Common use of Contracts and Other Agreements Clause in Contracts

Contracts and Other Agreements. (a) Section 3.17(a) of the Sellers’ Disclosure Schedule lists all Purchased Contracts other than (i) Purchase Orders, (ii) Customer Orders and (iii) Purchased Contracts that involve the payment of less than seventy-five thousand dollars ($75,000) per year and the parties to such Purchased Contracts (other than the Sellers) are not parties to Purchased Contracts involving payments of more than one hundred seventy-five thousand dollars ($175,000) per year in the aggregate and that are not otherwise material to the Business. (b) Section 3.17(b) of the Sellers’ Disclosure Schedule attached as of the date hereof lists all Purchase Orders as of December 8, 2010, including the payment terms, delivery dates, item identification, quantities and shipping terms and Section 3.17(b) of the Sellers’ Disclosure Schedule as updated in accordance with Section 5.18 hereof on the Closing Date shall list all Purchase Orders as of the close of business as of the date which is four (4) Business Days preceding the Closing Date, including the payment terms, delivery dates, item identification, quantities and shipping terms, provided such updated Section 3.17(b) shall be provided to Purchaser two (2) Business Days prior to the Closing Date. (c) Section 3.17(c) of the Sellers’ Disclosure Schedule lists all Purchased Contracts that contain any provision or covenant that would, after giving effect to the transactions contemplated hereby and by the Transaction Documents, prohibit or limit the ability of Purchaser or any of its Affiliates to engage in any business activity or compete with any Person or prohibit or limit the ability of any Person to compete with Purchaser or any of its Affiliates. (d) Except as set forth in Section 3.17(d), each Purchased Contract is in full force and effect and constitutes a legal, valid and binding agreement, enforceable against any of the Sellers and, to the Sellers’ Knowledge, each other party thereto, in accordance with its terms. The Sellers are not, and to the Sellers’ Knowledge, no other party to any Purchased Contract is, in violation or breach of, or in default under, nor has there occurred an event or condition that with the passage of time or giving of notice (or both) could constitute a default under, or permit the termination of, any such Purchased Contract. (e) Section 3.17(e) of the Sellers’ Disclosure Schedule lists all of the Collateral Agreements, the Financing Agreements, the Seller Factoring Agreements, the Rafaella Acquisition Agreements and the Seller Employment Agreements. (f) Except as noted in Sections 3.17(a), 3.17(c) or 3.17(e) of the Sellers’ Disclosure Schedule, the Sellers have delivered to Purchaser true and complete copies of each Contract listed on Sections 3.17(a), 3.17(c) and 3.17(e) of the Sellers’ Disclosure Schedule, together with all amendments and supplements thereto, to the extent not filed with the SEC; provided, that such Contracts filed with the SEC are publicly-available, unredacted, include facsimiles or conformed copies of all signatures thereto and include all exhibits, schedules, annexes and appendices thereto.

Contracts and Other Agreements. (a) The Company 10-K and the Company 10-Qs disclose all contracts that constitute “material contracts” (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC) which are required to be disclosed therein or listed as exhibits thereto, except as set forth in Section 3.17(a2.14(a) of the Sellers’ Company Disclosure Schedule lists all Purchased Contracts other than (i) Schedule. All of such contracts, together with the Note Purchase OrdersAgreements dated as of February 25, (ii) Customer Orders 2000, August 4, 1999 and (iii) Purchased Contracts that involve June 17, 1996 between the payment of less than seventy-five thousand dollars ($75,000) per year Company and the parties to such Purchased Contracts Purchasers named therein (other than collectively, the Sellers“Company Contracts”) are not valid, subsisting, in full force and effect, binding upon the Company or the applicable Company Subsidiary, and, to the knowledge of the Company, binding upon the other parties thereto in accordance with their terms, subject to Purchased Contracts involving payments applicable bankruptcy, insolvency, moratorium or similar laws relating to creditors’ rights and general principles of more than one hundred seventy-five thousand dollars ($175,000) per year in equity. The Company and the aggregate and that Company Subsidiaries are not otherwise in material default under any of the Company Contracts, nor, to the Businessknowledge of the Company, is any other party to any Company Contract in material default thereunder. True and complete copies of all of the Company Contracts have been provided or made available to Parent. (b) Other than those contracts disclosed in Section 3.17(b2.14(b) of the Sellers’ Company Disclosure Schedule attached as of Schedule, neither the date hereof lists all Purchase Orders as of December 8Company nor any Company Subsidiary is a party to any agreement (other than distributorship agreements, 2010, including the payment terms, delivery dates, item identification, quantities and shipping terms and Section 3.17(b) of the Sellers’ Disclosure Schedule as updated in accordance agreements with Section 5.18 hereof on the Closing Date shall list all Purchase Orders as of the close of business as of the date which is four (4) Business Days preceding the Closing Date, including the payment terms, delivery dates, item identification, quantities and shipping terms, provided such updated Section 3.17(b) shall be sales representatives or license agreements provided to Purchaser two (2) Business Days Parent prior to the Closing Datedate of this Agreement) that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any material line of business in any geographic area. (c) Section 3.17(c) of the Sellers’ Disclosure Schedule lists all Purchased Contracts that contain any provision or covenant that would, after giving effect to the transactions contemplated hereby and by the Transaction Documents, prohibit or limit the ability of Purchaser or any of its Affiliates to engage in any business activity or compete with any Person or prohibit or limit the ability of any Person to compete with Purchaser or any of its Affiliates. (d) Except as set forth in Section 3.17(d), each Purchased Contract is in full force and effect and constitutes a legal, valid and binding agreement, enforceable against any 2.14(c) of the Sellers andCompany Disclosure Schedule or in the Company SEC Reports, to the Sellers’ Knowledge, each other party thereto, in accordance with its terms. The Sellers are not, and to knowledge of the Sellers’ KnowledgeCompany, no executive officer or director of the Company has (whether directly or indirectly through another entity in which such person has a material interest, other than as the holder of less than two percent (2%) of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a shareholder) or a Company Subsidiary, any competitor, customer, supplier or agent of the Company or a Company Subsidiary or any Person that is currently a party to any Purchased Contract is, in violation material contract or breach of, or in default under, nor has there occurred an event or condition that agreement with the passage of time Company or giving of notice (or both) could constitute a default under, or permit the termination of, any such Purchased ContractCompany Subsidiary. (e) Section 3.17(e) of the Sellers’ Disclosure Schedule lists all of the Collateral Agreements, the Financing Agreements, the Seller Factoring Agreements, the Rafaella Acquisition Agreements and the Seller Employment Agreements. (f) Except as noted in Sections 3.17(a), 3.17(c) or 3.17(e) of the Sellers’ Disclosure Schedule, the Sellers have delivered to Purchaser true and complete copies of each Contract listed on Sections 3.17(a), 3.17(c) and 3.17(e) of the Sellers’ Disclosure Schedule, together with all amendments and supplements thereto, to the extent not filed with the SEC; provided, that such Contracts filed with the SEC are publicly-available, unredacted, include facsimiles or conformed copies of all signatures thereto and include all exhibits, schedules, annexes and appendices thereto.

Contracts and Other Agreements. Except for the contracts ------------------------------ (whether written or oral), agreements and other arrangements listed in Schedule -------- 2.9 or Schedule 2.11, Seller is not a party to or otherwise bound by any of the --- ------------- following relating to the Business: (a) Section 3.17(adistributor, supplier or vendor agreements, (b) customer contracts, including purchase orders, (c) contracts and other agreements with any labor union or association representing any employee relating to the Business, (d) contracts and other agreements with any Person to sell, distribute, advertise or otherwise market any of the Sellers’ Disclosure Schedule lists all Purchased Contracts products sold by Seller, (e) contracts and other than agreements pursuant to which any Person is required to purchase or sell a stated portion of its requirements or output from or to another Person, (f) joint venture agreements, (g) contracts and other agreements which involve the payment or receipt of monies in the form of royalties; (h) contracts and other agreements with customers, distributors or suppliers for the rebating of charges or other similar arrangements, (i) Purchase Orderscontracts and other agreements relating to the acquisition by Seller of any operating business or the capital stock of any other Person, (iij) Customer Orders material contracts and (iii) Purchased Contracts that involve the payment of less than seventy-five thousand dollars ($75,000) per year and the parties to such Purchased Contracts (other than the Sellers) are material agreements not parties to Purchased Contracts involving payments of more than one hundred seventy-five thousand dollars ($175,000) per year entered into in the aggregate and that are not otherwise material to the Business. ordinary course of business, (bk) Section 3.17(b) any financing agreement or other agreement or document evidencing outstanding loans or similar financial arrangements of the Sellers’ Disclosure Schedule attached as Seller, or (l) any other contract or other agreement pursuant to which annual payments in excess of the date hereof lists all Purchase Orders as of December 8, 2010$5,000 per contract or agreement has been or may hereafter be required by such contract or agreement to be made (items (a) through (l) above, including the payment termsthose listed on Schedule 2.11, delivery dates, item identification, quantities are collectively referred to as "Contracts"). ------------- --------- There have been made available to Buyer and shipping terms and Section 3.17(b) of the Sellers’ Disclosure Schedule as updated in accordance with Section 5.18 hereof on the Closing Date shall list all Purchase Orders as of the close of business as of the date which is four (4) Business Days preceding the Closing Date, including the payment terms, delivery dates, item identification, quantities and shipping terms, provided such updated Section 3.17(b) shall be provided to Purchaser two (2) Business Days prior to the Closing Date. (c) Section 3.17(c) of the Sellers’ Disclosure Schedule lists all Purchased Contracts that contain any provision or covenant that would, after giving effect to the transactions contemplated hereby and by the Transaction Documents, prohibit or limit the ability of Purchaser or any of its Affiliates to engage in any business activity or compete with any Person or prohibit or limit the ability of any Person to compete with Purchaser or any of its Affiliates. (d) Except as set forth in Section 3.17(d), each Purchased Contract is in full force and effect and constitutes a legal, valid and binding agreement, enforceable against any of the Sellers and, to the Sellers’ Knowledge, each other party thereto, in accordance with its terms. The Sellers are not, and to the Sellers’ Knowledge, no other party to any Purchased Contract is, in violation or breach of, or in default under, nor has there occurred an event or condition that with the passage of time or giving of notice (or both) could constitute a default under, or permit the termination of, any such Purchased Contract. (e) Section 3.17(e) of the Sellers’ Disclosure Schedule lists all of the Collateral Agreements, the Financing Agreements, the Seller Factoring Agreements, the Rafaella Acquisition Agreements and the Seller Employment Agreements. (f) Except as noted in Sections 3.17(a), 3.17(c) or 3.17(e) of the Sellers’ Disclosure Schedule, the Sellers have delivered to Purchaser representatives true and complete copies of each Contract listed on Sections 3.17(a), 3.17(c) and 3.17(e) all of the Sellers’ Disclosure ScheduleContracts set forth on Schedule 2.11. Except as ------------- set forth on Schedule 2.11, together with all amendments of such Contracts are valid and supplements binding upon ------------- Seller and the other parties thereto. Except as set forth on Schedule 2.11, ------------- Seller is not in default in any material respect under any such Contract, nor, to the extent not filed with the SEC; providedknowledge of Seller or Owners, that are any other parties to any such Contracts filed in default in circumstances under which such default or defaults, or any possible termination or nonperformance under such Contracts, could have a material adverse effect on the Acquired Assets or the Business nor, to the knowledge of Seller or Owners, does any condition exist that with the SEC are publicly-available, unredacted, include facsimiles notice or conformed copies passage of all signatures thereto and include all exhibits, schedules, annexes and appendices theretotime or both would constitute a material default thereunder.

Contracts and Other Agreements. SCHEDULE 4.11 lists all of the following written or oral contracts (the "Material Contracts") to which Seller or any Foreign Subsidiary is bound that relate to the Subject Business: (a) Section 3.17(a) of the Sellers’ Disclosure Schedule lists all Purchased Contracts other than (i) Purchase Orders, (ii) Customer Orders and (iii) Purchased Contracts that involve the payment of less than seventy-five thousand dollars ($75,000) per year and the parties to such Purchased Contracts (other than the Sellers) are All contracts not parties to Purchased Contracts involving payments of more than one hundred seventy-five thousand dollars ($175,000) per year in the aggregate and that are not otherwise material to the Business.ordinary course of business; (b) Section 3.17(b) of the Sellers’ Disclosure Schedule attached as of the date hereof lists all Purchase Orders as of December 8, 2010, including the payment terms, delivery dates, item identification, quantities and shipping terms and Section 3.17(b) of the Sellers’ Disclosure Schedule as updated in accordance Contracts with Section 5.18 hereof on the Closing Date shall list all Purchase Orders as of the close of business as of the date which is four (4) Business Days preceding the Closing Date, including the payment terms, delivery dates, item identification, quantities and shipping terms, provided such updated Section 3.17(b) shall be provided to Purchaser two (2) Business Days prior to the Closing Date.Seller or an affiliate thereof; (c) Section 3.17(c) of the Sellers’ Disclosure Schedule lists all Purchased Contracts that contain any provision or covenant that would, after giving effect Contacts pertaining to the transactions contemplated hereby and by the Transaction Documents, prohibit or limit the ability borrowing of Purchaser or any of its Affiliates to engage in any business activity or compete with any Person or prohibit or limit the ability of any Person to compete with Purchaser or any of its Affiliates.money; (d) Except as set forth Contacts creating guarantees or powers of attorney; (e) Contacts relating to employment (other than at-will) or consulting services; (f) VAR, distributor, dealer, representative, agency or other distribution agreements; (g) Development agreements; (h) Joint venture, partnership or similar agreements or cooperative arrangements; (i) Noncompetition, confidentiality, secrecy or similar agreements that impose obligations on the Subject Business; (j) Contracts involving payment or performance by either party thereto having an aggregate value of $25,000 or more; (k) Licenses or royalty agreements (other than licenses to customers in Section 3.17(dthe ordinary course of business); (l) Contracts granting exclusive rights of any kind to any other party; (m) Contracts that cannot be canceled on thirty (30) days or less notice without payment or penalty; (n) Contracts relating to the lease of real property; or (o) Contracts requiring performance by Seller or a Foreign Subsidiary outside of the United States. Seller has delivered true and correct copies of each of the Material Contracts, each Purchased and all amendments and modifications of such Contracts, to Buyer (and true and correct English translations thereof for any Material Contract written in a foreign language). Each Material Contract is valid, binding and in full force and effect and constitutes a legal, valid and binding agreement, enforceable against any of the Sellers and, to the Sellers’ Knowledge, each other party thereto, in accordance with its terms. The Sellers are notExcept as set forth on SCHEDULE 4.11, and none of Seller, any Foreign Subsidiary, nor, to the Sellers’ Knowledgebest of Seller's knowledge, no any other party to a Material Contract is in breach or default under any Purchased Material Contract is(with or without the lapse of time, or the giving of notice, or both). Neither Seller nor any Foreign Subsidiary has relinquished any rights it has under any of the Material Contracts. Except in violation or breach respect of Intellectual Property, any and all contracts, licenses, agreements and similar items held in the name of, or in default under, nor has there occurred an event or condition that with for the passage of time or giving of notice (or both) could constitute a default under, or permit the termination benefit of, Seller or any such Purchased Contract. (e) Section 3.17(e) Foreign Subsidiary, and that are necessary to the conduct of the Sellers’ Disclosure Schedule lists all of the Collateral AgreementsSubject Business as currently conducted, the Financing Agreements, the Seller Factoring Agreements, the Rafaella Acquisition Agreements and the Seller Employment Agreementsare included in SCHEDULE 4.11. (f) Except as noted in Sections 3.17(a), 3.17(c) or 3.17(e) of the Sellers’ Disclosure Schedule, the Sellers have delivered to Purchaser true and complete copies of each Contract listed on Sections 3.17(a), 3.17(c) and 3.17(e) of the Sellers’ Disclosure Schedule, together with all amendments and supplements thereto, to the extent not filed with the SEC; provided, that such Contracts filed with the SEC are publicly-available, unredacted, include facsimiles or conformed copies of all signatures thereto and include all exhibits, schedules, annexes and appendices thereto.

Contracts and Other Agreements. Within five (a5) Section 3.17(adays following ------------------------------ the Agreement Date, Seller shall deliver to Purchaser a true and complete copy of alt service contracts, maintenance contracts, improvement contracts, license agreements, agreements of any nature whatsoever affecting the Property, warranties, soils reports, and other contracts or documents affecting the Property or its operation that Seller has in its possession or control (collectively, the "Contracts"). Purchaser shall have the period of time from and after the Agreement Date until 5:00 p.m. (Pacific Time) on December 10, 1997 to either approve of the Sellers’ Disclosure Schedule lists all Purchased any such Contracts, or to notify Seller in writing, specifying any Contracts other than (i) Purchase Orders, (ii) Customer Orders and (iii) Purchased Contracts that involve the payment of less than seventy-five thousand dollars ($75,000) per year and the parties to such Purchased Contracts (other than the Sellers) are not parties to Purchased Contracts involving payments of more than one hundred seventy-five thousand dollars ($175,000) per year in the aggregate and that are not otherwise material to the Business. (b) Section 3.17(b) of the Sellers’ Disclosure Schedule attached which Purchaser desires be terminated effective as of the date hereof lists all Purchase Orders as Closing (the "Disapproved Contracts"). Seller shall have until three (3) business days after Seller's receipt of December 8such notice from Purchaser, 2010if any, including the payment terms, delivery dates, item identification, quantities and shipping terms and Section 3.17(b) of the Sellers’ Disclosure Schedule as updated in accordance with Section 5.18 hereof on the Closing Date shall list all Purchase Orders to agree to lawfully terminate such Disapproved Contracts effective as of the close of business Closing, with such Disapproved Contracts being terminated effective as of the date which is four Closing. Those Contracts specifically approved by Purchaser (4) Business Days preceding the Closing Date, including the payment terms, delivery dates, item identification, quantities and shipping terms, provided such updated Section 3.17(b"Approved Contracts") shall be provided assigned by Seller and Seller shall assign its right, title and interest under the Approved Contracts to Purchaser two (2) Business Days at the Closing pursuant to the Assignment and Assumption of Contracts, Warranties and Permits in substantially the form attached hereto as Exhibit C, and made a part hereof. --------- Failure by Seller to agree to so terminate the Disapproved Contracts within the specified period shall be deemed to be a failure of this condition, unless Purchaser withdraws its disapproval or rejection in writing prior to the Closing Date. (c) Section 3.17(c) expiration of the Sellers’ Disclosure Schedule lists all Purchased Contracts that contain any provision or covenant that would, after giving effect to the transactions contemplated hereby and by the Transaction Documents, prohibit or limit the ability of Purchaser or any of its Affiliates to engage in any business activity or compete with any Person or prohibit or limit the ability of any Person to compete with Purchaser or any of its AffiliatesConditions Period. (d) Except as set forth in Section 3.17(d), each Purchased Contract is in full force and effect and constitutes a legal, valid and binding agreement, enforceable against any of the Sellers and, to the Sellers’ Knowledge, each other party thereto, in accordance with its terms. The Sellers are not, and to the Sellers’ Knowledge, no other party to any Purchased Contract is, in violation or breach of, or in default under, nor has there occurred an event or condition that with the passage of time or giving of notice (or both) could constitute a default under, or permit the termination of, any such Purchased Contract. (e) Section 3.17(e) of the Sellers’ Disclosure Schedule lists all of the Collateral Agreements, the Financing Agreements, the Seller Factoring Agreements, the Rafaella Acquisition Agreements and the Seller Employment Agreements. (f) Except as noted in Sections 3.17(a), 3.17(c) or 3.17(e) of the Sellers’ Disclosure Schedule, the Sellers have delivered to Purchaser true and complete copies of each Contract listed on Sections 3.17(a), 3.17(c) and 3.17(e) of the Sellers’ Disclosure Schedule, together with all amendments and supplements thereto, to the extent not filed with the SEC; provided, that such Contracts filed with the SEC are publicly-available, unredacted, include facsimiles or conformed copies of all signatures thereto and include all exhibits, schedules, annexes and appendices thereto.