Purchase and Sale of the Purchased Assets Except as otherwise provided below, upon the terms and subject to the conditions of this Agreement, Buyer agrees to purchase from Seller and the Retained Subsidiaries, and Seller agrees to, and to cause the Retained Subsidiaries to, sell, convey, transfer, assign and deliver, or cause to be sold, conveyed, transferred, assigned and delivered, to Buyer at the Closing, free and clear of any Liens other than Permitted Liens, all of Seller’s and the Retained Subsidiaries’ right, title and interest in, to and under the assets, properties and business, of every kind and description, owned, used or held for use primarily in the conduct of the Business by Seller or any of the Retained Subsidiaries (but, for the avoidance of doubt, excluding any Excluded Assets or assets and properties of any Purchased Subsidiary) (the “Purchased Assets”), including all right, title and interest of Seller and the Retained Subsidiaries in, to and under the following Purchased Assets: (a) the Owned Real Property, together with all buildings, fixtures and improvements erected thereon; (b) all rights under the Leases with respect to the Leased Real Property; (i) all tangible personal property and interests therein, including machinery, equipment, furniture, office equipment, communications equipment, vehicles, storage tanks, spare and replacement parts, fuel and other tangible property (including all interests in personal property underlying capital leases) located at the Real Property and held for use primarily in the conduct of the Business and (ii) those assets of Seller related primarily to the Business that are located at its Corporate Technology Center facility located in Milwaukee, Wisconsin, which are listed on Schedule 2.02(c); (d) all raw materials, work-in-process, finished goods, supplies and other inventories used or held for use primarily in the conduct of the Business (collectively, the “Inventory”); (e) all rights under all Contracts (other than the Leases) used or held for use primarily in the conduct of the Business, including those listed in Schedule 2.02(e) (the “Purchased Contracts”); (f) all rights, claims, credits, causes of action or rights of set-off against third parties relating to or arising from the Purchased Assets or the Assumed Liabilities, including unliquidated rights under manufacturers’ and vendors’ warranties; (g) all trade accounts receivable and other receivables (collectively, the “Accounts Receivable”) to the extent arising out of the Business; (h) all prepaid assets to the extent arising out of the Business; (i) all Business Intellectual Property Rights other than Business Intellectual Property Rights owned by the Purchased Subsidiaries; (j) all Permits that are necessary to the operation of the Business; and (k) Business Records relating primarily to the Business.
Payments With Respect to Shared-Loss Assets Not later than fifteen (15) days after the date on which the Receiver receives the Monthly Certificate, the Receiver shall pay to the Assuming Institution, in immediately available funds, an amount equal to the Applicable Percentage of the Monthly Shared-Loss Amount reported on the Monthly Certificate. If the total Monthly Shared-Loss Amount reported on the Monthly Certificate is a negative number, the Assuming Institution shall pay to the Receiver in immediately available funds the Applicable Percentage of that amount.
Payments and Credits with Respect to the Cash Accounts The Custodian shall make payments from or deposits to any of said accounts in the course of carrying out its administrative duties, including but not limited to income collection with respect to the Fund's Investments, and otherwise in accordance with Instructions. The Custodian and its Subcustodians shall be required to credit amounts to the cash accounts only when moneys are actually received in cleared funds in accordance with banking practice in the country and currency of deposit. Any credit made to any Principal or Agency Account before actual receipt of cleared funds shall be provisional and may be reversed by the Custodian in the event such payment is not actually collected. Unless otherwise specifically agreed in writing by the Custodian or any Subcustodian, all deposits shall be payable only at the branch of the Custodian or Subcustodian where the deposit is made or carried.
Operations Prior to the Closing Date (a) From the ------------------------------------ date hereof through the Closing Date, Parent shall cause the Companies to operate and carry on the Business in the ordinary course in accordance with past practice and in compliance with all applicable Requirements of Law, including Environmental Laws. Consistent with the foregoing, Parent shall cause each of the Companies to use its reasonable efforts consistent with good business practice to (i) maintain the business organization of the Companies intact, (ii) keep available the services of any key employees of the Companies and (iii) preserve the goodwill and beneficial relationships of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Companies. (b) Notwithstanding Section 7.4(a), except as set forth in Schedule -------------- -------- 7.4, except as contemplated by this Agreement or except with the express written --- approval of Buyer (which, in the case of clauses (ii), (iii), (vi), (ix), (x) and (xviii), Buyer agrees shall not be unreasonably withheld or delayed), Parent shall cause each of the Companies not to: (i) make any material change in the Business or its operations, except such changes as may be required to comply with any applicable Requirements of Law; (ii) make any capital expenditure or enter into any contract or commitment therefor, other than in the ordinary course of the Business, which is in excess of $50,000; (iii) other than in the ordinary course of the Business, enter into any contract, agreement, undertaking or commitment which would have been required to be set forth in Schedule 5.14(a) or 5.14(b) if in effect on the ---------------- ------- date hereof or amend any Business Agreement in any material respect; (iv) enter into any contract that contains a "change of control" provision that would give the other party a right to terminate such contract upon the consummation of the transactions contemplated hereby or under which the consummation of the transactions contemplated hereby would constitute a default; (v) enter into any contract for the purchase of real property or exercise any option to extend a lease listed in Schedule 5.9; ------------ (vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers to any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of its properties, rights or assets, other than inventory and minor amounts of personal property sold or otherwise disposed of in the ordinary course of the Business consistent with past practice and other than Permitted Encumbrances; (vii) cancel any debts owed to or claims held by it or pay, settle or discharge any claims/litigation, proceedings, actions or liabilities, other than in the ordinary course of the Business consistent with past practice; (viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness for Borrowed Money (other than money borrowed or advances from any of its Affiliates in the ordinary course of the Business consistent with past practice) or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13); (ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of the Business consistent with past practice; (x) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice; (xi) make, or agree to make, any distribution of assets (other than cash) to Parent or any of its Affiliates; (xii) institute any increase in any benefit provided, or loan or advance any money or property, to any present or former director, officer, consultant or employee of any of the Companies, other than in the ordinary course of the Business consistent with past practice or as required by any Company Plan, Parent Plan or Requirements of Law; (xiii) make any material change in the compensation of its employees, other than changes made in accordance with normal compensation practices of the Companies or pursuant to existing contractual commitments and consistent with past compensation practices, or grant any severance or termination pay to any of its employees or amend the form of retention and severance agreement contained in Schedule 7.4; ------------ (xiv) establish, adopt, enter into, amend or terminate any Company Plan, or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence on the date hereof, other than in the ordinary course of the Business consistent with past practice or as required by any Company Plan, Parent Plan or Requirement of Law; (xv) make any material change in the accounting policies applied in the preparation of the Interim Financial Statements, unless such change is required by GAAP; (xvi) make any change in its charter, by-laws or other organizational document or issue any capital stock (or securities exchangeable, convertible or exercisable for capital stock); (xvii) split, combine or reclassify any shares of its capital stock or partnership or membership interests or declare, set aside or pay any dividends or make any other distributions (whether in cash, stock or other property) in respect of such shares or interests, except for cash dividends and distributions payable by a Conveyed Companies Subsidiary to any of the Companies, Parent or Affiliates of Parent; (xviii) except as required by law, and except in cases where doing so would not have a material adverse consequence to Buyer Group Members with respect to taxable years or periods beginning after the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date, file any Tax Return in a manner inconsistent with past practice or take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in prior periods in filing Tax Returns (including any such position, election or method which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Parent is liable); (xix) amend any Tax Returns or settle or compromise any proceeding relating to Tax liabilities of any Company, in either case if doing so would, or would reasonably be expected to, materially adversely affect any Buyer Group Member with respect to taxable years or periods beginning after the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date; (xx) enter into or amend any aviation, manufacturing or transportation customer contract, other than new contracts with existing customers and amendments to existing contracts, in each case, where the terms of such new contract or amendment are not materially less favorable to the Companies than existing contracts with such customers; (xxi) enter into any joint venture, partnership or similar arrangement or acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture association or other business organization or division thereof; (xxii) merge or consolidate with or into any other Person or dissolve or liquidate; or (xxiii) authorize, commit or agree, whether in writing or otherwise, to do any of the foregoing.
Title to the Shares Seller owns of record and beneficially the Shares of the Company, free and clear of all liens, encumbrances, pledges, claims, options, charges and assessments of any nature whatsoever, with full right and lawful authority to transfer the Shares to Buyer. No person has any preemptive rights or rights of first refusal with respect to any of the Shares. There exists no voting agreement, voting trust, or outstanding proxy with respect to any of the Shares. There are no outstanding rights, options, warrants, calls, commitments, or any other agreements of any character, whether oral or written, with respect to the Shares.
Purchased Assets On the terms and subject to the conditions of this Agreement, at the Closing, Seller shall, and shall cause its Subsidiaries to, sell, assign, transfer, convey and deliver to Purchaser (or a Subsidiary or Subsidiaries of Purchaser identified to Seller in writing at least three (3) business days before the Closing), and Purchaser shall (or shall cause its applicable Subsidiaries to) purchase and acquire from Seller and its Subsidiaries all of Seller’s and/or its Subsidiaries’ right, title and interest as of the Closing in the following (collectively, the “Purchased Assets”), free and clear of all Liens, other than Permitted Liens: (a) (i) each Business License Contract and (ii) each Contract with customers (including support and services Contracts), partners, distributors or resellers of the Business (other than, for the avoidance of doubt, (x) Contracts solely between Seller and its Subsidiaries or solely between Subsidiaries of Seller and (y) leases of real property) (collectively, (i) and (ii), together with the Contracts designated as Purchased Assets pursuant to Section 2.4(l), such Contracts or portions (to the extent related to the Business) of Contracts, the “Business Contracts”); provided that and for the avoidance of doubt, Business Contracts shall not include any Contract in respect of hosting services provided to the Business; (b) the Transferred Leases; (c) the Transferred Intellectual Property Rights, including (other than with respect to Retained Claims) the right to seek and obtain damages for the past, present or future infringement, misappropriation or other violation of any Transferred Intellectual Property Rights, and the goodwill of the Business appurtenant to such Transferred Intellectual Property Rights; (d) the Transferred Technology, including (other than with respect to Retained Claims) the right to seek and obtain damages for the past, present or future infringement, misappropriation or other violation of any Transferred Technology and the goodwill of the Business appurtenant to such Transferred Technology; provided that Seller shall be permitted to keep copies of any Transferred Technology to the extent it constitutes Shared Transferred Technology subject to the terms and conditions of the Intellectual Property License Agreement; (e) any and all Permits primarily related to the Business (collectively, the “Transferred Permits”); (f) any and all claims, causes of action, defenses and rights of offset or counterclaims (in any manner arising or existing, whether xxxxxx or inchoate, known or unknown, contingent or non-contingent) at any time to the extent arising out of or related to the Business, the Purchased Assets or the Assumed Liabilities and the right to retain all proceeds and monies therefrom, other than any Retained Claims; (g) any and all rights under Contracts between Seller or one of its Subsidiaries and any Transferred Business Employee to the extent they restrict the Transferred Business Employee from competing with, or soliciting employees, customers, clients, vendors, and other Persons engaged in a business relationship with, the Business; (h) true and complete copies of the Business Books and Records; provided that Seller shall be permitted to keep copies of such Business Books and Records to the extent relating to the Retained Business or the Retained Liabilities, or otherwise to the extent reasonably necessary, and only for so long as required, for Seller’s financial reporting purposes; (i) any and all raw materials, works-in-process, finished goods, supplies and other inventories, including two-factor authentication tokens, to the extent related to, used in or held for use in the Business; (j) all rights under letters of credit, performance bonds, negotiable instruments and other credit support instruments to the extent third parties provide credit support for any Business Contract or any other Purchased Assets pursuant to the foregoing (collectively, the “Transferred Financial Instruments”); (k) any and all prepaid assets and deposits to the extent made or paid in respect of any Purchased Assets described in Section 2.4(i) or any tangible assets (including Tangible Personal Property and Information Technology) that become Purchased Assets pursuant to Section 2.4(l) (the “Transferred Prepaid Assets”); (l) all other assets, Contracts or rights of any kind (including Tangible Personal Property and Information Technology, but excluding owned or leased real property, permits, Intellectual Property Rights (other than any Contracts) and Minority Investments), wherever located, whether personal, or mixed, tangible or intangible, that are owned by Seller or any of its Subsidiaries or to which Seller or any of its Subsidiaries is a party or has a license or other right with respect thereto, and in each case, that are primarily related to or primarily used or held for use in the Business and are not listed on Section 2.5(o) of the Seller Disclosure Letter, and that have been designated as a “Purchased Asset” by Purchaser in writing in its sole discretion prior to the Asset Selection Cut-Off Time; and (m) any and all assets set forth on Section 2.4(m) of the Seller Disclosure Letter.
Agreement with Respect to Interim Asset Servicing At any time after Bank Closing, the Receiver may establish on its books an asset pool(s) and may transfer to such asset pool(s) (by means of accounting entries on the books of the Receiver) all or any assets and liabilities of the Failed Bank which are not acquired by the Assuming Institution, including, without limitation, wholly unfunded Commitments and assets and liabilities which may be acquired, funded or originated by the Receiver subsequent to Bank Closing. The Receiver may remove assets (and liabilities) from or add assets (and liabilities) to such pool(s) at any time in its discretion. At the option of the Receiver, the Assuming Institution agrees to service, administer, and collect such pool assets in accordance with and for the term set forth in Exhibit 4.13 "Interim Asset Servicing Arrangement".
Acquired Assets On the Closing Date, in accordance with this Agreement, Seller and its Subsidiaries shall sell, convey, transfer, assign and deliver to Buyer, free and clear of any and all Encumbrances, and Buyer will purchase, acquire and accept, all of Seller's and its Subsidiaries' respective right, title and interest in and to the following properties, assets and other rights, personal or mixed, tangible or intangible (collectively, the "Acquired Assets"): (a) The Equipment of Seller and its Subsidiaries listed on Schedule 2.1(a), together with any Equipment transferred to Buyer pursuant to Section 2.4 (c) (the "Acquired Equipment"); (b) The inventory of Seller and its Subsidiaries listed on Schedule 2.1(b) (the "Acquired Inventory"); (c) The Contracts of Seller and its Subsidiaries (including any future claims arising from or related to such contracts) listed on Schedule 2.1(c) hereto and the Backlog related to such Contracts (the "Assumed Contracts"); (d) Copies or originals of all books, records, data (in any media), papers and instruments of whatever nature and wherever located to the extent related to the Acquired Assets; (e) All licenses, sublicenses and other contract rights held by Seller and its Subsidiaries in connection with the Business listed on Schedule 2.1(e), including all Insituform and NuPipe licenses, sublicenses and rights to use or operate under Insituform or NuPipe patents or trademarks, and intangible or intellectual property rights, including know-how, relating thereto or to the Business (the "Acquired Intellectual Property"); (f) All Permits required solely in connection with the Business in effect as of the Closing Date, to the extent such Permits are transferable (the "Acquired Permits"); and (g) All rights to the name "Insituform", "Insituform East", "MidSouth" and "insitu" and all derivatives thereof.
Conduct of Business Pending the Closing During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with its terms or the Closing, the Company shall, and shall cause each of its Subsidiaries to, carry on the Business in the ordinary course of business and, to the extent consistent therewith, use all commercially reasonable efforts to preserve the Business intact and preserve the goodwill of and relationships with Governmental Entities, customers, suppliers, partners, lessors, licensors, licensees, contractors, distributors, agents, officers and employees and others having business dealings with the Business, provided that the foregoing shall not prevent Sellers from rejecting Contracts that are not Assumed Contracts. During the period from the date of this Agreement through the Closing Date, the Company shall endeavor to maintain the Net Receivables Amount, the Inventory Value and each component of Inventory at or in excess of the amounts set forth on Schedule 7.1. Without limiting the generality of the first sentence of this Section 7.1, during the period from the date of this Agreement through the Closing Date, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Buyer: (a) abandon any rights under any of the Assumed Contracts; terminate, amend, modify or supplement the terms of any Assumed Contract; or fail to honor or perform, the Assumed Contracts; (b) other than sales of Inventory in the ordinary course of business or the disposition of obsolete equipment, lease, license, surrender, relinquish, sell, transfer, convey, assign or otherwise dispose of any Acquired Assets; (c) mortgage, pledge or subject to Liens (other than Permitted Liens), any property, business or any of the Acquired Assets, other than as would not result in any Liability that would be or would increase an Assumed Liability as of or subsequent to the Closing; (d) incur or permit to be incurred any Liability (other than Accounts Payable or in connection with the performance of Assumed Contracts) that would be or would increase an Assumed Liability as of or subsequent to the Closing; (e) fail to replenish the Inventory and Supplies of the Business in the ordinary course of business; (f) increase the salary of any Identified Employee at or after the time such person becomes an Identified Employee, other than in the ordinary course of business consistent with past practice; (g) make or rescind any material Tax election or take any material Tax position (unless required by law) or file any Tax Return or change its fiscal year or financial or Tax accounting methods, policies or practices, or settle any Tax Liability, except in each case as would not reasonably be expected to affect the Buyer; (h) institute, settle or agree to settle any litigation, action or Proceeding before any court or Governmental Entity relating to the Acquired Assets, or modify in any manner that is adverse to the Business or the Acquired Assets, rescind or terminate a material Permit, allowance, or credit (or application therefor) relating to the Business or the Acquired Assets; (i) transfer or grant any rights under, modify any existing rights under, or enter into any settlement regarding the breach or infringement of, any material Intellectual Property; or (j) enter into any Contract to do any of the foregoing.
Conduct of Business Prior to the Effective Time 6.1 Conduct of Business of the Company. During the period commencing on the date hereof and continuing until the Effective Time, the Company and the Sole Stockholder agree that the Company, except as otherwise expressly contemplated by this Agreement or agreed to in writing by the Parent: (a) will carry on its business only in the ordinary course and consistent with past practice; (b) will not declare or pay any dividend on or make any other distribution (however characterized) in respect of shares of its capital stock; (c) will not, directly or indirectly, redeem or repurchase, or agree to redeem or repurchase, directly or indirectly, any shares of its capital stock; (d) will not amend its Certificate of Incorporation or By-Laws; (e) will not issue, or agree to issue, any shares of its capital stock, or any options, warrants or other rights to acquire shares of its capital stock, or any securities convertible into or exchangeable for shares of its capital stock; (f) will not combine, split or otherwise reclassify any shares of its capital stock; (g) will not form any subsidiaries; (h) will use its best efforts to preserve intact its present business organization, keep available the services of its officers and key employees and preserve its relationships with clients and others having business dealings with it to the end that its goodwill and ongoing business shall not be materially impaired at the Effective Time; (i) will not (i) make any capital expenditures individually or in the aggregate in excess of $10,000, (ii) enter into any license, distribution, OEM, reseller, joint venture or other similar agreement other than in the ordinary course, (iii) enter into or terminate any lease of, or purchase or sell, any real property, (iv) enter into any leases of personal property involving individually or in the aggregate in excess of $10,000 annually, (v) incur or guarantee any additional indebtedness for borrowed money other than in the ordinary course, (vi) create or permit to become effective any security interest, mortgage, lien, charge or other encumbrance on any of its properties or assets, or (vii) enter into any agreement to do any of the foregoing; (j) will not adopt or amend any Benefit Plan for the benefit of Employees, or increase the salary or other compensation (including, without limitation, bonuses or severance compensation) payable or to become payable to its Employees or accelerate, amend or change the period of exercisability or the vesting schedule of options or restricted stock granted under any stock option plan or agreements or enter into any agreement to do any of the foregoing, except as specifically required by the terms of such plans or agreements; (k) will not accelerate receivables or delay payables; (l) will promptly advise the Parent of the commencement of, or threat of (to the extent that such threat comes to the knowledge of the Company or the Sole Stockholder) any claim, action, suit, proceeding or investigation against, relating to or involving the Company or any of its respective officers, employees, agents or consultants in connection with their businesses or the transactions contemplated hereby; (m) will use its commercially reasonable efforts to maintain in full force and effect all insurance policies maintained by the Company on the date hereof; (n) will not enter into any agreement to dissolve, merge, consolidate or, sell any material assets of the Company (other than in the ordinary course) or acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial equity interest in or substantial portion of the assets of, or by any other manner, any business or any corporation, partnership or other business organization or division, or otherwise acquire or agree to acquire any assets in excess of $10,000 in the aggregate; and (o) will not make any payments to officers or directors other than in the ordinary course; (p) will not enter into any agreements with contractors or consultants (or amend or authorize additional work orders with respect to any such existing agreements); and (q) will not change, accelerate or alter, in each case, the payment terms of any existing contract or agreement nor enter into any contract or agreement with payment terms (including timing) not materially consistent with past practice. 6.2 Conduct of Business of Acquisition Corp. During the period commencing on the date hereof and continuing until the Effective Time, Acquisition Corp. shall not engage in any activities of any nature except as provided in or contemplated by this Agreement.
