Common use of Company Agreements Clause in Contracts

Company Agreements. (a) Section 4.12(a) of the Company Disclosure Letter lists as of the date of this Agreement each of the following Company Agreements (collectively, the “Company Material Agreements”): (i) any mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money by the Company; (ii) any guaranty, direct or indirect, primary or secondary, by the Company of any obligation for borrowings or otherwise, excluding those made in the Ordinary Course; (iii) any Company Agreement providing for the grant of any preferential rights to purchase or lease any of the material assets of the Company; (iv) any Company Agreement providing for any obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons other than in the Ordinary Course; (v) any Company Agreement that is a collective bargaining agreement with any labor union; (vi) any Company Agreement providing for any lease or similar arrangement for the use by the Company of personal property involving payments of in excess of $175,000 per annum that is not cancellable within 30 days without payment of any premium or penalty; (vii) any Company Agreement with a term in excess of one year or providing for aggregate payments in excess of $175,000 that is not cancellable within 30 days without payment of any premium or penalty; (viii) any Company Agreement that contains a non-competition provision restricting the business of the Company (or, at any time after the consummation of the Closing, the Purchaser or any of its Affiliates) or that grants the other party or any third Person “most favored nation” status; (ix) any Company Agreement relating to the acquisition or disposition of any material amount of assets outside of the Ordinary Course; and (x) any Company Agreement that is a partnership, joint venture or similar agreement. (b) Copies of all written Company Material Agreements have been delivered or otherwise made available to the Purchaser prior to the date of this Agreement. (c) With such exceptions as, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect on the Company: (i) all of the Company Agreements are in full force and effect and are valid and binding on and enforceable against the Company in accordance with their terms and, to the Knowledge of the Company, on and against the other parties thereto, except as enforceability may be limited by the effect of any applicable Law of general application relating to bankruptcy, reorganization, insolvency, moratorium or similar Law affecting creditors’ rights or relief of debtors generally, and the effect of general principles of equity, including general principles of equity governing specific performance, injunctive relief and other equitable remedies (regardless of whether enforceability is considered in a proceeding in equity or at law); (ii) the Company is not, and, to the Knowledge of the Company, no other party to any Company Agreement is, in breach of, or default under, any Company Agreement and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a breach of, or default under, any Company Agreement; and (iii) the Company has not given to or received from any other Person any written notice or other written communication regarding any actual or alleged violation or breach or, or default under, any Company Agreement.

Company Agreements. (a) Section 4.12(a) To the Knowledge of the Company Disclosure Letter Member, Schedule 3.11(a) lists as of the date of this Agreement each of the following Company Agreements (collectively, the “Company Material Agreements”): Agreement (i) any mortgage, indenture, note, installment obligation that provides for payments by or other instrument, agreement or arrangement for or relating to any borrowing of money by the Company; (ii) any guaranty, direct or indirect, primary or secondary, by the Company of any obligation for borrowings or otherwise, excluding those made in the Ordinary Course; (iii) any Company Agreement providing for the grant of any preferential rights to purchase or lease any of the material assets of the Company; (iv) any Company Agreement providing for any obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons other than in the Ordinary Course; (v) any Company Agreement that is a collective bargaining agreement with any labor union; (vi) any Company Agreement providing for any lease or similar arrangement for the use by the Company of personal property involving payments of in excess of $175,000 per annum that is not cancellable within 30 days without payment of any premium 20,000 or penalty; (viiii) any Company Agreement with a term in excess of one year or providing for aggregate payments in excess of $175,000 that is not cancellable within 30 days without payment of any premium or penalty; (viii) any Company Agreement that contains a non-competition provision restricting relating to the business of the Company (or, at any time after the consummation of the Closing, the Purchaser Buyer or any of its Affiliates) or any other Contract restricting the right of the Company (or, at any time after the consummation of the Closing, Buyer or any of its Affiliates) to conduct business at any time, in any manner or at any place in the world, or the expansion thereof to other geographical areas or lines of business, or that grants the other party or any third Person “most favored nation” status; (ix) any Company Agreement relating to , except as specifically indicated in the acquisition or disposition of any material amount of assets outside of the Ordinary Course; and (x) any Company Agreement that is a partnership, joint venture or similar agreementSettlement Agreement. (b) Copies of all written Company Material Agreements referred to on Schedule 3.11(a) have been delivered or otherwise made available to the Purchaser Buyer prior to the date of this Agreement. (c) With Except as set forth on Schedule 3.11(c), to the Knowledge of the Member, with such exceptions as, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect on the CompanyEffect: (i) all of the Company Agreements are in full force and effect and are valid and binding on and enforceable against the Company in accordance with their terms and, to the Knowledge of the Company, and on and against the other parties thereto, except as enforceability may be limited by the effect of any applicable Law of general application relating to bankruptcy, insolvency, fraudulent conveyance, reorganization, insolvency, moratorium or similar Law other Laws relating to or affecting creditors’ the rights or relief and remedies of debtors generally, creditors generally and the effect of general principles of equity, including to general principles of equity governing specific performance, injunctive relief and other equitable remedies (regardless of whether enforceability is considered in a proceeding in equity or at law); (ii) the Company is not, and, to the Knowledge of the Company, no other party to any Company Agreement is, in breach of, or default under, any Company Agreement and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a breach of, or default under, any Company Agreement; (iii) the Company has not waived any right under any Company Agreement; (iv) there are no unresolved disputes under any Company Agreement; and (iiiv) the Company has not given to or received from any other Person any written notice or other written communication regarding any actual actual, alleged, possible or alleged potential violation or breach or, or default under, any Company Agreement. (d) To the Knowledge of the Member, the Company is not, and, no other party to the Settlement Agreement is, in breach of, or default under, the Settlement Agreement or any of the Final Documents (as such term is defined in the Settlement Agreement) and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a breach of, or default under, the Settlement Agreement or any of the Final Documents.

Company Agreements. (a) Section 4.12(a2.13(a) of the Company Disclosure Letter Schedules lists as of the date of this Agreement (i) each Company Agreement that is material to the business, assets, liabilities, results of operation, operations, financial condition or EBITDA of the Company taken as a whole, and (ii) without regard to materiality, each of the following Company Agreements (collectively, the “Company Material Agreements”):following: (i) any mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money by the Company; (ii) any guaranty, direct or indirect, primary or secondary, by the Company of any obligation for borrowings or otherwise, excluding those endorsements made for collection in the Ordinary Course; (iii) any Company Agreement made other than in the Ordinary Course; (iv) any Company Agreement providing for the grant of any preferential rights to purchase or lease any of the material assets of the Company; (ivv) any Company Agreement providing for any obligation to register any shares or other securities of the Company with the Securities and Exchange Commission or the State of New Mexico or otherwise relating to such other securities; (vi) any Company Agreement providing for any obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons other than in the Ordinary CoursePersons; (vvii) any Company Agreement that is a collective bargaining agreement with any labor union; (viviii) any Company Agreement providing for any lease or similar arrangement for the use by the Company of personal property involving payments of in excess of $175,000 10,000 per annum that is not cancellable within 30 days without payment of any premium or penaltyannum; (viiix) any Company Agreement to which any Insider is a party; (x) any Company Agreement with a term in excess of one year or providing for aggregate payments in excess of $175,000 10,000 or $35,000 by the Company with respect to such Company Agreements that is are not cancellable within 30 days without payment otherwise listed on in Section 2.13(a) of any premium or penaltythe Disclosure Schedules; (viiixi) any Company Agreement that contains a non-competition provision restricting relating to the business of the Company (or, at any time after the consummation of the Closing, the Purchaser Buyer or any of its Affiliates) or any other Contract restricting the right of the Company (or, at any time after the consummation of the Closing, Buyer or any of its Affiliates) to conduct business at any time, in any manner or at any place in the world, or the expansion thereof to other geographical areas or lines of business, or that grants the other party or any third Person “most favored nation” status; (ix) any Company Agreement relating to the acquisition or disposition of any material amount of assets outside of the Ordinary Course; and (xxii) any Company Agreement that is a partnership, joint venture or similar agreement; and (xiii) any Company Agreement relating to the acquisition or disposition of any business. (b) Copies of all written Company Material Agreements referred to in Section 2.13(a) of the Disclosure Schedules have been delivered or otherwise made available to the Purchaser Buyer prior to the date of this Agreement, and the Company has prior to the date of this Agreement provided Buyer with accurate and complete written summaries of all such Company Agreements that are unwritten. (c) With such exceptions as, individually or in the aggregate, do not have, and would not be reasonably likely to have, a Material Adverse Effect on the Company: (i) all All of the Company Agreements are in full force and effect and are valid and binding on and enforceable against the Company in accordance with their terms and, to the Knowledge of the Shareholders and the Company, on and against the other parties thereto, except as enforceability may be limited by the effect of any applicable Law of general application relating to bankruptcy, insolvency, fraudulent conveyance, reorganization, insolvency, moratorium or similar Law other Laws relating to or affecting creditors’ the rights or relief and remedies of debtors generally, creditors generally and the effect of general principles of equity, including to general principles of equity governing specific performance, injunctive relief and other equitable remedies (regardless of whether enforceability is considered in a proceeding in equity or at law);. (iid) the The Company is not, and, to the Knowledge of the Shareholders and the Company, no other party to any Company Agreement is, in breach of, or default under, any Company Agreement and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a breach of, or default under, any Company Agreement; and. (iiie) the The Company has not waived any right under any Company Agreement. (f) There are no unresolved disputes under any Company Agreement. (g) The Company has not given to or received from any other Person Person, at any written time since January 1, 2009, any notice or other written communication regarding any actual actual, alleged, possible or alleged potential violation or breach or, or default under, any Company Agreement.

Company Agreements. (a) Section 4.12(aSchedule 2.13(a) of the Company Disclosure Letter lists as of the date of this Agreement (i) each Company Agreement that is material to the business, assets, liabilities, results of operation, operations, financial condition or EBITDA of the Company and its Subsidiaries taken as a whole, and (ii) without regard to materiality, each of the following Company Agreements (collectively, the “Company Material Agreements”):following: (i) any mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money by the CompanyCompany or any of its Subsidiaries; (ii) any guaranty, direct or indirect, primary or secondary, by the Company or any of its Subsidiaries of any obligation for borrowings or otherwise, excluding those endorsements made for collection in the Ordinary Course; (iii) any Company Agreement made other than in the Ordinary Course; (iv) any Company Agreement providing for the grant of any preferential rights to purchase or lease any of the material assets of the CompanyCompany or its Subsidiaries; (ivv) any Company Agreement providing for any obligation to register any shares of the capital stock or other securities of the Company or its Subsidiaries with the Securities and Exchange Commission or otherwise relating to such stock or other securities; (vi) any Company Agreement providing for any obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons other than in the Ordinary CoursePersons; (vvii) any Company Agreement that is a collective bargaining agreement with any labor union; (viviii) any Company Agreement providing for any lease or similar arrangement for the use by the Company or its Subsidiaries of personal property involving payments of in excess of $175,000 25,000 per annum that is not cancellable within 30 days without payment of any premium or penaltyannum; (viiix) any Company Agreement to which any Insider is a party; (x) any Company Agreement with a term in excess of one year or providing for aggregate payments in excess of $175,000 25,000 or $100,000 for all such Company Agreements that is are not cancellable within 30 days without payment of any premium or penaltyotherwise listed on Schedule 2.13(a); (viiixi) any Company Agreement that contains a non-competition provision restricting relating to the business of the Company or its Subsidiaries (or, at any time after the consummation of the Closing, the Purchaser Buyer or any of its Affiliates) or any other Contract restricting the right of the Company or its Subsidiaries (or, at any time after the consummation of the Closing, Buyer or any of its Affiliates) to conduct business at any time, in any manner or at any place in the world, or the expansion thereof to other geographical areas or lines of business, or that grants the other party or any third Person “most favored nation” status; (ix) any Company Agreement relating to the acquisition or disposition of any material amount of assets outside of the Ordinary Course; and (xxii) any Company Agreement that is a partnership, joint venture or similar agreement; and (xiii) any Company Agreement relating to the acquisition or disposition of any business. (b) Copies of all written Company Material Agreements referred to on Schedule 2.13(a) have been delivered or otherwise made available to the Purchaser Buyer prior to the date of this Agreement, and the Stockholders have prior to the date of this Agreement provided Buyer with accurate and complete written summaries of all such Company Agreements that are unwritten. (c) With such exceptions as, individually or in the aggregate, do not have, and would are not be reasonably likely to have, a Material Adverse Effect on the CompanyEffect: (i) all of the Company Agreements are in full force and effect and are valid and binding on and enforceable against the Company or its applicable Subsidiary in accordance with their terms and, to the Knowledge of the CompanyCompany and the Stockholders, on and against the other parties thereto, except as enforceability may be limited by the effect of any applicable Law of general application relating to bankruptcy, insolvency, fraudulent conveyance, reorganization, insolvency, moratorium or similar Law other Laws relating to or affecting creditors’ the rights or relief and remedies of debtors generally, creditors generally and the effect of general principles of equity, including to general principles of equity governing specific performance, injunctive relief and other equitable remedies (regardless of whether enforceability is considered in a proceeding in equity or at law); (ii) neither the Company is notnor any of its Subsidiaries is, and, to the Knowledge of the CompanyCompany and the Stockholders, no other party to any Company Agreement is, in breach of, or default under, any Company Agreement and no event has occurred that, with the giving of notice or the lapse of time or both, would constitute a breach of, or default under, any Company Agreement; (iii) neither the Company nor any of its Subsidiaries has waived any right under any Company Agreement; (iv) there are no unresolved disputes under any Company Agreement; and (iiiv) neither the Company nor any of its Subsidiaries has not given to or received from any other Person Person, at any written time since December 31, 2004, any notice or other written communication regarding any actual actual, alleged, possible or alleged potential violation or breach or, or default under, any Company Agreement.