item 404 which any Group Company (i) provided material source code containing or embodying any Group Company Software to a third party (other than contractors providing services to the Group Companies with respect thereto in the ordinary course of Regulation S-K under the Securities Actbusiness) or (ii) granted a third party a contingent right to receive material source code containing or embodying any Group Company Software, whether pursuant to an escrow arrangement or otherwise; (nxiv) Contracts required to be filed under Item 601(b)(10) of Regulation Sany labor agreement, collective bargaining agreement, or any other labor-K under the Securities Actrelated agreements or arrangements with any labor union, labor organization, or works council or other employee representative bodies; and (oxv) Contracts any Contract that contain minimum annual purchase obligations (take-or-pay) creates guarantees or that contain penalties or repricing provisions (e.g., “retroactive discounts”) if certain minimum quantities are liens of any nature on the Group Companies’ assets not purchased in excess of $10,000 individually and $50,000 in the aggregate. ordinary course of business and in an amount equal to or greater than $2,000,000. (b) Each Company Material Contract and SEC Contract is in full force and effecteffect and represents a legal, is a valid and binding obligation of the Company or the Subsidiary of the applicable Group Company party thereto and, to the Knowledge of the Company’s Knowledge, each represents a legal, valid and binding obligation of the counterparties thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies. Neither the Company nor, to the Knowledge of the Company, any other party thereto, except as would not reasonably be expected to (x) result is in a material loss breach of or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assets. There exists no default or event of default or event, occurrence, condition or act (including the consummation of the transactions contemplated hereby) on the part of the Company or any Subsidiary orunder and, to the Knowledge of the Company’s Knowledge, on no event has occurred which with notice or lapse of time or both would become a material breach of or default under, any Company Material Contract, and to the part Knowledge of any other the Company, no party to any Company Material Contract thathas given any written notice of any claim of any such breach, with the giving of notice or the lapse of time or both, would become a default or event or has provided any formal written notice of default under any intention to terminate, any such Company Material Contract or SEC Contract that could reasonably be expected Contract. True, correct and complete copies of all Company Material Contracts have been made available to (x) result in a material loss or liability to the Company or its Subsidiaries or (y) interfere in a material manner with the business or operations of the Company and its Subsidiaries or the ownership of their properties or assetsSPAC.