Actions Since the Balance Sheet Date. Since the Balance Sheet Date, except as set forth on Schedule 3.8 attached hereto, Seller has not: (a) incurred any Liability, except for those incurred in the ordinary and usual course of business consistent with past practice; (b) sold, leased, disposed of, assigned or acquired any assets, properties or rights, except Inventory in the ordinary and usual course of business consistent with past practice; (c) mortgaged, pledged or subjected to any Lien, other than a Permitted Lien, any of the Assets, or permitted any of the Assets to be subjected to any Lien, other than a Permitted Lien; (d) acquired (by merger, consolidation, acquisition of stock or assets or otherwise) any Person or division thereof pursuant to which it acquired any assets, rights or properties; (e) made any offer letters, wage or salary increases, granted any bonuses or modified any compensation arrangement with respect to, or entered into any restrictive covenant, severance, employment or similar Contract with, any of its employees or independent contractors, officers or directors other than in the ordinary and usual course of business consistent with past practice; (f) amended the Certificate of Incorporation or By-Laws of Seller; (g) adopted, amended or increased the payments to or benefits under, any Employee Benefit Plan; (h) incurred damage to or destruction or loss of any material Asset, whether or not covered by insurance; (i) other than in the ordinary and usual course of business consistent with past practice, entered into, terminated or received notice of termination of (i) any license distributorship, dealer, sales representative, joint venture, credit or similar Contract to which Seller is a party, or (ii) any Contract or transaction (other than any purchase order entered into in the ordinary and usual course of business consistent with past practice) that involves payments to or by or on behalf of Seller in the amount of One Hundred Thousand ($100,000) Dollars, or more, in each case, other than any such Contract that has expired in accordance with its terms; (j) cancelled or waived any Actions or rights with a value to Seller in excess of Twenty-Five Thousand ($25,000) Dollars, provided that this Section 3.8(j) shall not apply to any Action which is a Retained Liability; or (k) entered into or amended any Contract with respect to any of the foregoing; Since the Balance Sheet Date, to Seller’s Actual Knowledge, except as set forth on Schedule 3.8 attached hereto, there has been no act or omission on the part of Seller or others which would form the basis for the assertion against Seller of any material Liability, no other event has occurred which could be reasonably expected to have a Seller Material Adverse Effect upon the Assets or the Business, and, to Seller’s Knowledge, there is no development or threatened development of a nature which could be reasonably expected to have a Seller Material Adverse Effect upon the Assets or the Business.
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Actions Since the Balance Sheet Date. Since the Division Balance Sheet Date, except as set forth on in Schedule 3.8 4.8 attached heretoand as set forth in Section 5.3, Seller has notneither Woodmark with respect to the Woodmark Division nor PSP with respect to the PSP Division has:
(a) incurred any Liabilityobligation or liability, absolute or contingent, known or unknown, inchoate or otherwise, except for those incurred in the ordinary and usual course of its respective business consistent with past practice;
(b) sold, leased, disposed of, assigned or acquired any assets, properties or rights, except Inventory in the ordinary and usual course of its respective business consistent with past practice;
(c) mortgaged, pledged or subjected to any Lien, other than a Permitted Lien, Lien any of the Assetsits assets, rights or properties, or permitted any of the Assets its assets, rights or properties to be subjected to any Lien, other than a Permitted Lien;
(d) acquired (by merger, consolidation, acquisition of stock or assets or otherwise) any Person or division thereof pursuant to which it acquired any assets, rights or properties;
(e) made any offer letters, wage or salary increases, granted any bonuses or modified any compensation arrangement with respect to, or entered into any restrictive covenant, severance, employment or similar Contract with, any of its employees or independent contractors, officers or directors other than in the ordinary and usual course of business consistent with past practicedirectors;
(f) amended the Certificate of Incorporation Formation or By-Laws Operating Agreement of SellerPurchaser;
(g) adopted, amended or increased the payments to or benefits under, any Employee Benefit Planemployee benefit plan of Purchaser;
(h) incurred damage to or destruction or loss of any material Asset, whether or not covered by insurance;
(i) other than in the ordinary and usual course of business consistent with past practice, entered into, terminated or received notice of termination of (i) any license distributorship, dealer, sales representative, joint venture, credit or similar Contract to which Seller Purchaser is a party, or (ii) any Contract or transaction (other than any purchase order entered into in the ordinary and usual course involving a total remaining commitment by Purchaser of business consistent with past practice) that involves payments to or by or on behalf of Seller in the amount of One Hundred Thousand (at least $100,000) Dollars, or more, in each case, other than any such Contract that has expired in accordance with its terms50,000;
(j) cancelled or waived any Actions claims or rights with a value to Seller Purchaser in excess of Twenty-Five Thousand $50,000;
($25,000k) Dollarsreceived or became aware of any indication by any customer or supplier of an intention to discontinue or materially change the terms of its relationship with Purchaser;
(l) other than this Agreement and the transactions contemplated hereby, provided that this Section 3.8(j) shall entered into or amended any Contract or otherwise took any action, or made any commitment, not apply to any Action which is a Retained Liabilityin the ordinary and usual course of its respective business and consistent with past practice; or
(km) entered into or amended any Contract with respect to any of the foregoing; Since the Balance Sheet Date, to Seller’s Actual Knowledge, except as set forth on Schedule 3.8 attached hereto, there has been no act or omission on the part of Seller or others which would form the basis for the assertion against Seller of any material Liability, no other event has occurred which could be reasonably expected to have a Seller Material Adverse Effect upon the Assets or the Business, and, to Seller’s Knowledge, there is no development or threatened development of a nature which could be reasonably expected to have a Seller Material Adverse Effect upon the Assets or the Business.
Appears in 1 contract
Actions Since the Balance Sheet Date. Since the Balance Sheet Date, except as set forth on in Schedule 3.8 attached hereto, Seller has not:
(a) incurred any Liabilityobligation or liability, except for those incurred in absolute or contingent, (to the ordinary and usual course Knowledge of business consistent with past practiceSeller) inchoate or otherwise;
(b) sold, leased, disposed of, assigned or acquired any assets, properties or rights, individually or in the aggregate having a value of Ten Thousand Dollars ($10,000) or more except for sales of Inventory in the ordinary and usual course of business consistent with past practicepractices, which are set forth on Schedule 3.8(b) attached hereto;
(c) mortgaged, pledged pledged, subjected to, incurred, assumed, or subjected to guaranteed any Lien, other than a Permitted Lien, Lien any of the its Assets, rights or properties, or permitted any of the Assets its Assets, rights or properties to be subjected to any Lien, other than a Permitted Lien;
(d) acquired (by merger, consolidation, acquisition of stock or assets or otherwise) any Person or division thereof pursuant to which it acquired any assets, rights or properties;
(e) made any offer lettersoffers, wage or salary increases, granted any bonuses or modified any compensation arrangement with respect to, or entered into any restrictive covenant, severance, employment or similar Contract with, to any of its employees employees, officers, directors, or independent contractors, officers or directors ;
(f) other than this Agreement and the transactions contemplated hereby, entered into or amended any Contract or otherwise took any action, or made any commitment, not in the ordinary and usual course of business and consistent with past practice;
(g) caused or incurred an event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Assets, liabilities, Business or prospects of Seller;
(h) declared or paid any dividends or distributions on or in respect of any of Seller's capital stock or redemption, purchase or acquisition of Seller's capital stock;
(i) materially changed any method of accounting or accounting practice, except as required by GAAP and as disclosed in the notes to the Financial Statements;
(j) materially changed any cash management practices and policies, practices and procedures with respect to collection of Accounts, establishment of reserves for uncollectible Accounts, accrual of Accounts, Inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(k) transferred, assigned or granted any license or sublicense of any material rights under or with respect to any Intellectual Property;
(l) suffered any material damage, destruction or loss, or caused any material interruption in use, of any Assets, whether or not covered by insurance;
(m) accelerated, terminated, material modified, or cancelled any Contract;
(n) incurred or made any material capital expenditures;
(o) hired or promoted any person;
(p) adopted, modified or terminated any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, or (ii) Welfare Plan;
(q) entered into any loan to (or forgiveness of any loan to), or entry into any other transaction with, any current or former directors, officers or employees;
(r) adopted any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(s) purchased, leased or acquired the right to own, use or lease any property or assets, except in the ordinary course of business consistent with past practice;
(ft) amended the Certificate of Incorporation or By-Laws Code of Regulation of Seller;
(gu) adoptedaccelerated the collection of, amended or increased disregarded any Accounts, or delayed the payments to or benefits under, payment of any Employee Benefit Plan;Accounts; or
(hv) incurred damage to or destruction or loss of any material Asset, whether or not covered by insurance;
(i) other than in the ordinary and usual course of business consistent with past practice, entered into, terminated or received notice of termination of (i) any license distributorship, dealer, sales representative, joint venture, credit or similar Contract to which Seller is a party, or (ii) any Contract or transaction (other than any purchase order entered into in the ordinary and usual course of business consistent with past practice) that involves payments to or by or on behalf of Seller in the amount of One Hundred Thousand ($100,000) Dollars, or more, in each case, other than any such Contract that has expired in accordance with its terms;
(j) cancelled or waived any Actions or rights with a value to Seller in excess of Twenty-Five Thousand ($25,000) Dollars, provided that this Section 3.8(j) shall not apply to any Action which is a Retained Liability; or
(k) entered into or amended any Contract with respect to any of the foregoing; Since the Balance Sheet Date, to Seller’s Actual Knowledge, except as set forth on Schedule 3.8 attached hereto, there has been no act or omission on the part of Seller or others which would form the basis for the assertion against Seller of any material Liability, no other event has occurred which could be reasonably expected to have a Seller Material Adverse Effect upon the Assets or the Business, and, to Seller’s Knowledge, there is no development or threatened development of a nature which could be reasonably expected to have a Seller Material Adverse Effect upon the Assets or the Business.
Appears in 1 contract
Actions Since the Balance Sheet Date. Since the Seller Balance Sheet Date, except as set forth on in Schedule 3.8 attached hereto, Seller has not:
(a) incurred any Liabilityobligation or liability, absolute or contingent, known or unknown, inchoate or otherwise, except for those incurred in the ordinary and usual course of business consistent with past practice;
(b) sold, leased, disposed of, assigned or acquired any assets, properties or rights, except Inventory in the ordinary and usual course of business consistent with past practice;
(c) mortgaged, pledged or subjected to any Lien, other than a Permitted Lien, Lien any of the Assetsits assets, rights or properties, or permitted any of the Assets its assets, rights or properties to be subjected to any Lien, other than a Permitted Lien;
(d) acquired (by merger, consolidation, acquisition of stock or assets or otherwise) any Person or division thereof pursuant to which it acquired any assets, rights or properties;
(e) made any offer letters, wage or salary increases, granted any bonuses or modified any compensation arrangement with respect to, or entered into any restrictive covenant, severance, employment or similar Contract with, any of its employees or independent contractors, officers or directors other than in the ordinary and usual course of business consistent with past practicedirectors;
(f) amended the Certificate of Incorporation Formation or By-Laws Operating Agreement of Seller;
(g) adopted, amended or increased the payments to or benefits under, any Employee Benefit Plan;
(h) incurred damage to or destruction or loss of any material Asset, whether or not covered by insurance;
(i) other than in the ordinary and usual course of business consistent with past practice, entered into, terminated or received notice of termination of (i) any license distributorship, dealer, sales representative, joint venture, credit or similar Contract to which Seller is a party, or (ii) any Contract or transaction (other than any purchase order entered into in the ordinary and usual course involving a total remaining commitment by Seller of business consistent with past practice) that involves payments to or by or on behalf of Seller in the amount of One Hundred Thousand (at least $100,000) Dollars, or more, in each case, other than any such Contract that has expired in accordance with its terms50,000;
(j) cancelled or waived any Actions claims or rights with a value to Seller in excess of Twenty-Five Thousand $50,000;
($25,000k) Dollarsreceived or became aware of any indication by any customer or supplier of an intention to discontinue or materially change the terms of its relationship with Seller;
(l) other than this Agreement and the transactions contemplated hereby, provided that this Section 3.8(jentered into or amended any Contract or otherwise took any action, or made any commitment, not in the ordinary and usual course of business and consistent with past practice;
(m) shall not apply to changed any Action which is a Retained Liabilityaccounting methods used by Seller; or
(kn) entered into or amended any Contract with respect to any of the foregoing; Since the Balance Sheet Date, to Seller’s Actual Knowledge, except as set forth on Schedule 3.8 attached hereto, there has been no act or omission on the part of Seller or others which would form the basis for the assertion against Seller of any material Liability, no other event has occurred which could be reasonably expected to have a Seller Material Adverse Effect upon the Assets or the Business, and, to Seller’s Knowledge, there is no development or threatened development of a nature which could be reasonably expected to have a Seller Material Adverse Effect upon the Assets or the Business.
Appears in 1 contract
Actions Since the Balance Sheet Date. Since Except as set forth in Schedule 3.8 attached hereto, since the Balance Sheet Date, except as set forth on Schedule 3.8 attached hereto, Seller has notnone of Sellers or HTM has:
(a) incurred any Liability, Liability except for those incurred in the ordinary and usual course of business consistent with past practice;
(b) sold, leased, disposed of, assigned or acquired any assets, properties or rights, except Inventory in the ordinary and usual course of business consistent with past practice;
(c) mortgaged, pledged or subjected to any Lien, other than a Permitted Lien, Lien any of the Assetsits assets, rights or properties, or permitted any of the Assets its assets, rights or properties to be subjected to any Lien, other than a Permitted Lien;
(d) acquired (by merger, consolidation, acquisition of stock or assets or otherwise) any Person or division thereof pursuant to which it acquired any assets, rights or properties;
(e) made any offer letters, wage or salary increases, granted any bonuses or modified any compensation arrangement with respect to, or entered into any restrictive covenant, severance, employment or similar Contract with, to any of its employees or independent contractors, officers except in the ordinary course of business, consistent with past practices and which, individually or directors other than in the aggregate, are not material;
(f) declared or paid any dividends or made any distributions, or dispositions or transfers of assets (including cash), to any shareholder or Affiliate;
(g) accrued or paid, or failed to pay, accounts payable, Liabilities, and/or made sales (including sales at a discount), except in the ordinary and usual course of business and in a manner consistent with past practice;
(f) amended the Certificate of Incorporation or By-Laws of Seller;
(g) adopted, amended or increased the payments to or benefits under, any Employee Benefit Plan;
(h) incurred damage to or destruction or loss of any material Asset, whether or not covered by insurance;
(i) other than this Agreement and the transactions contemplated hereby, entered into or amended any Contract or otherwise took any action, or made any commitment, not in the ordinary and usual course of business and consistent with past practice, entered into, terminated or received notice of termination of (i) any license distributorship, dealer, sales representative, joint venture, credit or similar Contract to which Seller is a party, or (ii) any Contract or transaction (other than any purchase order entered into in the ordinary and usual course of business consistent with past practice) that involves payments to or by or on behalf of Seller in the amount of One Hundred Thousand ($100,000) Dollars, or more, in each case, other than any such Contract that has expired in accordance with its terms;
(j) cancelled or waived any Actions or rights with a value to Seller in excess of Twenty-Five Thousand ($25,000) Dollars, provided that this Section 3.8(j) shall not apply to any Action which is a Retained Liability; or
(ki) entered into or amended any Contract with respect to any of the foregoing; Since the Balance Sheet Date, to Seller’s Actual Knowledge, except as set forth on Schedule 3.8 attached hereto, there has been no act or omission on the part of Seller or others which would form the basis for the assertion against Seller of any material Liability, no other event has occurred which could be reasonably expected to have a Seller Material Adverse Effect upon the Assets or the Business, and, to Seller’s Knowledge, there is no development or threatened development of a nature which could be reasonably expected to have a Seller Material Adverse Effect upon the Assets or the Business.
Appears in 1 contract
