Other Obligations of Seller. Seller and Stockholder shall jointly and severally take all of the following actions prior to Closing: (a) Seller shall cause the adoption, without subsequent modification or amendment, of the 2004 Data Transit Severance Plan in the form included in Schedule 4.16(c) and shall cause such plan to be implemented in all respects; such implementation to include the effectuation of a formal commitment by Seller to pay severance compensation equal to 8 weeks of salary to any Seller employee that does not receive a job offer from Purchaser. (b) Seller shall implement, without subsequent modification or amendment, the Data Transit Corp. Amended 2001 Incentive Compensation Plan in the form previously provided to Purchaser and shall commit to pay to the participants of such plan in a manner based upon previous awards of benefits under such plan as previously disclosed to Purchaser, which commitments may, subject to the plan's terms, obligate Seller to make cash distributions to participants in an aggregate amount up to $2,158,000. (c) So that Seller may assign same to Purchaser as provided in this Agreement, Stockholder shall assign to Seller by execution of documentation and other actions required in connection therewith, in each case in a manner reasonably satisfactory to Purchaser, all of Stockholder's issued patents, provisional patents and patent applications. (d) Seller shall deliver to Purchaser its current unaudited financial statements as soon as practicable. Such financial statements shall conform to the requirements of Section 4.6 relative to the Seller Unaudited Financial Statements. (e) So that Seller may assign same to Purchaser as provided in this Agreement, Stockholder shall assign to Seller by execution of documentation and other actions required in connection therewith, in each case in a manner reasonably satisfactory to Purchaser, all assets and other rights to or otherwise associated with the "BusProbes" business formerly conducted by Stockholder. (f) Seller shall terminate its current written agreements with its distributors and manufacturer's representatives in accordance with the terms thereof, which have been disclosed to Purchaser. (g) Seller shall inventory and identify by location its tooling that is held by Eclipse Metal and other suppliers in a written report delivered at or before Closing to Purchaser. (h) Beginning on the date of this Agreement and continuing through Closing, (i) Seller shall cease all deliveries of any Products to Customers and any other actions (including invoicing Customers for any Products) that could constitute consummation of sales or otherwise cause revenues to be recognized, provided that if Closing does not occur within 10 Business Days following the date hereof, Seller may resume Product deliveries, so long as the Current Customer Backlog updated to Closing continues to exceed $350,000 and (ii) Seller shall cease any inventory returns, provided that if Closing does not occur within 10 Business days following the date hereof, Seller may resume inventory returns, so long as the book value of inventory at any such time does not decrease below the book value at the date hereof as a result of any returns. (i) Contemporaneously with the execution hereof, Seller shall purchase from Purchaser eight (8) Xgig Analyzers (version 1.6) for 4 Gig Fibre Channel for an aggregate purchase price of $350,000 and the obligation for such purchase shall remain an Excluded Liability.
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Other Obligations of Seller. Seller and Stockholder shall jointly and severally take have complied with all of its other obligations under this Contract. If any one or more of the following actions prior to Closing:
conditions precedent hereinabove set forth shall not be in effect or complied with on the Closing Date, Buyer shall have the option, as its sole remedy, of either (a) Seller shall cause the adoptionwaiving compliance with any one or more of said conditions precedent and closing this transaction, without subsequent modification or amendment, of the 2004 Data Transit Severance Plan in the form included in Schedule 4.16(c) and shall cause such plan to be implemented in all respects; such implementation to include the effectuation of a formal commitment by Seller to pay severance compensation equal to 8 weeks of salary to any Seller employee that does not receive a job offer from Purchaser.
(b) Seller canceling this Contract, in which event the Deposit shall implementbe returned to Buyer and neither party shall have any further obligation to the other hereunder. Buyer may at any time and from time to time, without subsequent modification at Buyer’s election, waive anyone or amendmentmore of the foregoing conditions precedent, the Data Transit Corp. Amended 2001 Incentive Compensation Plan but any such waiver shall be effective only if contained in a writing signed by Buyer. No such waiver shall diminish Buyer’s rights or remedies in the form previously provided to Purchaser and shall commit to pay to the participants of such plan in a manner based upon previous awards of benefits under such plan as previously disclosed to Purchaser, which commitments may, subject to the plan's terms, obligate Seller to make cash distributions to participants in an aggregate amount up to $2,158,000.
(c) So that Seller may assign same to Purchaser as provided in this Agreement, Stockholder shall assign to Seller by execution of documentation and other actions required in connection therewith, in each case in a manner reasonably satisfactory to Purchaser, all of Stockholder's issued patents, provisional patents and patent applications.
(d) Seller shall deliver to Purchaser its current unaudited financial statements as soon as practicable. Such financial statements shall conform to the requirements of Section 4.6 relative to the Seller Unaudited Financial Statements.
(e) So that Seller may assign same to Purchaser as provided in this Agreement, Stockholder shall assign to Seller by execution of documentation and other actions required in connection therewith, in each case in a manner reasonably satisfactory to Purchaser, all assets and other rights to or otherwise associated with the "BusProbes" business formerly conducted by Stockholder.
(f) Seller shall terminate its current written agreements with its distributors and manufacturer's representatives in accordance with the terms thereof, which have been disclosed to Purchaser.
(g) Seller shall inventory and identify by location its tooling that is held by Eclipse Metal and other suppliers in a written report delivered at or before Closing to Purchaser.
(h) Beginning on the date of this Agreement and continuing through Closing, event (i) this transaction does not close and Seller has willfully (x) refused to execute and deliver the documents required hereunder to close the transaction contemplated hereby, or (y) taken any action which renders impossible the satisfaction of any such condition by the Closing Date, or (z) otherwise breached or defaulted in its material obligations hereunder, or (ii) this transaction closes and Seller breaches or defaults in any of its obligations to be performed after the Closing Date. If for any reason any item required to be delivered to Buyer or the Title Company hereunder shall not be delivered when required, Seller shall cease all deliveries nevertheless remain obligated to deliver the same to Buyer or the Title Company, and nothing (including the closing of the transaction contemplated hereunder) except a specific written waiver shall be deemed a waiver of any Products to Customers and such requirement. Notwithstanding any other actions (including invoicing Customers provision of this Contract to the contrary, if the transaction fails to close for any Products) that could constitute consummation reason, Seller shall have the right to terminate this Contract for failure of sales or otherwise cause revenues to a condition precedent. This Contract shall be recognizedcontingent upon the closing of the purchase of the Property by Seller from [***], provided that if Closing does Seller shall not occur within 10 Business Days following default under the date hereof, Seller may resume Product deliveriesterms of its Contract to purchase the Property and shall comply with its obligations and notice requirements thereunder, so long as the Current Customer Backlog updated to Closing continues to exceed $350,000 and (ii) Seller shall cease any inventory returns, provided that if Closing does Buyer is not occur within 10 Business days following the date hereof, Seller may resume inventory returns, so long as the book value of inventory at any such time does not decrease below the book value at the date hereof as a result of any returnsin default hereunder.
(i) Contemporaneously with the execution hereof, Seller shall purchase from Purchaser eight (8) Xgig Analyzers (version 1.6) for 4 Gig Fibre Channel for an aggregate purchase price of $350,000 and the obligation for such purchase shall remain an Excluded Liability.
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Other Obligations of Seller. During the period between the execution of this Agreement and Closing hereunder and with respect to the Parcel, the Parcel Closing hereunder, each Seller with respect to its property, covenants and agrees that it shall perform and observe the following with respect to the Property:
A. Seller shall keep and maintain the Buildings in the same condition as they now are, ordinary wear and tear and damage by accident or casualty excepted.
B. Seller will operate and maintain the Buildings in the ordinary course of business and use reasonable efforts to maintain the existing relationships of Seller and Stockholder shall jointly Seller's Tenants, suppliers, managers, employees and severally take all others having on-going relationships with the Buildings. Seller will not commence any capital expenditure program. Seller will not manage the Buildings differently, due to the pending sale of the following actions prior to ClosingBuildings.
C. Seller shall not:
(a1) Enter into any agreement requiring Seller to do work for any Tenant after the date of Closing without first obtaining the prior written consent of Buyer; or
(2) Accept the surrender of any Service Contract or Lease, or grant any concession, rebate, allowance or free rent, without the consent of Buyer, which consent shall not be unreasonably withheld.
D. Seller shall cause not, between the adoptiondate hereof and the date of Closing, without subsequent modification apply against rent due any Security Deposits with respect to any Tenant in occupancy on the date of Closing, unless such Tenant has vacated the Building.
E. Between the date hereof and the date of Closing, Seller will not renew, extend or amendment, modify any of the 2004 Data Transit Severance Plan Elected Service Contracts without the prior written consent of the Buyer in each instance first had and obtained. At the form included in Schedule 4.16(cClosing, Seller will cancel or will have previously cancelled (effective on the date of Closing) all Service Contracts except the Elected Service Contracts, with all cancellations at Seller's sole cost and shall cause such plan expense. The snow removal contract expires at the end of October, 1996. Seller will attempt to be implemented in all respects; such implementation to include negotiate the effectuation of a formal commitment by Seller to pay severance compensation equal to 8 weeks of salary to any Seller employee that does not receive a job offer from Purchaser.
(b) Seller shall implementsnow removal contract for the year commencing November, without subsequent modification or amendment, the Data Transit Corp. Amended 2001 Incentive Compensation Plan in the form previously provided to Purchaser and shall commit to pay to the participants of such plan in a manner based upon previous awards of benefits under such plan as previously disclosed to Purchaser, which commitments may1996, subject to the plan's termsapproval of Buyer, obligate which shall not be unreasonably withheld. If Buyer does not approve such contract as negotiated by Seller, then Seller to make cash distributions to participants in an aggregate amount up to $2,158,000shall not enter into such contract unless by its terms such contract can be terminated effective at the time of Closing.
(c) So that F. Seller shall not remove any of its Personal Property located in or on the Buildings or the Parcel, except as may assign same be required for repair and replacement. All replacements shall be free and clear of liens and encumbrances and shall be of quality at least equal to Purchaser as provided the replaced items and shall be deemed included in this Agreementsale, Stockholder shall assign without cost or expense to Seller by execution of documentation and other actions required in connection therewith, in each case in a manner reasonably satisfactory to Purchaser, all of Stockholder's issued patents, provisional patents and patent applicationsBuyer.
(d) G. Seller shall, upon the request of Buyer at any time after the date hereof, assist Buyer in its preparation of audited financial statements, statements of income and expense, and such other documentation as Buyer may reasonably request, covering the period of Seller's ownership of the Property.
H. Seller shall deliver not voluntarily cause the Buildings or the Parcel, or any interest therein, to Purchaser its current unaudited financial statements as soon as practicable. Such financial statements shall conform to the requirements of Section 4.6 relative to the Seller Unaudited Financial Statementsbe alienated, mortgaged, or otherwise be transferred.
I. Up to and including the date of Closing, Seller agrees to maintain and keep in full force and effect hazard and casualty insurance policies in such amounts and for such coverages as set forth on Exhibit "D", attached hereto and made a part hereof.
J. All violations of laws, statutes, ordinances, regulations or orders affecting the Buildings or the Parcel, whether or not such violations are now noted in the records of or have been issued by any governmental authorities will be complied with by Seller and the Buildings and the Parcel will be conveyed free of any such violations, provided that the cost of compliance, individually or in the aggregate, is less than or equal to Three Hundred Fifty Thousand Dollars (e) So $350,000.00). In the event that Seller may assign same to Purchaser as provided the cost of compliance, individually or in this Agreement, Stockholder shall assign to Seller by execution of documentation and other actions required in connection therewith, in each case in a manner reasonably satisfactory to Purchaser, all assets and other rights to or otherwise associated the aggregate with the "BusProbes" business formerly conducted by Stockholder.
cost of compliance as set forth in Paragraph 4.E hereof, is more than Three Hundred Fifty Thousand Dollars (f$350,000.00), then Buyer shall have the option of either (i) terminating this Agreement and receiving back the Deposit, or (ii) completing Closing hereunder and receiving from Seller a Three Hundred Fifty Thousand Dollar ($350,000.00) credit against the Purchase Price. Seller shall terminate its current written agreements with its distributors and manufacturerprovide to Buyer notice of any violation received by Seller within two (2) days after Seller's representatives in accordance with the terms receipt thereof, which have been disclosed to Purchaser.
(g) . Seller shall inventory and identify by location its tooling that is held by Eclipse Metal and other suppliers in a written report delivered provide to Buyer at least ten (10) days prior to Closing, evidence of Seller's payment or before Closing to Purchaser.
(h) Beginning on of Seller's correction of any violation made after the date of this Agreement and continuing through Agreement. Provided that if following Closing, (i) the existence of such violation shall not prohibit Buyer or any Tenant from using and enjoying the Building, the Parcel or any part thereof, then if Seller shall cease all deliveries disputes its liability for or the applicability of any Products to Customers and any other actions (including invoicing Customers for any Products) that could constitute consummation of sales or otherwise cause revenues to be recognized, provided that if Closing does not occur within 10 Business Days following the date hereof, Seller may resume Product deliveries, so long as the Current Customer Backlog updated to Closing continues to exceed $350,000 and (ii) Seller shall cease any inventory returns, provided that if Closing does not occur within 10 Business days following the date hereof, Seller may resume inventory returns, so long as the book value of inventory at any such time does not decrease below the book value at the date hereof as a result of any returns.
(i) Contemporaneously with the execution hereofviolation, Seller shall purchase have the right to contest said violation by appropriate measures. In connection with any such contest, Seller shall post with the court or agency having jurisdiction over such contest, or shall deposit in escrow with Title Company for the benefit of Buyer pursuant to an escrow agreement satisfactory to Buyer and Title Company, an amount equal to the estimated cost necessary to correct such violation, plus ten percent (10%). Seller shall have the right to continue such contest after Closing until a final determination thereof by the appropriate court or agency, provided Seller also agrees in writing, in form and substance acceptable to Buyer, to indemnify, defend and hold Buyer harmless from Purchaser eight (8) Xgig Analyzers (version 1.6) for 4 Gig Fibre Channel for an aggregate purchase price and against all actions, causes of $350,000 actions, fines, penalties, expenses, damages and the obligation for costs, which Buyer may incur resulting from such purchase shall remain an Excluded Liabilityviolation or contest.
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Other Obligations of Seller. Seller and Stockholder shall jointly and severally take have complied with all of its other obligations under this Contract. If any one or more of the following actions prior to Closing:
conditions precedent hereinabove set forth shall not be in effect or complied with on the Closing Date, Buyer shall have the option, as its sole remedy, of either (a) Seller shall cause the adoptionwaiving compliance with any one or more of said conditions precedent and closing this transaction, without subsequent modification or amendment, of the 2004 Data Transit Severance Plan in the form included in Schedule 4.16(c) and shall cause such plan to be implemented in all respects; such implementation to include the effectuation of a formal commitment by Seller to pay severance compensation equal to 8 weeks of salary to any Seller employee that does not receive a job offer from Purchaser.
(b) Seller canceling this Contract, in which event the Deposit shall implementbe returned to Buyer and neither party shall have any further obligation to the other hereunder. Buyer may at any time and from time to time, without subsequent modification at Buyer’s election, waive anyone or amendmentmore of the foregoing conditions precedent, the Data Transit Corp. Amended 2001 Incentive Compensation Plan but any such waiver shall be effective only if contained in a writing signed by Buyer. No such waiver shall diminish Buyer’s rights or remedies in the form previously provided to Purchaser and shall commit to pay to the participants of such plan in a manner based upon previous awards of benefits under such plan as previously disclosed to Purchaser, which commitments may, subject to the plan's terms, obligate Seller to make cash distributions to participants in an aggregate amount up to $2,158,000.
(c) So that Seller may assign same to Purchaser as provided in this Agreement, Stockholder shall assign to Seller by execution of documentation and other actions required in connection therewith, in each case in a manner reasonably satisfactory to Purchaser, all of Stockholder's issued patents, provisional patents and patent applications.
(d) Seller shall deliver to Purchaser its current unaudited financial statements as soon as practicable. Such financial statements shall conform to the requirements of Section 4.6 relative to the Seller Unaudited Financial Statements.
(e) So that Seller may assign same to Purchaser as provided in this Agreement, Stockholder shall assign to Seller by execution of documentation and other actions required in connection therewith, in each case in a manner reasonably satisfactory to Purchaser, all assets and other rights to or otherwise associated with the "BusProbes" business formerly conducted by Stockholder.
(f) Seller shall terminate its current written agreements with its distributors and manufacturer's representatives in accordance with the terms thereof, which have been disclosed to Purchaser.
(g) Seller shall inventory and identify by location its tooling that is held by Eclipse Metal and other suppliers in a written report delivered at or before Closing to Purchaser.
(h) Beginning on the date of this Agreement and continuing through Closing, event (i) this transaction does not close and Seller shall cease all deliveries has willfully (x) refused to execute and deliver the documents required hereunder to close the transaction contemplated hereby, or (y) taken any action which renders impossible the satisfaction of any Products to Customers and any other actions such condition by the Closing Date, or (including invoicing Customers for any Productsz) that could constitute consummation of sales otherwise breached or otherwise cause revenues to be recognizeddefaulted in its material obligations hereunder, provided that if Closing does not occur within 10 Business Days following the date hereof, Seller may resume Product deliveries, so long as the Current Customer Backlog updated to Closing continues to exceed $350,000 and or (ii) this transaction closes and Seller breaches or defaults in any of its obligations to be performed after the Closing Date. If for any reason any item required to be delivered to Buyer or the Title Company hereunder shall cease any inventory returns, provided that if Closing does not occur within 10 Business days following the date hereof, Seller may resume inventory returns, so long as the book value of inventory at any such time does not decrease below the book value at the date hereof as a result of any returns.
(i) Contemporaneously with the execution hereofbe delivered when required, Seller shall purchase from Purchaser eight nevertheless remain obligated to deliver the same to Buyer or the Title Company, and nothing (8) Xgig Analyzers (version 1.6including the closing of the transaction contemplated hereunder) for 4 Gig Fibre Channel for an aggregate purchase price except a specific written waiver shall be deemed a waiver of $350,000 and the obligation for any such purchase shall remain an Excluded Liabilityrequirement.
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