Contracts, etc To enter into, make and perform all such obligations, contracts, agreements and undertakings of every kind and description, with any Person or Persons, as the Trustees shall in their discretion deem expedient in the conduct of the business of the Trust, for such terms as they shall see fit, whether or not extending beyond the term of office of the Trustees, or beyond the possible expiration of the Trust; to amend, extend, release or cancel any such obligations, contracts, agreements or understandings; and to execute, acknowledge, deliver and record all written instruments which they may deem necessary or expedient in the exercise of their powers;
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) Schedule 4.10 contains a complete and accurate list of, and Seller has 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 US $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 US $50,000;
(iii) 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 US $50,000;
(iv) each lease 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 or aggregate payments of less than US $25,000 and with terms of less than one year);
(v) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property;
(vi) 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;
(vii) each Contract between or including the Company and an Affiliate;
(viii) each Contract containing covenants that in any way purport to restrict the business activity of the Company or any Affiliate of the Company or limit the freedom of the Company or any Affiliate of the Company to engage in any line of business or to compete with any Person;
(ix) 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
(x) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Seller (and each Affiliate of Seller) does not have any rights under or any obligation or liability under and does not have the right to require or will not become subject to, any Contract that relates to the business of, or any of the assets owned or used by, the Company;
(c) To the Knowledge of Seller or the Company, no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (i) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (ii) assign to the Company or to any other Person any rights to any invention, improvement, or discovery;
(d) With respect to each Contract identified or required to be identified in Schedule 4.10, (i) the Contract is legal, valid, binding, enforceable and in full force and effect; (ii) the Contract will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (iii) no party is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under the Contract; and (iv) no party has repudiated any provision of the Contract;
(e) The Company has not given to or received from any other Person, at any time since January 1, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract; and
(f) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Person and, to the Knowledge of Seller or the Company, no such Person has made written demand for such renegotiation.
