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.
Agreements and Commitments As of the date of this Agreement the Company is not a party or subject to any oral or written executory contract or, to the extent expressly enumerated in paragraphs below, commitment, that is material to the Company, its financial condition, business or prospects, including but not limited to the following:
(a) Any contract, commitment, letter agreement or purchase order providing for payments by or to the Company in an aggregate amount of (i) $10,000 or more in the Ordinary Course or (ii) $5,000 or more not in the Ordinary Course;
(b) Any license agreement under which the Company is licensor (except for any nonexclusive software license granted by the Company to customers in the Ordinary Course); or under which the Company is licensee (except for standard "shrink wrap" licenses for off-the-shelf software products with a license fee or purchase price of under $5,000 per copy or seat);
(c) Any material agreement by the Company to encumber, transfer or sell rights in or with respect to any material item of the Company Intellectual Property (as defined in Section 3.11 hereof), excluding non-exclusive software licenses;
(d) Any agreement for the sale or lease of real or tangible personal property involving more than $10,000 per year;
(e) Any dealer, distributor, sales representative, original equipment manufacturer, value-added remarketer or other agreement for the distribution of the Company's products;
(f) Any franchise agreement;
(g) Any stock redemption or agreement obligating the Company to purchase its capital stock;
(h) Any joint venture contract or arrangement or any other agreement that involves a sharing of profits with other persons or the payment of royalties to any other person, excluding non-exclusive software licenses;
(i) Any instrument evidencing indebtedness for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee or otherwise, except for trade indebtedness or any advance to any employee of the Company incurred or made in the Ordinary Course, and except as disclosed in the Company Financial Statements;
(j) Any contract containing covenants purporting to limit the Company's freedom to compete in any line of business, market or industry and/or in any geographic area; or
(k) Any contract for the employment of any officer, employee or consultant of the Company or any other type of contract or commitment with any officer, employee or consultant of the Company that is not immediately terminable by the Company without cost or other liability. All agreements, obligations and commitments disclosed in Item 3.10, Item 3.11, Item 3.14.3 or Item 3.14.6 as required by Section 3.10, Section 3.11, Section 3.14.3 or Section 3.14.6, as the case may be, are valid and in full force and effect, except where the failure to be such would not have a Material Adverse Effect on the Company. Neither the Company nor to Shareholder's knowledge any other party is in breach of or default under any material term of any such agreement, obligation or commitment nor has such other party threatened such a breach or default. The Company is not a party to any contract or arrangement that Shareholder believes will have a Material Adverse Effect on the Company. The Company does not have liability for renegotiation of government contracts or subcontracts that can reasonably be expected to have a Material Adverse Effect on the Company.
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.
The Facilities Subject to the terms of this Agreement, the Lenders make available to the Borrower:
(a) a sterling term loan facility in an aggregate amount equal to the Total Facility A Commitments;
(b) a sterling term loan facility in an aggregate amount equal to the Total Facility B Commitments; and
(c) a sterling term loan facility in an aggregate amount equal to the Total Facility C Commitments.
Objectives and Commitments 7.1 The Objectives of the Parties to this Agreement are:
(a) to promote fair, cooperative and productive workplace relations in the building and construction industry;
(b) to provide a detailed set of agreed employment benefits, conditions, rights and obligations;
(c) to explore the potential for innovation and new technologies;
(d) to consider any benefits of alternative hours of work;
(e) to support the establishment of consultative bodies to consider the impact of climate change on the working conditions in the industry;
(f) to establish practices that support opportunities for a diversified workforce;
(g) to support the implementation of highest possible levels of OHS practices, procedures and training;
(h) to ensure that fair and equitable employment practices are applied in the workplace;
(i) to improve efficiency in the workplace;
(j) to provide for the establishment and observance of an effective disputes settlement procedure that involves Employees and their representatives, when requested, at the earliest stage of any dispute or potential dispute.
7.2 The Parties to this Agreement commit themselves to ensuring that:
(a) The efficiency measures contained in this Agreement are implemented and lead to real gains in productivity.
(b) The principles of industry modernisation are realised during the life of this Agreement (in accordance with Part 11).
(c) Productivity gains will not be achieved at the expense of health and safety standards.
(d) The disputes settlement procedures provided herein are strictly adhered to.
(e) Employment should wherever possible be full time and on going.
The Facility Subject to the terms of this Agreement, the Lenders make available to the Borrowers a multicurrency revolving loan facility in an aggregate amount equal to the Total Commitments.
The Credit Facilities Section 2.1 The Revolving Credit Facility.
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.
Commitments and Contracts (1) The Company has Previously Disclosed or provided to the Investor or its representatives, prior to the date hereof, true, correct, and complete copies of each of the following to which the Company or any Company Subsidiary is a party or subject (whether written or oral, express or implied) (each, a “Company Significant Agreement”):
(i) any material employment contract or understanding (including any understandings or obligations with respect to severance or termination pay, liabilities or fringe benefits) with any present or former officer, director or employee (other than those that are terminable at will by the Company or such Company Subsidiary);
(ii) any material plan, contract or understanding providing for any bonus, pension, option, deferred compensation, retirement payment, profit sharing or similar arrangement with respect to any present or former officer, director or employee;
(iii) any contract containing covenants that limit the ability of the Company or any Company Subsidiary to compete in any line of business or with any person or which involve any restriction of the geographical area in which, or method by which or with whom, the Company or any Company Subsidiary may carry on its business (other than as may be required by law or applicable regulatory authorities), and any contract that would require the disposition of any material assets or line of business of the Company or any Company Subsidiary;
(iv) any joint venture, partnership, strategic alliance or other similar contract (including any franchising agreement, but in any event excluding introducing broker agreements); and any contract relating to the acquisition or disposition of any material business or material assets (whether by merger, sale of stock or assets or otherwise), which acquisition or disposition is not yet complete or where such contract contains continuing material obligations or contains continuing material indemnity obligations of the Company or any of the Company Subsidiaries; and
(v) any other contract or agreement which is a “material contract” within the meaning of Item 601(b)(10) of Regulation S-K.
(2) Each of the Company Significant Agreements is valid and binding on the Company and the Company Subsidiaries, as applicable, and in full force and effect. The Company and each of the Company Subsidiaries, as applicable, are in compliance in all material respects with and have performed in all material respects all obligations required to be performed by them to date under each Company Significant Agreement. Neither the Company nor any of the Company Subsidiaries has received notice of any violation or default (or any condition which with the passage of time or the giving of notice would cause such a violation of or a default) by any party under any Company Significant Agreement. No party to a Company Significant Agreement has provided notice to the Company or any Company Subsidiary that it intends to terminate a Company Significant Agreement or not renew such agreement at the expiration of the current term.
(3) Other than those contemplated by the Transactions, there are no transactions or series of related transactions, agreements, arrangements or understandings, nor are there any currently proposed transactions, or series of related transactions between the Company or any Company Subsidiaries, on the one hand, and the Company, any current or former director or executive officer of the Company or any Company Subsidiaries or any person who beneficially owns five percent (5%) or more of the Common Stock (or any of such person’s immediate family members or Affiliates) (other than Company Subsidiaries), on the other hand, except for deposit relationships or loan transactions arising in the ordinary course of business.
Commitments and Applicable Percentages 5.01 Loan Parties Organizational Information 5.08(b)(1) Owned Real Estate 5.08(b)(2) Leased Real Estate 5.10 Insurance 5.13 Subsidiaries; Other Equity Investments
