Contracts and Commitments. Except as set forth in the Company SEC Reports or on Section 3.10 of the Company Disclosure Schedule, none of the Company or any of its Subsidiaries is a party to or bound by any agreement, contract, commitment or other written instrument of the following type:
(a) any loan agreement, origination agreement, indenture, credit facility, securitization agreement, mortgage, security agreement, pledge agreement, deed of trust, bond, note, guaranty, surety, trust agreement and/or other agreement or instrument relating to (i) the borrowing of money or obtaining extensions of credit by the Company or any of its Subsidiaries or (ii) the loaning of money or granting extensions of credit (other than student loans) by the Company or any of its Subsidiaries;
(b) any agreement pursuant to which the Company or any of its Subsidiaries has purchased, generated or sold student loans in excess of Five Million Dollars ($5,000,000) in principal amount;
(c) any agreement relating to the extension of insurance or the providing of any guarantee, pursuant to the Higher Education Act of 1965, as amended (the “Higher Education Act”), by any federal agency or other entity of the principal of and/or accrued interest on any student loan extended by the Company or any of its Subsidiaries;
(d) any agreement by which the Company or any of its Subsidiaries services student loans for any third party or by which any third party services student loans for the Company or any of its Subsidiaries;
(e) any open purchase order or contract for capital expenditures by the Company or any of its Subsidiaries in excess of One Million Dollars ($1,000,000);
(f) any agreement for the lease of real property by the Company or any of its Subsidiaries;
(g) any contract or agreement that subjects the Company or any of its Subsidiaries to restrictions on the competitive conduct of their businesses or prohibits or otherwise restricts the Company or any of its Subsidiaries from soliciting customers, vendors or employees of third parties;
(h) any joint venture, partnership, royalty or similar agreement involving the sharing of profits and/or expenses between the Company or any of its Subsidiaries and any third party;
(i) any business acquisition or divestiture agreement (or any letter of intent, term sheet or draft agreement relating to any such pending transaction);
(j) any contract relating in whole or in part to the licensing to or from the Company or any of its Subsidiaries of any material Intellectual Propert...
Contracts and Commitments. (a) Schedule 2.12 attached hereto contains a true, complete and correct list of the following contracts and agreements, whether written or oral (collectively, the "Contracts"):
(i) all management contracts to which the Management Company is a party;
(ii) all loan agreements, indentures, mortgages and guaranties to which any Management Company is a party or by which the Management Company or any of its property is bound;
(iii) all pledges, conditional sale or title retention agreements, security agreements, personal property leases and lease purchase agreements to which the Management Company is a party or by which the Management Company or any of its property is bound;
(iv) all contracts, agreements or other understandings or arrangements between the Management Company and any stockholder or affiliate of the Management Company except those described in the Financial Statements or in writing to BRI; and
(v) any other material agreement or contract entered into by the Management Company.
(b) Except as set forth on Schedule 2.12 attached hereto:
(i) each Contract is a valid and binding agreement of the Management Company, enforceable against the Management Company in accordance with its terms, and neither the Management Company nor any Stockholder has any knowledge that such Contract is not a valid and binding agreement of the other parties thereto;
(ii) To the knowledge of the Management Company and the Stockholders, the Management Company has fulfilled all material obligations required pursuant to the Contracts to have been performed by it on its part prior to the date hereof, and neither the Management Company nor any Stockholder has any reason to believe that the Management Company will not be able to fulfill, when due, all of its obligations under the Contracts which remain to be performed after the date hereof except those obligations the failure to fulfill would not have a Material Adverse Effect;
(iii) To the knowledge of the Management Company and the Stockholders, the Management Company is not in breach of or default under any Contract, and no event has occurred which with the passage of time or giving of notice or both would constitute such a default, result in a loss of rights or result in the creation of any lien, charge or encumbrance, thereunder or pursuant thereto except for such defaults, losses, liens, changes or encumbrances which would not have a Material Adverse Effect; and
(iv) to the best knowledge of the Management Company and the Stoc...
Contracts and Commitments. Schedule 3.17 contains a true, complete and accurate list of each of the following outstanding agreements, leases, contracts, commitments, notes, bonds, mortgage indentures, deeds of trust, licenses, instruments, plans or other arrangements to which an Acquired Company Entity is a party to or bound by, or its assets or properties bound by (in each case, whether written or oral) and under which the obligations of all parties have not been fully performed and continuing obligations of any party exist other than post-completion warranties arising under construction contracts in the Ordinary Course of Business (and other than Employee Benefit Plans and Leases):
(a) except for employees covered by collective bargaining agreements, individual independent contracting agreements for safety and scheduling consulting, temporary employment agency agreements, and sub-contracting agreements, any contract for the employment or engagement of any officer, individual employee, or other person or entity on a full‑time, part-time, consulting or other basis or agreement providing severance or other termination payments or benefits or relating to loans to officers, directors, employees or affiliates;
(b) contracts with Material Customers or Material Suppliers;
(c) other than contracts for customers in the Ordinary Course of Business, any contract for capital expenditures or the acquisition or construction of fixed assets requiring aggregate future payments in excess of $250,000;
(d) any contract relating to the acquisition or divestiture of any corporation, partnership, limited liability company or other Person or any business enterprise or division thereof (including by merger, consolidation or acquisition, in whole or in part, of equity or other ownership interests or assets);
(e) any contract for the purchase or sale of inventory, materials, supplies, merchandise, machinery, equipment, parts or other property or assets requiring aggregate future payments in excess of $250,000, excluding purchase orders and sub-contractor agreements entered into or issued in the Ordinary Course of Business;
(f) any agreement or indenture relating to the borrowing of money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), or to the mortgaging, pledging, guaranteeing or otherwise placing a Lien (other than Permitted Liens) on any asset or group of assets of such Acquired Company Entity;
(g) any partnership, joint venture...
Contracts and Commitments. Except as listed and described on Schedule 1.68 and Schedule 2.1.4, neither Seller nor any party acting on behalf of Seller with Seller's Knowledge and consent is a party to any written or oral (for which Purchaser shall be bound following the Closing Date):
(i) Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by another party, involving in any one case $10,000 or more;
(ii) Contract to sell or supply products or to perform services, involving in any one case $10,000 or more (except for any Resident/Patient's Agreement);
(iii) Contract continuing over a period of more than six months from the date hereof or exceeding $10,000 in value (except for any Resident/Patient's Agreement);
(iv) representative, sales agency, dealer or distributor Contract;
(v) lease under which Seller is either lessor or lessee other than with respect to the Real Property Leased;
(vi) note, debenture, bond, conditional sale agreement, equipment trust agreement, letter of credit agreement, loan agreement or other Contract or for the borrowing or lending of money (including without limitation loans to or from Employees) or guarantee, pledge or undertaking of the indebtedness of any other Person;
(vii) Contract for any charitable or political contribution;
(viii) Contract limiting or restraining Seller or any successor or assign from engaging or competing in any likeness of business with any Person;
(ix) license, franchise, distributorship or other agreement, including those that relate in whole or in part to any patent, trademark, trade name, service mark xx copyright or to any ideas, technical assistance or other know-how of or used by the Business; or
(x) any other material Contract not made in the ordinary course of Seller's business consistent with past practice. Each of the Contracts and other instruments, documents and undertakings listed on Schedule 1.68 and Schedule 2.1.4 is valid and enforceable in accordance with its terms, Seller and, to Seller's Knowledge any other party thereto, are in compliance with the provisions thereof, Seller and, to Seller's Knowledge any other party thereto, are not in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein, and no event has occurred that with or without the giving of notice or lapse of time, or both, would constitute a default by Seller thereunder and, to Seller's Knowledge, a default by any other party th...
Contracts and Commitments. (a) Section 3.14(a) of the Company Disclosure Schedule sets forth a correct and complete list of the following Contracts to which the Company or any of its Subsidiaries is a party or otherwise bound (the Contracts required to be set forth in Section 3.14(a) of the Company Disclosure Schedule collectively, the “Material Contracts”):
(i) each Contract with a Top Merchant or Top Vendor;
(ii) other than merchant agreements entered into in the ordinary course of business, each Contract that involved the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate during the twelve-month period ending on December 31, 2017 or is reasonably expected to involve the expenditure or receipt by the Company and its Subsidiaries of more than $500,000 in the aggregate in the twelve-month period ending December 31, 2018;
(iii) each Contract with any Related Party (other than (A) offer letters for employment on an at-will basis, (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) Company Benefit Plans and Company Benefit Arrangements);
(iv) each Contract evidencing Company Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement;
(v) each Real Property Lease;
(vi) each Contract with any Card Association or NACHA and/or each Contract with a member of a Card Association enabling the Company’s or any of its Subsidiaries’ participation in such Card Association or NACHA;
(vii) each material license or other material Contract pursuant to which the Company or any of its Subsidiaries grants or receives rights in or to use any material Intellectual Property, but excluding (A) “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for software commercially available on reasonable terms to the public generally with license, maintenance, support and other fees of less than $25,000 per year, (B) non-exclusive licenses granted to Merchants or other customers of the Company or any of its Subsidiaries in the ordinary course of business and (C) referral agreements and reseller agreements in the ordinary course of business;
(viii) each Contract for the (A) disposition (whether by merger, consolidation, sale of equity or assets or otherwise) of any significant portion of the assets or business of the Company a...
Contracts and Commitments. (a) Except as set forth on Schedule 4.10, none of the Company, Newco or any of the Sold Subsidiaries is party to any:
(i) Contract relating to any acquisition of a business, whether by acquisition of equity interests or by asset acquisition, by the Company, Newco or any Sold Subsidiary within the last three (3) years or under which the Company, Newco or any Sold Subsidiary has any ongoing material rights or Liabilities;
(ii) collective bargaining agreement or similar Contract (each, a "Collective Bargaining Agreement");
(iii) Contract for the employment of any officer, individual employee or other person on a full-time, part-time or consulting basis providing for base compensation or other monetary compensation in excess in the aggregate of $75,000 per annum;
(iv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of the Company's, Newco's or the Sold Subsidiaries' assets or any other Contract governing any Indebtedness of the Company, Newco or any of the Sold Subsidiaries;
(v) lease, agreement or other Contract under which it is lessee of or holds or operates any tangible personal property owned by any other party, for which the annual rent exceeds $25,000;
(vi) lease, agreement or other Contract under which it is lessor of or permits any third party to hold or operate any personal property, for which the annual rent exceeds $25,000;
(vii) Contract or group of related Contracts with the same party for the purchase of products or services (other than purchase orders entered into in the ordinary course of business), under which the undelivered balance of such products or services has a sales price in excess of $100,000 for the current calendar year or any subsequent year or which is not terminable on less than ninety (90) days' notice;
(viii) Contract or group of related Contracts with the same party for the sale of products or services (other than purchase orders entered into in the ordinary course of business), under which the undelivered balance of such products or services has a sales price in excess of $100,000 for the current calendar year or any subsequent year;
(ix) Contract which (i) prohibits the Company, Newco or the Sold Subsidiaries from freely engaging in the Businesses anywhere in the world (other than confidentiality agreements entered into in the ordinary course of business) or (ii) contains any exclusivity, non-competition, "most-favored nation," non-soli...
Contracts and Commitments. (a) Schedule 4.21(a) lists the following Contracts to which any Citywide Entity is a party or subject or by which it is bound (such Contracts required to be listed on Schedule 4.21(a), the “Material Contracts”):
(i) any employment, agency, collective bargaining Contract or consulting or independent contractor Contract;
(ii) any written or oral Contract relating to any severance pay for any Person;
(iii) any written or oral Contract creating, modifying, memorializing or otherwise related to any obligation of any Citywide Entity upon a change of control;
(iv) any Contract to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date;
(v) any (A) contract or group of related contracts with the same party for the purchase or sale of products or services, under which the undelivered balance of such products and services has a purchase price in excess of $50,000 for any individual contract or $100,000 for any group of related contracts in the aggregate, or (B) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, which is not entered into in the Ordinary Course of Business and is either not terminable by it on 30 days’ or less notice without penalty or involves more than $50,000 for any individual contract or $100,000 in the aggregate for any group of related contracts;
(vi) any Contract containing exclusivity, noncompetition or nonsolicitation provisions or that would otherwise prohibit any of the Citywide Entities from freely engaging in business anywhere in the world or prohibiting the solicitation of the employees or contractors of any other entity;
(vii) any stock purchase, stock option, restricted stock or restricted stock unit or stock incentive plan;
(viii) any Contract for capital expenditures in excess of $50,000;
(ix) any partnership, joint venture, limited liability company, shareholder, investor rights or other similar Contract or arrangement;
(x) any Contract with a Governmental Entity;
(xi) any Contract pursuant to which any of the Citywide Entities grants or makes available, or is granted or receives, any license or other right requiring an expenditure in excess of $100,000 annually, with respect to any material Intellectual Property in each case that is reasonably necessar...
Contracts and Commitments. As of the date hereof, Section 4.18 of the Company Disclosure Schedule contains a complete and accurate list of all contracts (written or oral), plans, undertakings, commitments or agreements (including, without limitation, intercompany contracts) ("Company Contracts") of the following categories to which the Company or any of its Subsidiaries is a party or by which any of them is bound as of the date of this Agreement:
(a) employment contracts, including, without limitation, contracts to employ executive officers and other contracts with officers, directors or stockholders of the Company, and all severance, change in control or similar arrangements with any officers, employees or agents of the Company that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries to make any payment to any officers, employees or agents of the Company following the consummation of the transactions contemplated hereby or termination or change of terms and conditions of employment;
(b) collective bargaining agreements;
(c) Company Contracts for the purchase of inventory which are not cancellable (without material penalty, cost or other liability) within one year and, other than Company Contracts described elsewhere in this Section 4.18, other Company Contracts made in the ordinary course of business involving annual expenditures or liabilities in excess of $5,000,000 which are not cancellable (without material penalty, cost or other liability) within 90 days;
(d) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower, lender or guarantor, in excess of $1,000,000;
(e) Company Contracts containing covenants limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or compete with any Person or operate at any location, including, without limitation, any preferential rights granted to third parties;
(f) any Company Contract pending for the acquisition or disposition, directly or indirectly (by merger or otherwise) of material Assets (other than inventory) or capital stock of any Person (including, without limitation, the Company or any of its Subsidiaries); and
(g) other than Company Contracts described elsewhere in this Section 4.18 or Company Contracts which may be omitted pursuant to the specific size limitations set forth in other provisions of this Section 4.18, Company Contracts between the Company an...
Contracts and Commitments. (a) Schedule 2.16 attached hereto contains a true, complete and correct list and description of the following contracts and agreements, whether written or oral (collectively, the "Contracts"):
(i) all loan agreements, indentures, mortgages and guaranties to which the Seller is a party or by which the Seller or any of its property is bound;
(ii) all pledges, conditional sale or title retention agreements, security agreements, equipment obligations, personal property leases and lease purchase agreements relating to any of the Assets to which the Seller is a party or by which the Seller or any of its property is bound;
(iii) all contracts, agreements, commitments, purchase orders or other understandings or arrangements to which the Seller is a party or by which the Seller or any of its property is bound which (A) involve payments or receipts by the Seller of more than $2,000 in the case of any single contract, agreement, commitment, understanding or arrangement under which full performance (including payment) has not been rendered by all parties thereto or (B) which may materially adversely affect the condition (financial or otherwise) or the properties, assets, business or prospects of the Seller;
(iv) all collective bargaining agreements, employment and consulting agreements, executive compensation plans, bonus plans, deferred compensation agreements, pension plans, retirement plans, employee stock option or stock purchase plans and group life, health and accident insurance and other employee benefit plans, agreements, arrangements or commitments to which the Seller is a party or by which the Seller or any of its property is bound;
(v) all agency, distributor, sales representative and similar agreements to which the Seller is a party;
(vi) all contracts, agreements or other understandings or arrangements between the Seller any stockholder or Affiliate of the Seller;
(vii) all leases, whether operating, capital or otherwise, under which the Seller is lessor or lessee; and
(viii) any other material agreement or contract entered into by the Seller.
(b) Except as set forth on Schedule 2.16 attached hereto:
(i) each Contract is a valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, and the Seller does not have any knowledge that any Contract is not a valid and binding agreement of the other parties thereto;
(ii) the Seller has fulfilled all material obligations required pursuant to the Contracts to have been per...
Contracts and Commitments. (a) As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any of its Subsidiaries that was required to be, but has not been, filed with the SEC with the Company’s Annual Report on Form 10-K for the year ended June 30, 2023, or any Company SEC Documents filed after the date of filing of such Form 10-K until the date of this Agreement;
(ii) Contract (A) relating to the disposition, transfer or acquisition by the Company or any of its Subsidiaries of any material tangible or intangible assets (1) after the date of this Agreement, other than the sale of inventory in the ordinary course of business consistent with past practice, or (2) prior to the date of this Agreement, that contains any material ongoing obligations (including sale of inventory, indemnification, “earn-out” or other contingent obligations) that are still in effect that are expected to result in claims in excess of $250,000 or (B) pursuant to which the Company or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than the Company’s Subsidiaries;
(iii) collective bargaining agreement or Contract with any labor union, trade organization or other employee representative body (other than any statutorily mandated agreement in a non-U.S. jurisdiction);
(iv) Contract establishing any joint venture, partnership, or collaboration, in each case, that is material to the Company and its Subsidiaries, taken as a whole;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party (C) requiring the Company or any of its Subsidiaries to conduct any business on a “most favored nations” basis with any third party, or (D) under which any Person has been granted the right to manufacture, sell, market or distribute any product of the Company or any of its Subsidiaries on an exclusive basis to any Person or group of Persons or in any geogra...
