Contractual Commitments. (a) Schedule 7.21 lists (or refers to a list that is set forth in any other Schedule) each of the following, written or oral (each a “Contractual Commitment”), to which any of the Seller or the Joint Ventures is a party or by which any of their properties or assets are bound and which presently remains executory in whole or in any part: (i) Each partnership, joint venture, operating, management or cost sharing agreement; (ii) Each guaranty or suretyship, indemnification or contribution agreement or performance bond; (iii) Each instrument, agreement or other obligation evidencing or relating to any Indebtedness of the Seller or the Joint Ventures involving more than $30,000; (iv) Each contract to purchase or sell real property; (v) Each agreement with sales or commission agents, public relations or advertising agencies involving total payments within any 12-month period in excess of $30,000 and which is not terminable without penalty and on no more than sixty (60) days’ prior notice; (vi) Each agreement for the acquisition or provision of services, supplies, goods, equipment, inventory, fixtures or other property or assets involving annual payments by or to Seller of more than $30,000; (vii) Each agreement for the provision of services, supplies or other properties or assets under which the Seller or the Joint Venture have recognized, or reasonably could be expected to recognize, in the aggregate and in accordance with GAAP, any loss in excess of $30,000 since the date of the most recent Financial Information presented to the Buyer Companies by the Seller as a result of factors such as changes in job performance, job conditions, final contract settlements or disapprovals of change orders or claims; (viii) Each Related Party Agreement; (ix) Each contract containing any noncompetition agreement, covenant or undertaking or otherwise purporting to limit or restrict the business activity of the Seller, the Joint Ventures or any of their Affiliates with respect to the Business, as appropriate; (x) Each agreement providing for the purchase from a supplier of all or substantially all the requirements of the Seller or a Joint Venture of a particular product or service; (xi) Each power of attorney that is currently effective and outstanding; (xii) Each written warranty, guaranty or similar undertaking by the Seller with respect to its products or services; (xiii) Each other Material Agreement; (xiv) Each contract that contains or provides for an express undertaking by the Seller or a Joint Venture to be responsible for consequential damages that might reasonably be expected to have a Material Adverse Effect on the Seller or the Joint Venture; and (xv) Each material amendment, supplement or other modification (and each proposed material amendment, supplement or other modification) with respect to any of the foregoing. True, correct and complete copies of all written Contractual Commitments, and true, correct and complete written descriptions of all oral Contractual Commitments, have heretofore been delivered by the Seller to the Buyer Companies. To the knowledge of the Seller and except as set forth in Schedule 7.21: (A) there are no existing or asserted defaults, events of default or events, occurrences, acts or omissions that, with the giving of notice or lapse of time or both, would constitute defaults or events of default of the Seller or a Joint Venture under any Contractual Commitment or to the knowledge of the Seller, of any other party thereto, which singly or in the aggregate could reasonably have a Material Adverse Effect; (B) no Material penalties have been incurred, nor are amendments pending, with respect to any Contractual Commitment; and (C) all Indebtedness set forth on Schedule 7.21 may be prepaid, without penalty or any requirement to pay any prepayment, termination or breakage fee, at any time. Each Contractual Commitment is in full force and effect and is the valid and enforceable obligation of the Seller or the related Joint Venture, as the case may be, and, to the knowledge of the Seller, the other parties thereto in accordance with its terms, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law), and, to the knowledge of the Seller, no defenses, off-sets or counterclaims have been asserted by any party thereto, nor have the Seller or any Joint Venture waived any rights thereunder, except as Schedule 7.21 sets forth. (b) Except as set forth in Schedule 7.21, or as this Agreement or any other Transaction Document to which the Seller is a party contemplates, the Seller has no knowledge of any plan or intention of any other party to any Contractual Commitment to exercise any right to cancel or terminate that Contractual Commitment, and the Seller has no knowledge of any condition or state of facts which would justify the exercise of such a right, except where the exercise of any such right, singly or in the aggregate, could not reasonably have a Material Adverse Effect on the Seller or the Business.
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Contractual Commitments. (a) Schedule 7.21 lists 7.19 sets forth a complete list (or refers to a list that is set forth in any other Schedule) ), as of the Effective Date, of each of the following, written or oral following (each a “Contractual Commitment”), to which Holdco or any of the Seller or the Joint Ventures its Subsidiaries is a party or by which any of its or their properties or assets are bound and which presently remains remains, as of the Effective Date, executory in whole or in any part:
(i) Each partnership, joint venture, operating, management or cost sharing agreement;
(ii) Each guaranty or suretyship, indemnification or contribution agreement or performance bond;
(iii) Each instrument, agreement or other obligation evidencing or relating to any Indebtedness of the Seller Holdco or the Joint Ventures involving more than $30,000any of its Subsidiaries;
(iv) Each contract to purchase or sell real property;
(v) Each agreement with sales or commission agents, public relations or advertising agencies agencies, accountants or attorneys (other than in connection with this Agreement and the transactions this Agreement contemplates) involving total payments within any twelve (12-) month period in excess of $30,000 50,000 and which do not exceed in the aggregate $250,000, and which is not terminable without penalty and on no more than sixty thirty (6030) days’ prior notice;
(vi) Each agreement for the acquisition or provision of services, supplies, goods, equipment, inventory, fixtures or other property or assets involving annual payments by or to Seller of more than $30,00025,000 individually or $100,000 in the aggregate (other than services, goods, equipment, inventory, fixtures or other property or assets acquired or provided on a purchase order basis in the ordinary course of business);
(vii) Each agreement for the provision of services, supplies or other properties or assets under which the Seller or the Joint Venture have recognized, or reasonably could be expected to recognize, in the aggregate and in accordance with GAAP, any loss in excess of $30,000 since the date of the most recent Financial Information presented to the Buyer Companies by the Seller as a result of factors such as changes in job performance, job conditions, final contract settlements or disapprovals of change orders or claims;
(viii) Each Related Party Agreement;
(ixviii) Each contract containing any noncompetition agreement, covenant or undertaking or otherwise purporting to limit or restrict the business activity of the Seller, the Joint Ventures Holdco or any of their its Subsidiaries or Affiliates with respect to the Business, as appropriate;
(xix) Each agreement providing for the purchase from a supplier of all or substantially all the requirements of the Seller Holdco or a Joint Venture any of its Subsidiaries of a particular product or service, involving total payments within any twelve (12) month period in excess of $25,000;
(xix) Each power of attorney that is currently effective and outstanding;
(xiixi) Each written warranty, guaranty or similar undertaking by the Seller Holdco or any of its Subsidiaries that is material to Holdco and its Subsidiaries with respect to its products or services;
(xiiixii) Each other Material Agreement;
(xiv) Each Contract or contract that contains or provides for an express undertaking by the Seller or a Joint Venture to be responsible for consequential damages that might reasonably be expected to have agreement with a Material Adverse Effect Supplier (other than Material Contracts, contracts and agreements made on the Seller or the Joint Venturea purchase order basis); and
(xvxiii) Each material amendment, supplement or other modification (and and, to the knowledge of Holdco, each proposed material amendment, supplement or other modification) with respect to any of the foregoing.
(b) There are no oral Contractual Commitments that, if in writing, would be required to be included on Schedule 7.19. True, correct and complete copies of all written Contractual Commitments, and true, correct and complete written descriptions of all oral Contractual Commitments, Commitments have heretofore been delivered made available by the Seller Holdco to the Buyer CompaniesBuyer. To the knowledge of the Seller and except Except as set forth in Schedule 7.217.19 sets forth: (A) there are no existing or asserted defaults, events of default or events, occurrences, acts or omissions that, with the giving of notice or lapse of time or both, would constitute material defaults or material events of default of the Seller Holdco or a Joint Venture any of its Subsidiaries under any material Contractual Commitment or or, to the knowledge of the SellerHoldco, of any other party thereto, which singly or in the aggregate could reasonably have a Material Adverse Effect; and (B) no Material material penalties have been incurredincurred that are presently outstanding, nor are amendments pending, with respect to any material Contractual Commitment; and (C) all Indebtedness set forth on Schedule 7.21 may be prepaid, without penalty or any requirement to pay any prepayment, termination or breakage fee, at any time. Each Contractual Commitment listed or required to be listed in Schedule 7.19 to this Agreement is in full force and effect and is the valid and enforceable obligation of the Seller Holdco or the related Joint Ventureits Subsidiaries, as the case may be, and, to the knowledge of the SellerSellers and Holdco, the other parties thereto in accordance with its terms, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law), and, to the knowledge .
(c) As of the Seller, no defenses, off-sets or counterclaims have been asserted by any party thereto, nor have the Seller or any Joint Venture waived any rights thereunderEffective Date, except as Schedule 7.21 7.19 sets forth.
(b) Except as set forth in Schedule 7.21, or as this Agreement or any other Transaction Document to which the Seller Holdco or any of its Subsidiaries is a party contemplates, the Seller Holdco has no knowledge of any plan or intention of any other party to any Contractual Commitment set forth on Schedule 7.19 to this Agreement to exercise any right to cancel or terminate that Contractual Commitment.
(d) Except as set forth in Schedule 7.19(d), all Products sold by the Target since October 29, 2009 have been in conformity in all material respects with all applicable Contractual Commitments of the Target and all express and implied warranties of the Seller has Target. Except as set forth in Schedule 7.19(d), no knowledge product or Product sold by the Target is subject to any express guaranty, express warranty or other express indemnity beyond the applicable standard terms and conditions of any condition or state sale of facts the Target which would justify the exercise of such a right, except where the exercise of any such right, singly or are attached hereto in the aggregate, could not reasonably have a Material Adverse Effect on the Seller or the BusinessSchedule 7.19(d).
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Sources: Stock Purchase Agreement (Prestige Brands Holdings, Inc.)
Contractual Commitments. (a) Schedule 7.21 lists 7.20 sets forth a complete list (or refers to a list that is set forth in any other Schedule) of each of the following, written or oral following (each a “Contractual Commitment”), to which Holdco, the TARGET or any of the Seller or the Joint Ventures its Subsidiaries is a party or by which any of its or their properties or assets are bound and which presently remains executory in whole or in any part:
(i) Each partnership, joint venture, operating, management or cost sharing agreement;
(ii) Each guaranty or suretyship, indemnification or contribution agreement or performance bond;
(iii) Each instrument, agreement or other obligation evidencing or relating to any Indebtedness of Holdco, the Seller TARGET or the Joint Ventures involving more than $30,000any of its Subsidiaries;
(iv) Each contract to purchase or sell real property;
(v) Each agreement with sales or commission agents, public relations or advertising agencies agencies, accountants or attorneys (other than in connection with this Agreement and the transactions this Agreement contemplates) involving total payments within any twelve (12-) month period in excess of $30,000 100,000 and which do not exceed in the aggregate $250,000, and which is not terminable without penalty and on no more than sixty thirty (6030) days’ prior notice;
(vi) Each agreement for the acquisition or provision of services, supplies, goods, equipment, inventory, fixtures or other property or assets involving annual payments by or to Seller of more than $30,000100,000 in the aggregate;
(vii) Each personal services agreement for or any other contract between the provision of services, supplies or other properties or assets under which the Seller or the Joint Venture have recognized, or reasonably could be expected to recognize, in the aggregate and in accordance with GAAPTARGET, any loss in excess of $30,000 since the date of the most recent Financial Information presented its Subsidiaries or any Franchisee and any physician or physician group (commonly referred to the Buyer Companies by the Seller as a result of factors such as changes in job performancemedical director, job conditions, final contract settlements medical adviser or disapprovals of change orders or claimsphysician consultant agreements);
(viii) Each Related Party Agreement;
(ix) Each contract containing any noncompetition agreement, covenant or undertaking or otherwise purporting to limit or restrict the business activity of the Seller, the Joint Ventures TARGET or any of their its Subsidiaries or Affiliates with respect to the Business, as appropriate;
(x) Each agreement providing for the purchase from a supplier of all or substantially all the requirements of the Seller TARGET or a Joint Venture any of its Subsidiaries of a particular product or service;
(xi) Each power of attorney that is currently effective and outstanding;
(xii) Each written warranty, guaranty or similar undertaking by the Seller TARGET or any of its Subsidiaries that is Material to the TARGET and its Subsidiaries with respect to its products or services;
(xiii) Each other Material Agreement;Contract; and
(xiv) Each contract that contains or provides for an express undertaking by the Seller or a Joint Venture to be responsible for consequential damages that might reasonably be expected to have a Material Adverse Effect on the Seller or the Joint Venture; and
(xv) Each material amendment, supplement or other modification (and, to the knowledge of the Sellers and TARGET, each proposed material amendment, supplement or other modification) with respect to any of the foregoing. There are no oral Contractual Commitments that, if in writing, would be required to be included on Schedule 7.20. True, correct and complete copies of all written Contractual Commitments, and true, correct and complete written descriptions of all oral Contractual Commitments, Commitments have heretofore been delivered made available by the Seller Sellers to the Buyer CompaniesCompany. To the knowledge of the Seller and except Except as set forth in Schedule 7.217.20 sets forth: (A) there are no existing or asserted defaults, events of default or events, occurrences, acts or omissions that, with the giving of notice or lapse of time or both, would constitute Material defaults or Material events of default of the Seller TARGET or a Joint Venture any of its Subsidiaries under any Contractual Commitment or or, to the knowledge of the SellerSellers and the TARGET, of any other party thereto, which singly or in the aggregate could reasonably have a Material Adverse Effect; (B) no Material penalties have been incurredincurred that are presently outstanding, nor are amendments pending, with respect to any Contractual Commitment; and (C) all Indebtedness set forth on Schedule 7.21 7.20 may be prepaid, without penalty or any requirement to pay any prepayment, termination or breakage fee, at any time; and (D) each agreement clause (vi) above describes may be terminated on no more than thirty (30) days’ prior notice, without penalty or any requirement to pay any termination or breakage fee. Each Contractual Commitment listed or required to be listed in Schedule 7.20 to this Agreement is in full force and effect and is the valid and enforceable obligation of the Seller TARGET or the related Joint Ventureits Subsidiaries, as the case may be, and, to the knowledge of the SellerSellers and the TARGET, the other parties thereto in accordance with its terms, except as enforceability may be limited by (i) any applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether that enforceability is considered in a proceeding in equity or at law), and, to the knowledge of the SellerSellers and the TARGET, no defenses, off-sets or counterclaims have been asserted by any party thereto, nor have has the Seller TARGET or any Joint Venture of its Subsidiaries waived any rights thereunder, except as Schedule 7.21 7.20 sets forth.
(b) Except as set Schedule 7.20 sets forth in Schedule 7.21, or as this Agreement or any other Transaction Document to which the Seller TARGET or any of its Subsidiaries is a party contemplates, the Seller has Sellers and the TARGET have no knowledge of any plan or intention of any other party to any Contractual Commitment set forth on Schedule 7.20 to this Agreement to exercise any right to cancel or terminate that Contractual CommitmentCommitment or that contract or agreement, and the Seller has Sellers and the TARGET have no knowledge of any condition or state of facts which would justify the exercise give rise to a right of termination of such a right, except where the exercise of any such right, singly or in the aggregate, could not reasonably have a Material Adverse Effect on the Seller or the BusinessContractual Commitment.
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