Common use of Contracts and Other Instruments Clause in Contracts

Contracts and Other Instruments. Copies of all Contracts and in any manner relating to the businesses, the Customer Accounts and/or the Acquired Assets have been delivered to Buyers. The Sellers have furnished the Buyer with a true and complete copy of each written contract, written obligation and written commitment, and with accurately detailed descriptions of each oral contract, oral obligation and oral commitment. With respect to each Contract, (i) each is legal, valid, binding, enforceable and in full force and effect; (ii) each will continue to be legal, valid binding, enforceable and in full force and effect; (ii) each will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation of the Transactions; (iii) no party thereto is in breach or default, and in no event has occurred which, with notice or lapse of time, would constitute a breach or default, or permit termination, modification, or acceleration, under such Contract; (iv) no party thereto has repudiated any provision of such Contract; and (v) the execution and delivery of this Agreement and the Transaction Documents and the consummation of the Transactions will not require the consent of any party (other than the Company) to any Contract. The Company is not party to: (a) any Contract under which the Company or its Subsidiary Corporations has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which a Lien has been imposed on any of the Acquired Assets, tangible or intangible; (b) any Contract with the Shareholders or affiliates thereof, or regarding the advance of money to the Shareholders, employees, officers, directors or agents of the Company (c) any Contracts under which the Company or its Subsidiary Corporations has created a profit sharing, option, purchase, equity appreciation, deferred compensation severance, or other plan, agreement or arrangement for the benefit of current or former shareholders, directors, officers, employees or independent contractors; (d) any Contracts concerning a partnership or joint venture; or (e) any Contracts under which the consequences of a default, termination or continued performance could have a Material Adverse Effect.

Contracts and Other Instruments. Copies of Schedule 3.09 accurately and completely sets forth all Contracts material contracts, agreements, instruments, leases, licenses, arrangements, or understandings with respect to Purchaser and in any manner relating the Purchaser Subsidiaries taken as a whole, identifying whether the matter disclosed therein relates to Purchaser or to a Purchaser Subsidiary named therein. Purchaser has furnished to the businessesPurchaser (a) the certificate of incorporation (or other charter document) and by-laws of Purchaser and each Purchaser Subsidiary and all amendments thereto, as presently in effect, certified by the Customer Accounts and/or Secretary of the Acquired Assets have been delivered to Buyers. The Sellers have furnished corporation and (b) the Buyer with a true and complete copy of each written contract, written obligation and written commitment, and with accurately detailed descriptions of each oral contract, oral obligation and oral commitment. With respect to each Contract, following: (i) true and correct copies of all contracts, agreements, and instruments referred to in Schedule 3.09; (ii) true and correct copies of all leases and licenses referred to in Schedule 3.08 or Schedule 3.11; and (iii) true and correct written descriptions of all supply, distribution, agency, financing, or other arrangements or understandings referred to in Schedule 3.08. Neither Purchaser, any Purchaser Subsidiary, nor to the knowledge of Purchaser or HEcom any other party to any such contract, agreement, instrument, lease, or license is now or, in the reasonable judgment of Seller, expects in the future to be in violation or breach of, or in default with respect to complying with, any material term thereof, and, assuming the due authorization, execution and delivery thereof by the other parties thereto, each such contract, agreement, instrument, lease, or license is in full force and is the legal, valid, binding, enforceable and in full force and effect; (ii) each will continue to be legal, valid binding, enforceable and in full force and effect; (ii) each will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation binding obligation of the Transactions; (iii) no party parties thereto is in breach or defaultand, subject to applicable bankruptcy, insolvency, and other laws affecting the enforceability of creditors' rights generally, is enforceable as to them in no event has occurred whichaccordance with its terms. Each such supply, with notice or lapse of timedistribution, would constitute a breach or defaultagency, or permit termination, modification, or acceleration, under such Contract; (iv) no party thereto has repudiated any provision of such Contract; and (v) the execution and delivery of this Agreement and the Transaction Documents and the consummation of the Transactions will not require the consent of any party (other than the Company) to any Contract. The Company is not party to: (a) any Contract under which the Company or its Subsidiary Corporations has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which a Lien has been imposed on any of the Acquired Assets, tangible or intangible; (b) any Contract with the Shareholders or affiliates thereof, or regarding the advance of money to the Shareholders, employees, officers, directors or agents of the Company (c) any Contracts under which the Company or its Subsidiary Corporations has created a profit sharing, option, purchase, equity appreciation, deferred compensation severancefinancing, or other planarrangement or understanding is a valid and continuing arrangement or understanding; neither Purchaser, agreement any Purchaser Subsidiary, nor any other party to any such arrangement or understanding has given notice of termination or taken any action inconsistent with the continuance of such arrangement or understanding; and the execution, delivery, and performance by Purchaser or HEcom of the Transaction Agreements to which it is party will not prejudice any such arrangement or understanding in any way. Each of Purchaser and each of the Purchaser Subsidiaries enjoys peaceful and undisturbed possession under all leases and licenses under which it is operating. Neither Purchaser nor any Purchaser Subsidiary is party to or bound by any contract, agreement, instrument, lease, license, arrangement, or understanding, or subject to any charter or other restriction, which has had or, to the knowledge of Purchaser or any Purchaser Subsidiary, may in the future have a material adverse effect on the financial condition, results of operations, business, properties, assets, liabilities, or future prospects of Purchaser or any Purchaser Subsidiary. Except as disclosed in the Purchaser SEC Documents, neither Purchaser nor any Purchaser Subsidiary has engaged within the last five years in, is engaging in, or intends to engage in any transaction with, or has had within the last five years, now has, or intends to have any contract, agreement, instrument, lease, license, arrangement, or understanding with, any stockholder, any director, officer, or employee of Purchaser or of any Purchaser Subsidiary (except for employment agreements listed in Schedule 3.10(a) and employment and compensation arrangements described in the benefit of current or former shareholdersPurchaser SEC Documents, in each case with such directors, officers, and employees who are not relatives or independent contractors; (d) affiliates described in the next clause), any Contracts concerning relative or affiliate of any stockholder or of any such director, officer, or employee, or any other corporation or enterprise in which any stockholder, any such director, officer, or employee, or any such relative or affiliate then had or now has a partnership 5% or joint venture; or (e) greater equity or voting or other substantial interest, other than those listed and so specified in the Purchaser SEC Documents. The stock ledgers and stock transfer books and the minute book records of Purchaser and the Purchaser Subsidiaries relating to all issuances and transfers of stock by Purchaser and the Purchaser Subsidiaries and all proceedings of the stockholders and the Board of Directors and committees thereof of Purchaser and the Purchaser Subsidiaries since their respective incorporations made available to the Seller's counsel are the original stock ledgers and stock transfer books and minute book records of Purchaser and the Purchaser Subsidiaries or exact copies thereof. Neither Purchaser nor any Contracts under which the consequences Purchaser Subsidiary is in violation or breach of, or in default with respect to, any term of its certificate of incorporation or other charter document or by-laws. Neither Purchaser nor any Purchaser Subsidiary is a member of a default, termination customer or continued performance could have user organization or of a Material Adverse Effecttrade association other than as specified in Schedule 3.09 hereof.

Contracts and Other Instruments. Copies (a) Schedule 3.8(a) sets forth a list of each contract, lease, license agreement, distributor agreement, purchase order, lease, license, indenture or commitment, written or oral, including all Contracts and amendments or modifications thereof, to which the Company or any Subsidiary is a party or by which any of their assets are bound, which requires future expenditures by the Company or any Subsidiary in any manner relating excess of $25,000 or which provides future revenues to the businessesCompany in excess of $25,000. The contracts, license agreements, distributor agreements, purchase orders, leases, licenses, indentures or commitments that are required to be identified in Schedule 3.8(a) are referred to as the Customer Accounts and/or "Contracts." True and complete copies of each of the Acquired Assets Contracts, or where they are oral, true and complete written summaries thereof, have been delivered or made available to Buyersthe Acquiror by the Company. The Sellers have All licenses that the Company and its Subsidiaries has granted to third parties are in the forms of the license agreements furnished by the Buyer with a true Company to Acquiror. (b) Except as set forth in Schedule 3.8(b) attached hereto, there has not been any breach of, nor has there occurred any default under any, Contract on the part of the Company, any Subsidiary or, to the best knowledge of the Company and complete copy the Stockholder, on the part of each written contract, written obligation and written commitmentthe other parties thereto, and with accurately detailed descriptions of each oral contract, oral obligation and oral commitment. With respect to each Contract, (i) each is legal, valid, binding, enforceable and in full force and effect; (ii) each will continue to be legal, valid binding, enforceable and in full force and effect; (ii) each will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation knowledge of the Transactions; (iii) no party thereto is in breach or default, and in Company no event has occurred which, which with the giving of notice or the lapse of time, or both would constitute a breach default under any Contract of the Company or defaultany Subsidiary or under which the Company or any Subsidiary is or may be bound. Except as set forth in Schedule 3.8(b), no consent of any party to any Contract is required in order to permit the execution, delivery or permit termination, modification, or acceleration, under such Contract; (iv) no party thereto has repudiated any provision of such Contract; and (v) the execution and delivery performance of this Agreement and the Transaction Documents and consummation of the transactions contemplated hereby, nor will the execution, delivery or performance of this Agreement or the consummation of the Transactions will not require transactions contemplated hereby, including the consent Merger, result in a breach of any of the terms and provisions of, or constitute a default under, or conflict with, or result in a modification of, or give any third party (other than the Company) right to terminate, cancel, accelerate or increase the rate of interest payable under, any Contract. The Company is not party to: (a) liabilities, obligations, rights or benefits under, any Contract under which of the Company or its Subsidiary Corporations has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, or under which a Lien has been imposed on any of the Acquired Assets, tangible or intangible; (b) any Contract with the Shareholders or affiliates thereof, or regarding the advance of money to the Shareholders, employees, officers, directors or agents of the Company (c) any Contracts under which the Company or its Subsidiary Corporations has created a profit sharing, option, purchase, equity appreciation, deferred compensation severance, or other plan, agreement or arrangement for the benefit of current or former shareholders, directors, officers, employees or independent contractors; (d) any Contracts concerning a partnership or joint venture; or (e) any Contracts under which the consequences of a default, termination or continued performance could have a Material Adverse EffectSubsidiary.

Contracts and Other Instruments. Copies (A) SCHEDULE 3.8(A) sets forth a list of each material contract, license agreement, lease, indenture, commitment or mortgage, trust or other instrument, written or oral, including all Contracts amendments or modifications thereof, to which the Company or any Subsidiary is a party or by which any of their respective assets are bound. The material contracts, license agreements, leases, indentures or commitments that are required to be identified in SCHEDULE 3.8(A) are referred to as the "Contracts." True and in any manner relating to complete copies of each of the businessesContracts, the Customer Accounts and/or the Acquired Assets or where they are oral, true and complete written summaries thereof, have been delivered to Buyers. The Sellers have furnished the Buyer with a true and complete copy Acquiror by the Company. (B) Except as set forth in SCHEDULE 3.8(B) attached hereto, there has not been any breach of, nor has there occurred any default under any, Contract on the part of each written contractthe Company or any Subsidiary or, written obligation and written commitmentto the knowledge of the Company, on the part of the other parties thereto, and with accurately detailed descriptions of each oral contract, oral obligation and oral commitment. With respect to each Contract, (i) each is legal, valid, binding, enforceable and in full force and effect; (ii) each will continue to be legal, valid binding, enforceable and in full force and effect; (ii) each will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation of the Transactions; (iii) no party thereto is in breach or default, and in no event has occurred which, which with the giving of notice or the lapse of time, or both would constitute a breach or defaultdefault under any Contract. Except as set forth in SCHEDULE 3.8(B), or no consent of any party to any Contract is required in order to permit termination, modification, or acceleration, under such Contract; (iv) no party thereto has repudiated any provision of such Contract; and (v) the execution and delivery or performance of this Agreement and the Transaction Documents and consummation of the transactions contemplated hereby, nor will the execution, delivery or performance of this Agreement or the consummation of the Transactions will not require transactions contemplated hereby, including the consent Merger, result in a breach of any of the terms and provisions of, or constitute a default under, or conflict with, or result in a modification of, or give any third party (other than the Company) right to terminate, cancel, accelerate or increase the rate of interest payable under, any Contract. The Company is not party to: (a) liabilities, obligations, rights or benefits under, any Contract under which of the Company or any Subsidiary. After the Closing Date and upon provision of the requisite notice to Xxxxxx Financial Services, Inc. and Xxxxxx Service Company (collectively, "Xxxxxx"), the Surviving Corporation will be able to cause its Subsidiary Corporations has createdsubsidiary to sweep uninvested funds in its customer accounts to any institution offering a market rate, incurred, assumed, without a breach or guaranteed any indebtedness for borrowed money, violation of the documents and instruments governing the management of such customers' accounts; provided that the subsidiary's governing documents and agreements are amended accordingly. (C) Set forth in SCHEDULE 3.8(C) attached hereto is a list of the aggregate dollar amount of all outstanding claims against the Company or any capitalized lease obligationSubsidiary or claims, or under which a Lien has been imposed on any of the Acquired Assetswhich, tangible or intangible; (b) any Contract with the Shareholders or affiliates thereof, or regarding the advance of money to the Shareholders, employees, officers, directors or agents knowledge of the Company (c) any Contracts under which , have been threatened against the Company or its Subsidiary Corporations has created a profit sharingSubsidiary, optionunder each CORPDAL:61883.1 26059-00014 12 Contract presently or heretofore in effect (including, purchasewithout limitation, equity appreciationclaims for back charges, deferred compensation severancerebates, price reductions or other plan, agreement settlements or arrangement for the benefit breaches of current or former shareholders, directors, officers, employees or independent contractors; (d) any Contracts concerning a partnership or joint venture; or (e) any Contracts under which the consequences of a default, termination or continued performance could have a Material Adverse Effectwarranties).