Contracts and Leases Schedule 4.10 sets forth a true and complete list of all Leases and executory Contracts of the Company that are material to the Business, and Sellers have delivered to Buyer true and complete copies of all such Leases and Contracts, each as amended as of the Agreement Date (the “Material Contracts”). Subject to receipt of the Necessary Consents and compliance with Section 6.10 and subject to the entry of the Sale Order, and any ancillary orders of the Bankruptcy Court pertaining to assumption and assignment of Contracts (a) each of the Material Contracts is in full force and effect and constitutes a valid and binding obligation of the Company or Sellers, and, to the Knowledge of Sellers, each other party thereto, and (b) except as a result of the commencement of the Bankruptcy Cases, the Company or Sellers are not in breach or default in any material respect under any of the Material Contracts and, to the Knowledge of Sellers, the other parties to such Contracts are not in breach or default in any material respect thereunder (and in each such case, to the Knowledge of Sellers, no event exists that with the passage of time or the giving of notice would constitute such material breach or default in any material respect, result in a loss of material rights, result in the payment of any damages or penalties or result in the creation of any Liens thereunder or pursuant thereto other than Permitted Liens); except (i) for those defaults that will be cured in accordance with the Sale Order, are not required to be cured pursuant to section 365(b)(1)(A) of the Bankruptcy Code, or waived in accordance with section 365 of the Bankruptcy Code, or (ii) to the extent such breach or default would not reasonably be expected to have a Seller Material Adverse Effect. Except for filings in the Chapter 11 Cases, to Sellers’ Knowledge, none of the Material Contracts have been cancelled or otherwise terminated by the Company or Sellers, and neither the Company nor Sellers have not delivered any written notice to any counterparty to such Material Contract regarding any such cancellation or termination by the Company or Sellers.
Contracts; No Defaults (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Contract that involves performance of services or delivery of goods or materials by the Company of an amount or value in excess of $100,000.
(ii) each Contract that involves performance of services or delivery of goods or materials to the Company of an amount or value in excess of $10,000:
(iii) each current Insurance Policy;
(iv) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of the Company in excess of $10,000;
(v) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item of less than $10,000, and having an aggregate value of all items having a value per item of less than $10,000 items not exceeding $50,000.00);
(vi) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements between the Company and current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vii) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(viii) each joint venture, partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by the Company with any other Person;
(ix) each Contract containing covenants that in any way purport to restrict the business activity of the Company or limit the freedom of the Company to engage in any line of business or to compete with any Person;
(x) each Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xi) each power of attorney that is currently effective and outstanding;
(xii) each Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Company to be responsible for consequential damages;
(xiii) each Contract for capital expenditures in excess of $10,000;
(xiv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company other than in the Ordinary Course of Business; and
(xv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing, except for change orders which will have no material adverse effect to the Company;.
(b) Part 3.17(b) of the Disclosure Letter is a work in progress schedule setting forth the total amount of each contract and certain information as reflected in the captions thereto.
Material Contracts and Obligations All agreements, contracts, leases, licenses, instruments, commitments (oral or written), indebtedness, liabilities and other obligations to which any Group Company is a party or by which it is bound that (i) are material to the conduct and operations of its business and properties; (ii) involve any of the officers, consultants, directors, employees or shareholders of any Group Company; or (iii) obligate any Group Company to share, license or develop any product or technology are listed in Section 3.12 of the Disclosure Schedule and have been provided to the Investor and its counsel. For purposes of this Section 3.12, “material” shall mean any agreement, contract, indebtedness, Liability, arrangement or other obligation either (i) having an aggregate value, cost, Liability or amount of RMB4,000,000 or more, or (ii) not terminable upon no more than thirty (30) days’ notice without penalty or obligation, or (iii) relating to the leased stores with a monthly rental of RMB300,000 or more and leased warehouses.
Contracts and Commitments; No Default (a) Except as set forth in Schedule 3.22, the Target:
(i) has no written or oral contract, commitment, agreement or arrangement with any person which (A) requires payments individually in excess of Fifteen Thousand Dollars ($15,000) annually or in excess of Fifty Thousand Dollars ($50,000) over its term (including without limitation periods covered by any option to extend or renew by either party) and (B) is not terminable on thirty (30) days’ or less notice without cost or other Liability;
(ii) does not pay any person or entity cash remuneration at the annual rate (including without limitation guaranteed bonuses) of more than Fifty Thousand ($50,000) for services rendered;
(iii) is not restricted by agreement from carrying on its businesses or any part thereof anywhere in the world or from competing in any line of business with any person or entity;
(iv) is not subject to any obligation or requirement to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any person or entity;
(v) is not party to any agreement, contract, commitment or loan to which any of its directors, officers or shareholders or any Affiliate (or former Affiliate) thereof is a party;
(vi) is not subject to any outstanding sales or purchase contracts, commitments or proposals which is anticipated to result in any loss upon completion or performance thereof;
(vii) is not party to any purchase or sale contract or agreement that calls for aggregate purchases or sales in excess over the course of such contract or agreement of Fifty Thousand Dollars ($50,000) or which continues for a period of more than twelve months (including without limitation periods covered by any option to renew or extend by either party) which is not terminable on sixty (60) days’ or less notice without cost or other Liability at or any time after the Closing; and
(viii) has no distributorship, dealer, manufacturer’s representative, franchise or similar sales contract relating to the payment of a commission.
(b) True and complete copies (or summaries, in the case of oral items) of all items disclosed pursuant to this Section 3.22 have been made available to the Company for review. Except as set forth in Schedule 3.22, all such items are valid and enforceable by and against the Target in accordance with their respective terms, the Target is not in breach, violation or default, however defined, in the performance of any of its obligations thereunder, and no facts and circumstances exist which, whether with the giving of due notice, lapse of time, or both, would constitute such a breach, violation or default thereunder or thereof; and to the best knowledge of the Target, no other parties thereto are in breach, violation or default, however defined, thereunder or thereof, and no facts or circumstances exist which, whether with the giving of due notice, lapse of time, or both, would constitute such a breach, violation or default thereunder or thereof.
Material Contracts and Commitments (a) Section 3.16 of the Company Disclosure Schedule contains a true and complete list as of the date of this Agreement of all of the following contracts, agreements and commitments, whether oral or written ("Contracts"), to which the Company or any of its subsidiaries is a party or by which any of them or any of their material Company Assets is bound, as each such contract or commitment may have been amended, modified or supplemented:
(i) any agreement (including all master commitments and pool purchase contracts) between the Company or any of its subsidiaries and any Agency or Investor pursuant to which the Company and its subsidiaries sold more than $175 million in principal amount of Mortgage Loans during fiscal year 1999, and all insurance or guaranty contracts (including contracts with any private mortgage insurer or Pool (as defined herein) insurance provider with respect to the Mortgage Loans;
(ii) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for rent in excess of $100,000 during any twelve-month period;
(iii) any agreement for the lease of real property providing for the payment of rent in excess of $250,000 during any twelve-month period;
(iv) any agreement (or group of related agreements) or indemnity under which the Company or any of its subsidiaries has created, incurred, assumed or guaranteed any debt including without limitation any indebtedness for borrowed money, warehouse lines of credit, or any capitalized lease or purchase money obligation (except for intercompany obligations);
(v) any agreement under which the Company or any of its subsidiaries has granted a lien, pledge, security interest or other encumbrance upon any of its material assets;
(vi) any agreement under which the Company or any of its subsidiaries has an obligation to indemnify a director, officer or employee;
(vii) any agreement for the employment of any individual on a full-time, part-time, consulting or other basis other than oral retainers of professionals terminable at will except for employment agreements of employees with a salary of less than $100,000 who have signed the Company's or any of its subsidiaries' standard form employment agreement (excluding commissioned employees);
(viii) any agreement concerning confidentiality or noncompetition given by the Company other than those agreements (A) with employees on the Company's standard form employment, (B) related to Company Stock Options, (C) entered into with any Person in connection with the proposed sale of the Company and (D) that do not materially restrict the manner in which the Company or any of its subsidiaries conduct its business;
(ix) any other plan, contract or arrangement, whether formal or informal, which involves direct or indirect compensation (including bonus, stock option, severance, golden parachute, deferred compensation, special retirement, consulting and similar agreements and all agreements and arrangements regarding the Company's net branches) for the benefit of one or more of the current or former directors, officers or employees of the Company (other than Company Employee Plans described in Section 3.12(a));
(x) any guaranty or suretyship, performance bond or contribution agreement;
(xi) any marketing, sales representative or dealership agreement with respect to which the fees paid or payable by the Company are or will be in excess of $100,000; any material agreement relating to e-commerce or agreements related to the Company's "net branches"; and
(xii) any other material contract or commitment.
(b) The Company has heretofore made available to the Parent true and complete copies of all of the Contracts required to be set forth in Section 3.16 of the Company Disclosure Schedule. Each such Contract is a valid and binding agreement of the Company or one of its subsidiaries in accordance with its terms, and is in full force and effect (except as set forth in Section 3.16 of the Company Disclosure Schedule), except where the failure to be valid and binding and in full force and effect would not individually or in the aggregate have a Material Adverse Effect. Neither the Company nor any of its subsidiaries is in default with respect to any such Contract, nor (to the Company's Knowledge) does any condition exist that with notice or lapse of time or both would constitute such a default thereunder or permit any other party thereto to terminate such Contract, except as would not have a Material Adverse Effect. To the Company's Knowledge, no other party to any such Contract is in default in any respect with respect to any such Contract, which would have a Material Adverse Effect. No party has given any written notice (i) of termination or cancellation of any such Contract or (ii) that it intends to assert a breach of any such Contract, whether as a result of the transactions contemplated hereby or otherwise, which would have a Material Adverse Effect. Each Contract identified in Section 3.16 of the Company Disclosure Schedule in response to any item under this Section 3.16 shall be deemed incorporated by reference to all other items in this Section 3.16.
Material Contracts and Transactions Other than as expressly contemplated by this Agreement, there are no material contracts, agreements, licenses, permits, arrangements, commitments, instruments, understandings or contracts, whether written or oral, express or implied, contingent, fixed or otherwise, to which Pubco is a party except as disclosed in writing to Priveco or as disclosed in the Pubco SEC Documents.
Contracts and Commitments (a) Except (1) for Company Franchise Agreements and (2) as set forth on Schedule 3.09 of the Disclosure Schedules, none of the Acquired Companies is a party to or bound by any executory:
(i) bonus, pension, profit sharing, retirement or other form of deferred compensation plan or Contract;
(ii) Contract or indenture relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any portion of the assets of the Acquired Companies;
(iii) guaranty of any obligation for Indebtedness or other guaranty involving more than $100,000;
(iv) lease or Contract under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $100,000;
(v) lease or Contract under which it is lessor of or permits any third party to hold or operate any of its personal property, for which the annual rental exceeds $100,000;
(vi) other than in respect of blanket purchase orders that do not obligate the Company to purchase a minimum amount, Contract or group of related Contracts with the same party for the purchase by any Acquired Company of products or services which provided for annual payments in excess of $100,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet;
(vii) Contract relating to any future disposition or acquisition of material stock, assets or properties by any Acquired Company, or any merger or business combination with respect to or involving any Acquired Company (other than this Agreement);
(viii) Contract requiring any Acquired Company to purchase its total requirements of any product or services from a third party or that contain “take or pay” provisions;
(ix) broker, distributor, dealer, manufacturer’s representative, agency, sales promotion, market research, marketing consulting or advertising Contract involving more than $100,000 annually;
(x) material license or Contract relating to (i) the use by any Acquired Company of any third-party Intellectual Property or (ii) the use of any Company Intellectual Property other than non-exclusive licenses granted to distributors in the ordinary course of business;
(xi) Contract which limits or prohibits or purports to limit or prohibit any Acquired Company from competing or freely engaging in any line of business or with any Person or anywhere in the world or during any period of time or containing any exclusivity, most favored nations, non-solicitation or similar provisions;
(xii) other than with respect to any of the Company’s Subsidiaries set forth on Schedule 3.04 of the Disclosure Schedules, Contract that provides for any joint venture, partnership or similar arrangement by any Acquired Company;
(xiii) Contract between or among any Acquired Company on the one hand and any Affiliate of any Acquired Company (other than the Company or its Subsidiaries) on the other hand;
(xiv) employment agreement or contract with an independent contractor or consultant (or similar arrangement) to which an Acquired Company is a party and which is not cancellable without material penalty or without more than thirty (30) days’ notice;
(xv) collective bargaining agreement or Contract with any union, works council or labor organization; or
(xvi) any other Contract, the absence of which would cause a Material Adverse Effect.
(b) The Company either has supplied Purchaser with, or has given Purchaser access to, a true and correct copy of all Contracts listed on Schedule 3.09 of the Disclosure Schedules (the “Material Contracts”), together with all material amendments, modifications and supplements thereto.
(c) With respect to each Material Contract: (i) such contract is a valid and binding agreement of an Acquired Company, as applicable, enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies; (ii) none of the Acquired Companies, as applicable, is in material breach or default, nor has any Acquired Company taken any action which, with notice or lapse of time or both, would constitute a material breach or default, or permit termination, modification or acceleration, as applicable, under such contract; and (iii) to the Company’s knowledge, no other party is in material breach or default under such contract.
SIGNIFICANT CUSTOMERS; MATERIAL CONTRACTS AND COMMITMENTS The Company has delivered to TCI an accurate list (which is set forth on Schedule 5.15) of all customers (persons or entities) representing 1% or more of the Company's annual revenues for the year ended December 31, 1997; provided, however, that Schedule 5.15 need not set forth more than the Company's 20 largest customers during such period. Except to the extent set forth on Schedule 5.15, none of such customers have canceled or substantially reduced or, to the knowledge of the Stockholders, are currently attempting or threatening to cancel a contract or substantially reduce utilization of the services provided by the Company. The Company has listed on Schedule 5.15 all Material Contracts (as defined below) to which the Company is a party or by which it or any of its properties are bound, other than agreements listed on Schedules 5.10, 5.14 or 5.16, (a) in existence as of the Balance Sheet Date and (b) entered into since the Balance Sheet Date, and in each case has delivered true, complete and correct copies of such agreements to TCI. For purposes of this Agreement, the term "Material Contracts" includes contracts between the Company and significant customers (as described above), joint venture or partnership agreements, contracts with any labor organization, strategic alliances, options to purchase land and other contracts which are not terminable on sixty days or less notice and involve payments by the Company in any twelve-month period in excess of $25,000. The Company has also indicated on Schedule 5.15 a summary description of all plans or projects involving the opening of new operations, expansion of existing operations, the acquisition of any personal property, business or assets requiring, in any event, the payment of more than $25,000 by the Company during any 12- month period. To the knowledge of the Stockholders, all of the Material Contracts are in full force and effect and constitute valid and binding agreements of the parties (and their successors) thereto in accordance with their respective terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to the enforcement of creditors' rights generally and by general principles of equity.
Certain Contracts and Arrangements (a) Section 3.7(a) of the Transferor Disclosure Schedule sets forth a true and complete list, as of the date hereof, of the following Contracts (including currently effective amendments and modifications thereto), other than commitments to issue owner’s title insurance policies and owner’s title insurance policies, to which the Company is a party, by which any of its properties are bound or that relate to the conduct of the Business (collectively, the “Material Agreements”):
(i) agreements involving payments to or from the Company of at least $75,000 per year;
(ii) vendor or similar agreements involving payments to or from the Company in excess of $75,000 per year;
(iii) Contracts, or a group of related Contracts with the same party, for the purchase, sale or distribution of equipment, supplies, products or services, under which the undelivered balance of such equipment, supplies, products or services has a price in excess of $75,000;
(iv) Contracts, loan agreements, letters of credit, repurchase agreements, mortgages, security agreements, guarantees, pledge agreements, trust indentures, promissory notes, lines of credit and similar documents in each case relating to Indebtedness;
(v) real property leases calling for payments by the Company of amounts greater than $75,000 per year;
(vi) partnership, royalty or joint venture agreements;
(vii) Contracts limiting the ability of the Company to compete in any line of business or with any Person or in any geographic area;
(viii) Contracts relating to any outstanding commitment for capital expenditures;
(ix) (A) Collective Bargaining Agreements between the Company and any Person, (B) Employment Agreements between the Company and any Person, and (C) Contracts between the Company and any Independent Contractor and (D) the Company Plans, in each instance excluding at-will employment or Independent Contract or arrangements that may be terminated by the Company without notice and without Liability;
(x) Contracts not entered into in the ordinary course of the Business;
(xi) Contracts for the acquisition or disposition of real property, capital stock or other businesses;
(xii) Contracts providing for indemnification of any officer, employee, member, manager or director of the Company;
(xiii) agency, distributor, dealer, sales, marketing or similar agreements or arrangements with any Person that generates or refers business to the Company;
(xiv) all verbal Contracts (excluding at-will employment or Independent Contract or arrangements that may be terminated by the Company without notice and without Liability); and
(xv) Contracts not otherwise disclosed in (i) — (xiv) above that are currently in effect and to which the Company or its respective properties are bound that are material to the Business.
(b) Except to the extent that enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and provided that any indemnity, contribution and exoneration provisions contained in any such Material Agreement may be limited by applicable Laws and public policy, each Material Agreement (i) to the extent that the Company is a party to such Material Agreement, constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, (ii) is in full force and effect as of the Execution Date and (iii) will be in full force and effect upon the consummation of the transactions contemplated by this Agreement.
(c) There is not under any Material Agreement any default or event, that, with notice or lapse of time or both, would reasonably be expected to constitute a default on the part of any of the parties thereto, except such events of default and other events as to which requisite waivers or consents have been obtained.
(d) The Company has not (i) received written notice of, and there has not occurred, any breach of or violation or default under any Material Agreement or any condition which with the passage of time or the giving of notice or both would result in such a violation or default under any Material Agreement, or (ii) received written notice of the desire of the other party or parties to any such Material Agreement to exercise any rights such party has to cancel, terminate, renegotiate or repudiate such contract or exercise remedies thereunder.
(e) True and complete copies of all Material Agreements to which the Company is a party or is bound have been delivered or made available to HSE by Transferor. The Company is not party to or bound by any Contract (other than the Material Agreements) that cannot be terminated by the Company on less than ninety (90) days notice without penalty.
Grouping of contracts To the extent practicable, contracts for goods shall be grouped in bid packages estimated to cost $100,000 equivalent or more each.
