Common use of Material Contracts and Other Agreements Clause in Contracts

Material Contracts and Other Agreements. Schedule 3.12 --------------------------------------- discloses, as of the date hereof, whether written or oral, together with all amendments and modifications thereto, of (a) all contracts and agreements whether or not fully performed pursuant to which the Company has since January 1, 1995 acquired or disposed of a portion of its business or assets which provided for an aggregate purchase price in excess of $100,000 (other than (i) sales of product or inventory; (ii) acquisitions of assets consistent with the Company's 1995 business plan; (iii) sales of individual parcels of surplus properties; and (iv) sales of obsolete equipment, in each case, in the ordinary course of business)(the "Disposed Businesses"); (b) all agreements containing covenants not to compete on the part of the Company or otherwise restricting the ability of the Company to engage in its business (other than pursuant to agreements set forth in clause (g) below or pursuant to leases, reciprocal easements and deeds provided that the restrictions contained in such agreements or instruments do not materially impact the ability of the Company to operate its business as currently conducted); (c) all notes, mortgages, indentures, letters of credit, guarantees, performance bonds and other obligations and agreements and other instruments for or relating to any lending or borrowing (including assumed debt) entered into by the Company or pursuant to which any properties or assets of the Company are pledged or mortgaged as collateral; (d) any employment or consulting agreement with any present or former director, officer or employee of the Company which calls for annual compensation in excess of $85,000; (e) all joint venture or partnership agreements to which the Company is a party or bound; (f) all agreements pursuant to which the Company pays royalties; (g) all area development agreements, letters of commitment and franchise agreements to which the Company is a party or bound; (h) all purchasing co-operative agreements to which the Company is a party or bound; (i) all agreements with Large Suppliers to which the Company is a party or bound (as defined in Section 3.13); and (j) any other contracts and agreements which are material to the Company. The foregoing are hereinafter referred to as the "Contracts." Schedule 3.12 also discloses the aggregate number of surplus properties and operating restaurants disposed of since January 1, 1995. With respect to each Contract, (1) such Contract is valid, binding and enforceable against the Company and, to the best of the Company's knowledge, each other party thereto in accordance with its terms; (2) neither the Company nor, to the best of Company's knowledge, any other party to such Contract is in material breach thereof or material default thereunder; (3) there does not exist any event that, with the giving of notice or the lapse of time or both, would constitute a material breach of or a material default under such Contract, and the Company has not received or given notice of any such breach, default or event; and (4) there have been no waivers or releases of any of the Company's material rights or remedies under any of the Contracts. True and correct copies of the Contracts have been made available to the Buyers. To the best knowledge of the Company, the Company could not reasonably be expected to have any continuing liabilities or obligations in connection with or arising in respect of the Disposed Businesses, individually or in the aggregate, in excess of $200,000.

Material Contracts and Other Agreements. Schedule 3.12 --------------------------------------- discloses, as of the date hereof, 4.12 sets forth whether written or oral, together with all amendments and modifications thereto, of (a) all contracts and agreements Contracts whether or not fully performed pursuant to which the Company Seller has since January 1acquired, 1995 acquired sold or disposed of a transferred all or any portion of its business the Business, assets (other than inventory in the ordinary course of business), Properties or assets equity interests of any Person (including Seller) (whether through purchase, merger, consolidation or otherwise) (the “Acquired Businesses”) which provided for an aggregate purchase price in excess of $100,000 (other than (i) sales of product or inventory; (ii) acquisitions of assets consistent with the Company's 1995 business plan; (iii) sales of individual parcels of surplus properties; and (iv) sales of obsolete equipment, in each case, in the ordinary course of business)(the "Disposed Businesses")25,000; (b) all agreements Contracts containing indemnification provisions, confidentiality provisions or provisions containing covenants not to compete on the part of the Company Seller or which otherwise restricting the ability of the Company Seller in any way to engage in its business (other than pursuant to agreements set forth in clause (g) below or pursuant to leases, reciprocal easements and deeds provided that the restrictions contained in such agreements or instruments do not materially impact the ability of the Company to operate its business as currently conducted)business; (c) all notes, mortgages, indentures, letters of credit, guarantees, performance bonds and other obligations and agreements and other instruments Contracts for or relating to any lending or borrowing Indebtedness (including assumed debtIndebtedness) entered into by the Company Seller or pursuant to which any properties or assets of the Company Properties are pledged or mortgaged as collateral; (d) any employment Contract relating to the employment, consulting or consulting agreement with severance of any Person, including any present or former director, officer or employee of the Company which calls for annual compensation in excess of $85,000Seller ; (e) all joint venture or partnership agreements to which the Company is a party or boundContracts with any Affiliate of Seller ; (f) all agreements pursuant Contracts for the purchase or sale of goods or services by or from Seller, each of which requires a payment or payments by or to which Seller, in the Company pays royaltiesaggregate, of more than $25,000 in any given year; (g) all area development agreementsother Contracts, letters including real or personal property Leases, involving aggregate payments of commitment and franchise agreements to which more than $25,000 during the Company is term thereof or with a term of more than one (1) year, including all extensions thereof, at the option of any party or boundother than Seller ; (h) all purchasing co-operative agreements Contracts with respect to which the Company is a party or boundIntellectual Property; and (i) all agreements with Large Suppliers to which the Company is a party or bound (as defined in Section 3.13); and (j) any other contracts and agreements Contracts which are material to Seller or the Company. The Business, each of the foregoing are hereinafter described under clauses (a) through (i), including each of the same listed on Schedule 4.12, collectively referred to as the "“Material Contracts." Schedule 3.12 also discloses the aggregate number of surplus properties and operating restaurants disposed of since January 1, 1995” Seller is not subject to Contracts with “take or pay” or minimum requirements provisions. With respect to each Material Contract, except as set forth on Schedule 4.12, (1i) such Material Contract is valid, binding and enforceable against the Company andparties thereto and is in full force and effect and will remain enforceable in such manner and be in full force and effect after the consummation of the transactions contemplated by this Agreement and the Related Documents, (ii) Seller is not and to the best knowledge of the Company's knowledge, each other party thereto in accordance with its terms; (2) neither the Company nor, to the best of Company's knowledge, Seller or any Shareholder any other party to such Material Contract is not in a material breach thereof or material default thereunder; , (3iii) there does not exist any event that, with the giving of notice or the lapse of time or both, would constitute a material breach of or a material default by Seller or to the knowledge of Seller or any Shareholder any other party to such Material Contract under such Material Contract, and none of the Company Seller or any Affiliate thereof has not received or given notice of any such breach, default or event; and , (4iv) there have been no waivers or releases of any of the Company's material rights or remedies under any of the Contracts. True true, complete and correct copies of the Contracts each Material Contract have been made available delivered to Purchaser or their representatives, (v) Seller has not waived any material rights under any Material Contract, (vi) Seller does not know of any defense to the Buyers. To the best knowledge validity or enforceability of the Companyany Material Contract, the Company could (vii) Seller has not reasonably be expected to have received or given notice of any continuing liabilities breach or obligations default in connection with any Material Contract and (viii) Seller has no existing Liability (contingent or arising in otherwise), including with respect to any indemnification or guarantee obligation, with respect to any Acquired Business. The work completed by Seller under any Material Contract which requires customer or third party approval or acceptance which has not been received as of the Disposed BusinessesClosing, individually or will meet all material requirements and specifications of such Material Contract. Schedule 4.12 sets forth all outstanding proposals relating to the Business that are reasonably expected to result in the aggregate, revenues in excess of $200,00025,000.

Material Contracts and Other Agreements. Schedule 3.12 --------------------------------------- discloses, as of the date hereof, whether written or oral, together with all amendments and modifications thereto, of (a) Schedule 3.15(a) contains a true and complete list of all contracts and agreements whether of the following Contracts to which Seller or not fully performed any of its Subsidiaries is a party or by which any Purchased Asset is bound, other than a Seller Benefit Plan set forth on Schedule 3.16 (a) (each such contract, a “Material Contract”): (i) any Contract pursuant to which a third-party Person has provided or, in the Company has since January 1future, 1995 acquired may provide, marketing, finder, brokerage or disposed of a portion of other similar services in connection with mortgage loans originated by Seller and its business or assets which provided for an aggregate purchase price in excess of $100,000 (other than (i) sales of product or inventorySubsidiaries; (ii) acquisitions of assets consistent with the Company's 1995 business planLeases; (iii) sales of individual parcels of surplus propertiesany partnership, joint venture, shareholders’, strategic alliance, limited liability company, teaming, cooperation and any other similar Contracts; and (iv) sales any Contract containing any executory indemnification obligations on the part of obsolete equipmentSeller or any of its Subsidiaries relating to the acquisition, in each caselease or disposition, directly or indirectly by merger or otherwise, of assets or capital stock or other equity interests of another Person; (v) any Contract relating to a transaction with an Affiliate, director or officer of Seller or any of its Subsidiaries; (vi) any material Contract relating to Intellectual Property or Systems, other than (A) non-exclusive licenses granted to customers in the ordinary course of business)(the "Disposed Businesses")business and (B) any Contracts for off-the-shelf shrinkwrap, clickwrap or similar commercially available non- custom software with annual fees of less than $250,000; (bvii) all agreements containing covenants not to compete on the part of the Company or otherwise restricting the ability of the Company to engage in its business any Contract (other than pursuant to agreements set forth in clause (gx) below or pursuant to leases, reciprocal easements and deeds provided that the restrictions contained in such agreements or instruments do not materially impact the ability of the Company to operate its business as currently conducted); (c) all notes, mortgages, indentures, letters of credit, guarantees, performance bonds and other obligations and agreements and other instruments for or relating to any lending completed business acquisition by Seller or borrowing any of its Subsidiaries within the last three (including assumed debt3) entered into years or (y) relating to acquisitions or dispositions by the Company Seller or any of its Subsidiaries pursuant to which (1) Seller or any properties of its Subsidiaries has any ongoing indemnification or assets of the Company are pledged or mortgaged as collateral; (d) any employment or consulting agreement with any present or former director, officer or employee of the Company which calls for annual compensation in excess of $85,000; (e) all joint venture or partnership agreements to which the Company is a party or bound; (f) all agreements pursuant to which the Company pays royalties; (g) all area development agreements, letters of commitment and franchise agreements to which the Company is a party or bound; (h) all purchasing co-operative agreements to which the Company is a party or bound; (i) all agreements with Large Suppliers to which the Company is a party or bound (as defined in Section 3.13); and (j) any other contracts and agreements which outstanding obligations that are material to the Company. The foregoing are hereinafter referred Business or (2) Seller or any of its Subsidiaries has continuing “earn out” or other contingent payment obligations; (viii) any Contracts providing for securitization or other structured financing facilities; (ix) any Contracts that contain an exclusivity, most favored nation, right of first offer or refusal, or non-compete provision; and (x) any other Contract that (A) involves the payment in any calendar year by or to as Seller or any of its Subsidiaries of more than $250,000 in the "Contracts." Schedule 3.12 also discloses the aggregate number of surplus properties and operating restaurants disposed of since January 1, 1995. With respect to each Contractaggregate, (1B) such is (b) Each Material Contract is validin full force and effect and constitutes a legal, valid and binding and agreement, enforceable against the Company and, to the best of the Company's knowledge, Seller (or its applicable Subsidiary) and each other party thereto thereto, in accordance with its terms; (2) neither the Company nor, subject to the best Bankruptcy and Equity Exceptions. None of Company's knowledge, Seller nor any other party to such any Material Contract is in material breach thereof or material default thereunder; (3) under, nor has there does not exist occurred any event or condition that, with or without the passage of time or giving of notice or the lapse of time (or both), would constitute a material breach of default under, or a material default under such Contractpermit the termination, and the Company has not received modification or given notice of acceleration of, any such breach, default or event; Material Contract. Seller has provided Buyer with true and (4) there have been no waivers or releases of any of the Company's material rights or remedies under any of the Contracts. True and correct complete copies of the Contracts have been made available to the Buyers. To the best knowledge of the Company, the Company could not reasonably be expected to have any continuing liabilities or obligations in connection with or arising in respect of the Disposed Businesses, individually or in the aggregate, in excess of $200,000each Material Contract.

Material Contracts and Other Agreements. Schedule 3.12 --------------------------------------- disclosesThe Disclosure Schedules disclose, as of the date hereof, whether written or oral, together with all amendments and modifications thereto, of oral (a) all contracts contracts, agreements and agreements commitments whether or not fully performed pursuant to which the Company or any of the Subsidiaries has since January July 1, 1995 1992 acquired or disposed (the "Disposed Businesses") of a portion of its business or assets which provided for an aggregate purchase price in excess of One Hundred Thousand Dollars ($100,000 (other than (i) sales of product or inventory; (ii) acquisitions of assets consistent with the Company's 1995 business plan; (iii) sales of individual parcels of surplus properties; and (iv) sales of obsolete equipment, in each case, in the ordinary course of business)(the "Disposed Businesses"100,000); (b) all agreements containing covenants not to compete on the part of the Company or any of the Subsidiaries or otherwise restricting the ability of the Company or any of the Subsidiaries in any material way to engage in its business (other than pursuant to agreements set forth in clause (g) below or pursuant to leases, reciprocal easements and deeds provided that the restrictions contained in such agreements or instruments do not materially impact the ability of the Company to operate its business as currently conducted)business; (c) all material notes, mortgages, credit agreements, lines of credit, indentures, letters of credit, guarantees, performance bonds and other obligations and agreements and other instruments for or relating to any lending or borrowing (including assumed debt) entered into by the Company or any of the Subsidiaries or pursuant to which any properties or assets of the Company or any of the Subsidiaries are pledged or mortgaged as collateral; (d) any employment or consulting agreement with any present or former director, officer or employee of the Company or any of the Subsidiaries which calls for annual compensation in excess of Fifty Thousand Dollars ($85,00050,000); (e) all joint venture contracts, supply orders, purchase orders or partnership other agreements to which whereby the Company is or any of the Subsidiaries have purchased or agreed to sell a party material quantity of inventory, supplies, bottled wine, wine in bulk or boundgrapes; (f) all contracts, supply orders, purchase orders or other agreements pursuant to which whereby the Company pays royalties; or any of the Subsidiaries have purchased or agreed to purchase a material quantity of inventory, supplies, bottled wine, wine in bulk or grapes and (g) all area development agreements, letters of commitment and franchise agreements to which the Company is a party or bound; (h) all purchasing co-operative agreements to which the Company is a party or bound; (i) all agreements with Large Suppliers to which the Company is a party or bound (as defined in Section 3.13); and (j) any other contracts and agreements which are material to the CompanyCompany or any of the Subsidiaries. The foregoing are hereinafter referred to as the "Contracts." Schedule 3.12 also discloses the aggregate number of surplus properties and operating restaurants disposed of since January 1, 1995. With respect to each Contract, (1) such Contract is valid, binding and enforceable against the Company and, to the best of the Company's knowledge, each other party thereto in accordance with its terms; (2) neither the Company or any of the Subsidiaries nor, to the best of Company's knowledge, any other party to such Contract is in material breach thereof or material default thereunder; and (3) there does not exist any event that, with the giving of notice or the lapse of time or both, would constitute a material breach of or a material default under such Contract, and neither the Company nor any of the Subsidiaries has not received or given notice of any such breach, default or event; and (4) there have been no waivers or releases of any of the Company's material rights or remedies under any of the Contracts. True and correct copies of the Contracts have been made available to the Buyers. To the best knowledge of the Company, the Company and the Subsidiaries could not reasonably be expected to have any continuing liabilities or obligations in connection with or arising in respect of the Disposed Businesses, individually or in the aggregate, in excess of One Hundred Thousand Dollars ($200,000100,000).