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Common use of Existing Condition Clause in Contracts

Existing Condition. Since the Balance Sheet Date, Seller has not: (a) incurred any liabilities in connection with the Transferred Business, other than liabilities incurred in the ordinary course of the Transferred Business consistent with past practice, or discharged or satisfied any lien or encumbrance liabilities in connection with the Transferred Business, or paid any liabilities, other than in the ordinary course of the Transferred Business consistent with past practice, or failed to pay or discharge when due any liabilities of which the failure to pay or discharge has caused or will cause any material damage or risk of material loss to it or the Purchased Assets or the Transferred Business; (b) sold, encumbered, assigned or transferred any material assets or properties which would have been included in the Purchased Assets if the Closing had been held on the Balance Sheet Date or on any date since then, except for the sale of inventory in the ordinary course of business consistent with past practice and the grant of licenses that are in the ordinary course of business; (c) mortgaged, pledged or subjected any of the Purchased Assets to any mortgage, lien, pledge, security interest, conditional sales contract or other encumbrance of any nature whatsoever, except for Permitted Liens that are in the ordinary course of business; (d) made or suffered any amendment or termination of any material agreement, contract, commitment, lease or plan relating to the Purchased Assets or the Transferred Business to which Seller is a party or by which Seller is bound, or canceled, modified or waived any substantial debts or claims relating to the Purchased Assets or the Transferred Business held by Seller or waived any rights relating to the Purchased Assets or the Transferred Business of substantial value, whether or not in the ordinary course of business, except as set forth on SCHEDULE 3.1.11(d); (e) suffered any damage, destruction or loss, whether or not covered by insurance, (i) materially and adversely affecting the Transferred Business or the prospects or condition (financial or otherwise) of the Purchased Assets or the Transferred Business or (ii) of any item or items carried on its books of account individually or in the aggregate at more than $100,000, or suffered any repeated, recurring or prolonged shortage, cessation or interruption of supplies or Utilities or other services required to conduct the Transferred Business or operate the Purchased Assets;

Appears in 2 contracts

Samples: Asset Purchase Agreement (Adams Laboratories, Inc.), Asset Purchase Agreement (Adams Respiratory Therapeutics, Inc.)

Existing Condition. Since Except as disclosed in Section ------------------- 3.11 of the Disclosure Schedule, since December 31, 1996 in the case of MAA and MAI and since the XXXXX Balance Sheet DateDate in the case of the Subsidiaries, Seller has notneither MAA, MAI nor any of the Subsidiaries has: (a) declared, set aside or paid any dividend or made or agreed to make any other distribution or payment in respect of its capital shares or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or acquire any of its capital shares; (b) incurred any liabilities in connection with the Transferred Businessliabilities, other than liabilities incurred in the ordinary course of the Transferred Business business consistent with past practice, or discharged or satisfied any lien or encumbrance liabilities in connection with the Transferred Businessencumbrance, or paid any liabilities, other than in the ordinary course of the Transferred Business business consistent with past practice, or failed to pay or discharge when due any liabilities of which the failure to pay or discharge has caused or will is reasonably expected to cause any material damage or risk of material loss to it or the Purchased Assets or the Transferred Businessa Material Adverse Effect; (bc) sold, encumbered, assigned or transferred any material of its assets or properties which would have been included in the Purchased Assets if the Closing had been held on the Balance Sheet Date or on any date since then, except for the sale of inventory in the ordinary course of business consistent with past practice and the grant of licenses that are in the ordinary course of businesspractice; (cd) created, incurred, assumed or guaranteed any indebtedness for money borrowed, or mortgaged, pledged or subjected any of the Purchased Assets to any mortgage, lien, pledge, security interestLien, conditional sales contract or other encumbrance of any nature whatsoeverwhatsoever any of its assets or properties, except for other than Permitted Liens that are in the ordinary course of businessLiens; (de) made or suffered any material amendment or any termination of any material agreement, contract, commitment, lease or plan relating to the Purchased Assets or the Transferred Business to which Seller it is a party or by which Seller it is bound, or canceledcancelled, modified or waived any substantial debts or claims relating to the Purchased Assets or the Transferred Business held by Seller or waived any rights relating to the Purchased Assets or the Transferred Business of substantial valueit, whether or not other than in the ordinary course of business, except as set forth on SCHEDULE 3.1.11(d); business consistent with past practice; (ef) suffered any damage, destruction or loss, whether or not covered by insurance, (i) materially and adversely affecting the Transferred Business or the prospects or condition (financial or otherwise) of the Purchased Assets or the Transferred Business or (ii) of any item or items carried on its books of account individually or in the aggregate at more than $100,000, insurance which has had a Material Adverse Effect or suffered any repeated, recurring or prolonged shortage, cessation or interruption of supplies or Utilities or other utility services required to conduct its business and operations; (g) suffered any Material Adverse Change after taking into account all disclosures set forth on the Transferred Business Disclosure Schedule; (h) received notice or operate has knowledge of any actual or threatened labor, union organizing effort, strike or other occurrence, event or condition or any similar character which has had or could reasonably be expected to have a Material Adverse Effect; (i) received any notice or has any knowledge of any basis for assertions of liability, claims, causes of action, charges, suits, complaints, administrative proceedings, government investigations or proceedings, arbitrations or other proceedings pending or threatened against MAA, MAI or any of the Purchased AssetsSubsidiaries relating to any current or former employee or director of MAA, MAI or any of the Subsidiaries, or any federal, state or local laws and regulations thereunder or the common law relating to employment or employment practices of MAA, MAI or any of the Subsidiaries; (j) made any capital expenditure or capital addition or betterment except such as may be involved in ordinary repair, maintenance and replacement of its assets; (k) increased the salaries or other compensation of, or made any advance (excluding advances for ordinary and necessary business expenses) or loan to, any of its shareholders, partners, directors, officers or employees, or made any increase in, or any addition to, other benefits to which any of its shareholders, partners, directors, officers or employees may be entitled other than in the ordinary cause of business; (l) changed any of the accounting principles followed by it or the methods of applying such principles; or (m) entered into any transaction other than as contemplated by this Agreement or in the ordinary course of business consistent with past practice.

Appears in 1 contract

Samples: Stock Purchase Agreement (American Mobile Satellite Corp)

Existing Condition. Since Except as disclosed in Section 3.11 of the Disclosure Schedule, since December 31, 1996 in the case of MAA and MAI and since the XXXXX Balance Sheet DateDate in the case of the Subsidiaries, Seller has notneither MAA, MAI nor any of the Subsidiaries has: (a) declared, set aside or paid any dividend or made or agreed to make any other distribution or payment in respect of its capital shares or redeemed, purchased or otherwise acquired or agreed to redeem, purchase or acquire any of its capital shares; (b) incurred any liabilities in connection with the Transferred Businessliabilities, other than liabilities incurred in the ordinary course of the Transferred Business business consistent with past practice, or discharged or satisfied any lien or encumbrance liabilities in connection with the Transferred Businessencumbrance, or paid any liabilities, other than in the ordinary course of the Transferred Business business consistent with past practice, or failed to pay or discharge when due any liabilities of which the failure to pay or discharge has caused or will is reasonably expected to cause any material damage or risk of material loss to it or the Purchased Assets or the Transferred Businessa Material Adverse Effect; (bc) sold, encumbered, assigned or transferred any material of its assets or properties which would have been included in the Purchased Assets if the Closing had been held on the Balance Sheet Date or on any date since then, except for the sale of inventory in the ordinary course of business consistent with past practice and the grant of licenses that are in the ordinary course of businesspractice; (cd) created, incurred, assumed or guaranteed any indebtedness for money borrowed, or mortgaged, pledged or subjected any of the Purchased Assets to any mortgage, lien, pledge, security interestLien, conditional sales contract or other encumbrance of any nature whatsoeverwhatsoever any of its assets or properties, except for other than Permitted Liens that are in the ordinary course of businessLiens; (de) made or suffered any material amendment or any termination of any material agreement, contract, commitment, lease or plan relating to the Purchased Assets or the Transferred Business to which Seller it is a party or by which Seller it is bound, or canceledcancelled, modified or waived any substantial debts or claims relating to the Purchased Assets or the Transferred Business held by Seller or waived any rights relating to the Purchased Assets or the Transferred Business of substantial valueit, whether or not other than in the ordinary course of business, except as set forth on SCHEDULE 3.1.11(d); business consistent with past practice; (ef) suffered any damage, destruction or loss, whether or not covered by insurance, (i) materially and adversely affecting the Transferred Business or the prospects or condition (financial or otherwise) of the Purchased Assets or the Transferred Business or (ii) of any item or items carried on its books of account individually or in the aggregate at more than $100,000, insurance which has had a Material Adverse Effect or suffered any repeated, recurring or prolonged shortage, cessation or interruption of supplies or Utilities or other utility services required to conduct its business and operations; (g) suffered any Material Adverse Change after taking into account all disclosures set forth on the Transferred Business Disclosure Schedule; (h) received notice or operate has knowledge of any actual or threatened labor, union organizing effort, strike or other occurrence, event or condition or any similar character which has had or could reasonably be expected to have a Material Adverse Effect; (i) received any notice or has any knowledge of any basis for assertions of liability, claims, causes of action, charges, suits, complaints, administrative proceedings, government investigations or proceedings, arbitrations or other proceedings pending or threatened against MAA, MAI or any of the Purchased AssetsSubsidiaries relating to any current or former employee or director of MAA, MAI or any of the Subsidiaries, or any federal, state or local laws and regulations thereunder or the common law relating to employment or employment practices of MAA, MAI or any of the Subsidiaries; (j) made any capital expenditure or capital addition or betterment except such as may be involved in ordinary repair, maintenance and replacement of its assets; (k) increased the salaries or other compensation of, or made any advance (excluding advances for ordinary and necessary business expenses) or loan to, any of its shareholders, partners, directors, officers or employees, or made any increase in, or any addition to, other benefits to which any of its shareholders, partners, directors, officers or employees may be entitled other than in the ordinary cause of business; (l) changed any of the accounting principles followed by it or the methods of applying such principles; or (m) entered into any transaction other than as contemplated by this Agreement or in the ordinary course of business consistent with past practice.

Appears in 1 contract

Samples: Stock Purchase Agreement (Motorola Inc)

Existing Condition. Since the Balance Sheet Date, Seller has not: (a) incurred any liabilities in connection with the Transferred Business, other than liabilities incurred in the ordinary course of the Transferred Business consistent with past practice, or discharged or satisfied any lien or encumbrance liabilities in connection with the Transferred Business, or paid any liabilities, other than in the ordinary course of the Transferred Business consistent with past practice, or failed to pay or discharge when due any liabilities of which the failure to pay or discharge has caused or will cause any material damage or risk of material loss to it or the Purchased Assets or the Transferred Business; (b) sold, encumbered, assigned or transferred any material assets or properties which would have been included in the Purchased Assets if the Closing had been held on the Balance Sheet Date or on any date since then, except for the sale of inventory Inventory in the ordinary course of business consistent with past practice and the grant of licenses that are in the ordinary course of businessbusiness and are set forth on SCHEDULE 3.1.17(j); (c) mortgaged, pledged or subjected any of the Purchased Assets to any mortgage, lien, pledge, security interest, conditional sales contract or other encumbrance Encumbrance of any nature whatsoever, except for Permitted Liens and grants of licenses that are in the ordinary course of businessbusiness and are set forth on SCHEDULE 3.1.17(j); (d) made or suffered any amendment or termination of any material agreement, contract, commitment, lease or plan relating to the Purchased Assets or the Transferred Business to which Seller is a party or by which Seller is bound, or canceled, modified or waived any substantial debts or claims relating to the Purchased Assets or the Transferred Business held by Seller or waived any rights relating to the Purchased Assets or the Transferred Business of substantial value, whether or not in the ordinary course of business, except as set forth on SCHEDULE 3.1.11(d); ; (e) suffered any damage, destruction or loss, whether or not covered by insurance, (i) materially and adversely affecting the Transferred Business or the prospects or condition (financial or otherwise) of the Purchased Assets or the Transferred Business or (ii) of any item or items carried on its books of account individually or in the aggregate at more than $100,000[*], or suffered any repeated, recurring or prolonged shortage, cessation or interruption of supplies or Utilities or other services required to conduct the Transferred Business or operate the Purchased Assets; (f) suffered any material adverse change in the Transferred Business, the Purchased Assets, or the prospects or condition (financial or otherwise) of the Transferred Business or the Purchased Assets; (g) received notice or had knowledge of any occurrence, event or condition which is reasonably likely to have a material adverse effect on the Transferred Business or the Purchased Assets or the prospects or condition (financial or otherwise) thereof; (h) made commitments or agreements for capital expenditures or capital additions or betterments relating to the Transferred Business or the Purchased Assets exceeding in the aggregate $[*]; (i) increased the salaries or other compensation of, or made any advance (excluding advances for ordinary and necessary business expenses) or loan to, any of the Plant Employees or Research Facility Employees or made any increase in, or any addition to, other benefits to which any such persons may be entitled, except for annual salary increases or bonus awards made in the ordinary course of business consistent with past practice; or (j) changed any of the accounting principles followed by it or the methods of applying such principles.

Appears in 1 contract

Samples: Asset Purchase Agreement (Advanced Polymer Systems Inc /De/)