Common use of Contracts; Debt Instruments Clause in Contracts

Contracts; Debt Instruments. (i) Set forth on the Company Disclosure Schedule is (x) a list of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness of the Company or any of its subsidiaries in an aggregate principal amount in excess of $250,000 is outstanding or may be incurred and (y) the respective principal amounts currently outstanding thereunder. For purposes of this Agreement, "indebtedness" shall mean, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (B) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), (F) all capitalized lease obligations of such person, (G) all obligations of others secured by any lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business) and (J) all guarantees and arrangements having the economic effect of a guarantee of such person of any indebtedness of any other person.

Contracts; Debt Instruments. (ia) Set forth on As of the date hereof, except as filed as exhibits to the Company Disclosure Schedule SEC Filings filed prior to the date of this Agreement or with respect to a Contract that is (x) no longer in effect or a list of all loan or credit agreementsPlan, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness none of the Company or any of its subsidiaries in an aggregate principal amount in excess of $250,000 Company Subsidiary is outstanding or may be incurred and (y) the respective principal amounts currently outstanding thereunder. For purposes of this Agreement, "indebtedness" shall mean, with respect a party to any personContract, without duplicationand none of the Company or any Company Subsidiary or any of their properties is bound by a Contract, in each case, that falls into any of the following categories: (Ai) all obligations any “material contract” (as such term is defined in Item 601(b)(10) of such person for borrowed moneyRegulation S-K of the SEC); (ii) relating to or reflecting the formation, creation, ownership, operation, management or with respect to deposits or advances control of any kind joint venture, partnership or similar arrangement, including arrangements for the sharing of revenue, profits, losses, costs or liabilities from operations relating to such personarrangements; (iii) involving the acquisition from another Person or disposition to another Person, directly or indirectly (B) all obligations by merger, license or otherwise), other than any acquisition or disposition of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services supplies, fixtures and supplies incurred IT Assets in the ordinary course of business consistent with past practices, of assets, properties, capital stock or Equity Interests of another Person, including Contracts for any such person's businessacquisition or disposition which has already been consummated that contains representations, warranties, covenants, indemnities or other obligations (including indemnification, “earn-out” or other contingent obligations), in each case, that are still in effect; (Fiv) all capitalized involving (A) the payment by the Company or any Company Subsidiary of amounts of more than $500,000 during the 12 month period preceding the date of this Agreement or (B) the receipt by the Company or any Company Subsidiary of amounts of more than $500,000 during the year ended December 31, 2015; (v) relating to Indebtedness for borrowed money or any financial guaranty; (vi) that contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to the Company, any Company Subsidiary or any of the Company’s current or future Affiliates, or which restricts the conduct of any line of business by the Company or any Company Subsidiary or any of the Company’s current or future Affiliates (including, but not limited to Contracts containing “most favored nation” provisions), or any geographic area in which the Company, any Company Subsidiary or any of the Company’s current or future Affiliates may conduct business; (vii) under which the Company or any of the Company Subsidiaries has advanced or loaned any amount of money to any of its officers, directors, employees or consultants; (viii) that prohibits or materially limits the right of the Company or any Company Subsidiary to make, sell or distribute any products or services or use, transfer, license, distribute or enforce any Material Intellectual Property rights; (ix) for lease obligations of such person, (G) all obligations of others secured by any lien on personal property or assets owned real property involving aggregate payments in excess of $1,000,000 in any calendar year that are not terminable within sixty (60) days; (x) under which (A) the Company or acquired by such personany of the Company Subsidiaries grants to a Third Party a license or any other right to use any Intellectual Property or (B) a Third Party grants to the Company or any of the Company Subsidiaries a license or any other right to use any Intellectual Property, whether in each case, that is material to the businesses of the Company or not the obligations secured thereby have been assumedCompany Subsidiaries, except for (Hx) all obligations licenses granted to the Company or any of such person under interest rate or currency hedging transactions (valued at the termination value thereof)Company Subsidiaries for generally commercially available, (I) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred non-customized Software entered into in the ordinary course of business) business and (Jy) all guarantees licenses related exclusively to the MyPoints Subsidiary or the StayFriends Subsidiaries; (xi) between the Company or any Company Subsidiary and arrangements having any executive officer, director or Affiliate of the economic effect of a guarantee of such person Company or any Company Subsidiary, or any Affiliate, relative or spouse of any indebtedness such officer, director or Affiliate of any Person beneficially owning five percent (5%) or more of the outstanding Company Common Stock; (xii) containing any standstill or similar agreement pursuant to which the Company or any Company Subsidiary has agreed not to acquire assets or securities of another Person; (xiii) providing for indemnification by the Company or any Company Subsidiary of any Person, excluding indemnities contained in Contracts for the purchase, sale or license of products, services or Intellectual Property in the ordinary course of business consistent with past practice and that are not material to the Company and the Company Subsidiaries, taken as a whole; and (xiv) containing a put, call or similar right pursuant to which the Company or any Company Subsidiary could be required to purchase or sell, as applicable, any Equity Interests of any Person or assets; Each Contract of the type described in this Section 3.12(a), whether or not set forth in Section 3.12 of the Company Disclosure Schedule, other personthan a Plan, is referred to herein as a “Company Material Contract.” (b) Each Company Material Contract is valid and binding on the Company and each Company Subsidiary party thereto and, to the Company’s Knowledge, each other party thereto, and in full force and effect (except to the extent that such Company Material Contract’s enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other similar Law affecting the enforcement of creditors’ rights generally or by general equitable principles), and the Company and each Company Subsidiary has in all material respects performed all obligations required to be performed by it under each Company Material Contract. There has been no violation or default under any Company Material Contract or any other Contract to which it is a party or by which it or any of its properties or assets is bound, and, to the Company’s Knowledge, no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any Company Subsidiary, except for violations or defaults that have not or would not, individually or in the aggregate, reasonably be expected to (1) prevent or materially delay or materially impair the consummation of the Merger or (2) be material to the Company and the Company Subsidiaries, taken as a whole.

Contracts; Debt Instruments. (i) Set forth Neither the Company nor any of its subsidiaries is in violation of or in default under (nor does there exist any condition which upon the passage of time, the giving of notice or both would cause such a violation of or default under) any loan or credit agreement, note, bond, mortgage, indenture, lease, permit, concession, franchise, license or any other contract, agreement, arrangement or understanding to which it is a party or by which it or any of its properties or assets is bound, except for violations or defaults that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect on the Company. (ii) The Company Disclosure Schedule is has made available to Parent (x) a list true and correct copies of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness of the Company or any of its subsidiaries in an aggregate principal amount in excess of $250,000 100,000 is outstanding or may be incurred and (y) accurate information regarding the respective principal amounts currently outstanding thereunder. For purposes of this Agreement, "indebtedness" shall mean, with respect to any personPerson, without duplication, (A) all obligations of such person Person for borrowed money, or with respect to deposits or advances of any kind to such personPerson, (B) all obligations of such person Person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person Person under conditional sale or other title retention agreements relating to property purchased by such personPerson, (ED) all obligations of such person issued or assumed as the deferred purchase price of property or services Person (excluding obligations of such person Person pursuant to creditors for raw materials, inventory, services and supplies incurred written purchase orders in the ordinary course of such person's businessbusiness and in customary amounts consistent with past practices), (FE) all capitalized lease obligations of such personPerson, (GF) all obligations of others secured by any lien Lien on property or assets owned or acquired by such personPerson, whether or not the obligations secured thereby have been assumed, (HG) all obligations of such person Person under interest rate or currency hedging transactions (valued at the termination value thereof), (IH) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business) Person and (JI) all guarantees and arrangements having the economic effect of a guarantee of such person Person of any indebtedness of any other personPerson.

Contracts; Debt Instruments. (i) Set forth on None of TriNet, any TriNet Managed Subsidiary and, to TriNet's Knowledge, any TriNet Non-Managed Subsidiary has received written notice that it is in violation of or in default under, in any material respect (nor does there exist any condition which upon the Company Disclosure Schedule is (x) passage of time or the giving of notice or both would cause such a list violation of all or default under), any material loan or credit agreementsagreement, notesnote, bondsbond, mortgagesmortgage or indenture or any material lease, indentures and permit, concession, franchise or license, or any material agreement to acquire real property, or any other agreements and instruments pursuant material contract, agreement, arrangement or understanding, to which any indebtedness of the Company it is a party or by which it or any of its subsidiaries properties or assets is bound, except for violations or defaults that would not, individually or in the aggregate, reasonably be expected to result in a TriNet Material Adverse Effect. (ii) Section 3.1(m)(ii) of the TriNet Disclosure Letter sets forth (A) a detailed list of all indebtedness of TriNet, the TriNet Managed Subsidiaries and, to TriNet's Knowledge, the TriNet Non-Managed Subsidiaries, under which an aggregate principal amount in excess of $250,000 5,000,000 per item is outstanding or may be incurred incurred, other than (i) indebtedness payable to TriNet or a wholly owned TriNet Subsidiary and (yii) indebtedness which is reflected in the financial statements set forth in TriNet Filed SEC Documents and (B) the respective principal amounts currently outstanding thereunderthereunder or, in the case of financial products the notional amounts thereof, on March 31, 1999. For purposes of this AgreementSection 3.1(m)(ii) and Section 3.2(m)(ii), "indebtedness" shall mean, with respect to any person, without duplication, (A) all obligations indebtedness of such person for borrowed money, whether secured or with respect to deposits or advances of any kind to such personunsecured, (B) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), (FC) all capitalized lease obligations of such person, (G) all obligations of others secured by any lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (HD) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business) and (JE) all guarantees and arrangements having the economic effect of a guarantee of such person of any such indebtedness of any other person. TriNet has previously delivered or made available to Starwood true and correct copies of all of the material agreements relating to the indebtedness disclosed in Section 3.1(m)(ii) of the TriNet Disclosure Letter.

Contracts; Debt Instruments. (i) Set forth Neither the Company nor any of its Subsidiaries is in violation of or in default under (nor does there exist any condition which upon the passage of time or the giving of notice would cause such a violation of or default under) any loan or credit agreement, note, bond, mortgage, indenture, lease, permit, concession, franchise, license or any other contract, agreement, arrangement or understanding to which it is a party or by which it or any of its properties or assets is bound, except for violations or defaults that individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect on the Company, impair the ability of the Company to perform its obligations under this Agreement in any material respect or delay in any material respect or prevent the consummation of the transactions contemplated by this Agreement. The agreements described in Section 3.01(p) of the Company Disclosure Schedule is are in full force and effect and are binding on the parties thereto. (ii) The Company has made available to Parent (x) a list true and correct copies of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness Indebtedness of the Company or any of its subsidiaries Subsidiaries in an aggregate principal amount in excess of $250,000 600,000 is outstanding or may be incurred and (y) accurate information regarding the respective principal amounts currently outstanding thereunder. For purposes of this Agreement, "indebtednessAgreement,"Indebtedness" shall mean, with respect to any personPerson, without duplication, (A) all obligations of such person Person for borrowed money, or with respect to deposits or advances of any kind to such personPerson, (B) all obligations of such person Person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person Person under conditional sale or other title retention agreements relating to property purchased by such personPerson, (ED) all obligations of such person Person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person Person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such personPerson's business), (FE) all capitalized lease obligations of such personPerson, (GF) all obligations of others secured by any lien a Lien on property or assets owned or acquired by such personPerson, whether or not the obligations secured thereby have been assumed, (HG) all obligations of such person Person under interest rate or currency hedging transactions (valued at the termination value thereof), (IH) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business) Person and (JI) all guarantees and arrangements having the economic effect of a guarantee of such person Person of any indebtedness Indebtedness of any other personPerson.

Contracts; Debt Instruments. (i) Except as disclosed in the Filed SEC Documents, there are no contracts or agreements that are material to the business, properties, assets, condition (financial or otherwise), results of operations or prospects of Digital and its subsidiaries taken as a whole. Neither Digital or any of its subsidiaries is in violation of or in default under (nor does there exist any condition upon which the passage of time or the giving of notice would cause such a violation of or default under) any loan or credit agreement, note, bond, mortgage, indenture, lease, permit, concession, franchise, license or any other contract, agreement, arrangement or understanding to which it is a party or by which it or any of its properties or assets is bound, except for violations or defaults that individually or in the aggregate would not have a material adverse effect on Digital. (ii) Set forth on the Company Digital Disclosure Schedule is (x) a list of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness of the Company Digital or any of its subsidiaries in an aggregate principal amount in excess of $250,000 25,000 is outstanding or may be incurred and (y) the respective principal amounts currently outstanding thereunder. For purposes of this Agreement, "indebtedness" shall mean, with respect to any person, without duplication, (A4) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, ; (B5) all obligations of such person evidenced by bonds, debentures, notes note or similar instruments, ; (C6) all obligations of such person upon which interest charges are customarily paid, ; (D7) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, ; (E) 8) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), ; (F9) all capitalized lease obligations of such person, ; (G10) all obligations of others secured by any lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, ; (H11) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), ; (I12) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business) person; and (J13) all guarantees and arrangements having the economic effect of a guarantee of such person of any indebtedness of any other person.

Contracts; Debt Instruments. (i) Set forth on in Section 4.1(r) of the Company Viasoft Disclosure Schedule Letter is (x) a list of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness of the Company Viasoft or any of its subsidiaries Subsidiaries in an aggregate principal amount in excess of $250,000 75,000 is outstanding or may be incurred and (y) the respective principal amounts currently outstanding thereunder. For purposes of this Agreement, "indebtedness" shall will mean, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (B) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), (F) all capitalized lease obligations of such person, (G) all obligations of others secured by any lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business) and (J) all guarantees and arrangements having the economic effect of a guarantee of such person of any indebtedness of any other person.

Contracts; Debt Instruments. Except as actually filed as part of the ---- --------------------------- SEC Documents or as set forth on Schedule 2.16, there is no contract or ------------- agreement binding on the Company or any of its subsidiaries or any of their assets or properties that is or was required to be filed with any SEC Document. Neither the Company nor any of its subsidiaries is in violation of or in default under (inor does there exist any condition which upon the passage of time or the giving of notice, or both, would cause such a violation of or default under) any loan or credit agreement, note, bond, mortgage, indenture, lease, or any other contract, agreement, arrangement or understanding, to which it is a party or by which it or any of its properties or assets is bound, except for violations or defaults that could not reasonably be expected to result in a Material Adverse Effect. (b) Set forth on Schedule 2.16(b) of the Company Disclosure Schedule Agreement is (xi) a list of all loan or ---------------- credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness of the Company or any of its subsidiaries in an aggregate principal amount in excess of $250,000 25,000 is outstanding or may be incurred and (yii) the respective principal amounts currently outstanding thereunder. For purposes of this AgreementSection 2.16, "indebtedness" shall mean, with respect to any person, without duplication, ------------- (Ai) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (Bii) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (Ciii) all obligations of such person upon which interest charges are customarily paid, (Div) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (Ev) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), (Fvi) all capitalized lease obligations of such person, (Gvii) all obligations of others secured by any lien Lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (Hviii) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), (Iix) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business) and (Jx) all guarantees and arrangements having the economic effect of a guarantee of such person of any indebtedness of any other person.

Contracts; Debt Instruments. (ia) Except as actually filed as part of the ---- --------------------------- SEC Documents or as set forth on Schedule 2.16, there is no contract or ------------- agreement binding on the Company or any of its subsidiaries or any of their assets or properties that is or was required to be filed with any SEC Document. Neither the Company nor any of its subsidiaries is in violation of or in default under (nor does there exist any condition which upon the passage of time or the giving of notice, or both, would cause such a violation of or default under) any loan or credit agreement, note, bond, mortgage, indenture, lease, or any other contract, agreement, arrangement or understanding, to which it is a party or by which it or any of its properties or assets is bound, except for violations or defaults that could not reasonably be expected to result in a Material Adverse Effect. (b) Set forth on Schedule 2.16(b) of the Company Disclosure Schedule Agreement is (xi) a list of all loan or ---------------- credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness of the Company or any of its subsidiaries in an aggregate principal amount in excess of $250,000 25,000 is outstanding or may be incurred and (yii) the respective principal amounts currently outstanding thereunder. For purposes of this AgreementSection 2.16, "indebtedness" shall mean, with respect to any person, without duplication, ------------- (Ai) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (Bii) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (Ciii) all obligations of such person upon which interest charges are customarily paid, (Div) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (Ev) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), (Fvi) all capitalized lease obligations of such person, (Gvii) all obligations of others secured by any lien Lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (Hviii) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), (Iix) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business) and (Jx) all guarantees and arrangements having the economic effect of a guarantee of such person of any indebtedness of any other person.

Contracts; Debt Instruments. (i) Set forth on the Company Disclosure Schedule Letter is (x) a list of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any indebtedness of the Company or any of its subsidiaries in an aggregate principal amount in excess of $250,000 is outstanding or may be incurred and (y) the respective principal amounts currently outstanding thereunder. For purposes of this Agreement, "indebtedness" shall mean, with respect to any person, without duplication, (A) all obligations of such person for borrowed money, or with respect to deposits or advances of any kind to such person, (B) all obligations of such person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such person upon which interest charges are customarily paid, (D) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person, (E) all obligations of such person issued or assumed as the deferred purchase price of property or services (excluding obligations of such person to creditors for raw materials, inventory, services and supplies incurred in the ordinary course of such person's business), (F) all capitalized lease obligations of such person, (G) all obligations of others secured by any lien on property or assets owned or acquired by such person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such person under interest rate or currency hedging transactions (valued at the termination value thereof), (I) all letters of credit issued for the account of such person (excluding letters of credit issued for the benefit of suppliers to support accounts payable to suppliers incurred in the ordinary course of business) and (J) all guarantees and arrangements having the economic effect of a guarantee of such person of any indebtedness of any other person.