The Business and Its Assets
The Business and Its Assets Sample Clauses
Related to The Business and Its Assets
Purchased Assets Upon the terms set forth in this Agreement and subject to the conditions hereof and the provisions of Section 1.6, at the Closing, Seller will sell, transfer, assign, convey and deliver to Buyer, and Buyer will purchase and accept from Seller, all right, title and interest of Seller in, to and under the following properties (collectively, the “Purchased Assets”): (a) subject to Section 1.5, the Land, together with all structures, buildings, improvements, machinery, fixtures, and equipment affixed or attached to the Land and all easements and rights appurtenant thereto, including: (i) all easements, privileges and rights belonging or in any way appurtenant to the Land; and (ii) any and all air rights, subsurface rights, development rights, and water rights appurtenant to the Land (all of the foregoing being collectively referred to herein as the “Owned Real Property”), but expressly excluding the Removed Real Property; (b) all tangible personal property owned by Seller and used in connection with the Owned Real Property as of the date of this Agreement, including, specifically, without limitation, all equipment, furniture, tools and supplies (including all construction materials, work-in-process, finished goods, goods in transit, manufactured and purchased supplies and other materials) and any other personal property as is owned by the Seller, whether located on the Owned Real Property or with suppliers or others as of the date of this Agreement (collectively, the “Personal Property”); (c) the Home Sale Contracts as of the Closing Date (the “Assigned Home Sale Contracts”); (d) all xxxxxxx money deposits and other forms of security (whether or not held in escrow) held or controlled by or for Seller pursuant to the Assigned Home Sale Contracts (“Home Sale Contract Deposits”); (e) all customer and vendor lists, and business and financial records, books, and documents (including any books and records or documents relating to Taxes imposed on the Purchased Assets), to the extent any of the foregoing are related to or used with respect to the Owned Real Property, Personal Property or the Assigned Contracts, including all of Seller’s rights to architectural and engineering plans, subject to applicable fees for the reuse, signing and sealing of such plans, water and sewer, electrical and building plans, and all other plans and specifications, drawings and other similar documents, in each case relating to the Owned Real Property; (f) all rights, obligations, and duties of Seller arising out of Contracts relating to the construction of Housing Units in the Ordinary Course or otherwise listed on Section 1.1(f) of the Disclosure Schedule (other than those related to Housing Units that have been sold prior to the Closing) (collectively, the “Other Contracts” and, together with the Assigned Home Sale Contracts, the “Assigned Contracts”); (g) all Permits in the name of Seller and related to the Owned Real Property (the “Assigned Permits”); and (h) all of Seller’s rights as declarant or similar capacity under CC&Rs with respect to Associations.
Operation of the Business From the date of this Agreement until the earlier of the Closing or the termination of this Agreement, except as otherwise contemplated by this Agreement, required by Law, as set forth in Section 4.2 of the Company Disclosure Schedule or as consented to by Buyer in writing (which consent shall not be unreasonably withheld, conditioned or delayed), Shareholder will cause the Company to: (a) conduct the business of the Company in the Ordinary Course of Business; (b) use its commercially reasonable efforts to maintain the properties, physical facilities and operations of the Company in the same condition as they were on the date of this Agreement (subject to reasonable wear and tear), preserve intact the current business organization of the Company, keep available the services of the current officers and key employees of the Company, and maintain the relations and goodwill with suppliers, customers, lenders and others having material business relationships with the Company in the Ordinary Course of Business; (c) manage payables, receivables and working capital in the Ordinary Course of Business; (d) unless replaced or renewed on commercially reasonable terms with substantially similar or better coverage in the Ordinary Course of Business, continue in full force and effect without modification all insurance policies listed in Section 2.20 of the Company Disclosure Schedule; (e) comply in all material respects with all applicable Laws; (f) maintain its books and records in accordance with past practice; (g) not adopt a new plan or agreement of complete or partial liquidation, dissolution, restructuring, consolidation, recapitalization or other reorganization or like change in the Company’s capitalization other than as set forth on Section 4.12 of the Company Disclosure Schedule; (h) not waive in writing any material right of the Company, including any material write-off or compromise of accounts receivable; (i) not enter into, amend in any material respect or terminate, release, waive any rights under, or assign any rights under, any Material Contract (or Contract that, if in existence on the date of this Agreement, would constitute a Material Contract), except in the Ordinary Course of Business or as set forth on Section 4.12 of the Company Disclosure Schedule; (j) not enter into or make any capital expenditures, except capital expenditures made consistent with past practices; (k) not acquire the equity securities, or substantially all of the assets, of any entity other than as set forth on Section 4.12 of the Company Disclosure Schedule; (l) not settle or agree to settle any legal proceeding or settle any litigation or similar claim against or involving the Company with a value in excess of $250,000 or where the terms of such settlement contain any material restriction on the operation of the business of the Company following the Closing; (m) except as required under the terms of any Employee Benefit Plan existing as of the date hereof, the Company will not (i) increase in any manner the compensation or benefits of any of the current or former directors, officers, employees, consultants, independent contractors or other service providers of Company (collectively, “Company Resources”), (ii) pay any amounts or increase any amounts payable to Company Resources not required by any current plan or agreement (other than payment of base compensation in the Ordinary Course of Business) to any Company Resource, (iii) become a party to, establish, amend, commence participation in, terminate or commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation (including any Company Resource co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement or employment agreement with or for the benefit of any Company Resource (or newly hired employees), (iv) accelerate the vesting of or lapsing of restrictions with respect to any stock-based compensation or other long-term incentive compensation under any Employee Benefit Plans, (v) (x) except to the extent required pursuant to any Investment Canada Approval, hire or promote employees in the position of manager or above or (y) other than for just cause or in order to prevent a breach of this Agreement, terminate the employment of any employee in the position of manager or above, (vi) cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits under any Employee Benefit Plan, or (vii) materially change any actuarial or other assumptions used to calculate funding obligations with respect to any Employee Benefit Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by Transaction Accounting Principles or applicable Law; provided, however, the Company may pay or commit to pay bonuses in connection with the transaction contemplated hereunder to the extent such bonuses are included in Company Transaction Expenses or paid before Closing out of available Cash; (n) not fail to promptly pay and discharge current Liabilities when due, except where disputed in good faith by appropriate proceedings; (o) not forgive, cancel or defer any Indebtedness owing to the Company or waive any claims or rights of the Company other than in the Ordinary Course of Business; (p) other than the license agreement entered into in connection with the Pre-Closing Reorganization described in Section 4.12 of the Company Disclosure Schedule, not grant any license, sublicense, covenant not to xxx, or other rights under or with respect to the Company Intellectual Property except in the Ordinary Course of Business; (q) not borrow or agree to borrow any funds, whether directly or by way of assumption or guarantee or otherwise, or otherwise become liable or responsible with respect to (whether directly, contingently, or otherwise) any Indebtedness other than as set forth on Section 4.12 of the Company Disclosure Schedule; (r) not allow any of its property or assets (real, personal or mixed, tangible or
