Common use of Existing Condition Clause in Contracts

Existing Condition. Except as disclosed on Schedule 4.8 hereto, since December 31, 2014, the Company has been operated in the ordinary course of business consistent with past practice and the Company has not: (a) sold, assigned or transferred any of its material assets or properties except in the ordinary course of its business consistent with past practice; (b) made or suffered any amendment to or termination of any contract that would be required to be disclosed on Schedule 4.15 hereto; (c) made or committed to make any capital expenditures in excess of $US 15,000 individually or $US 50,000 in the aggregate; (d) paid any bonuses or committed to pay any bonuses; (e) declared, made, paid or otherwise become committed to make or pay any dividend or other distribution in favor of any of the Sellers in respect of his, her or its capital stock or membership interests; (f) redeemed, purchased or otherwise acquired any of its membership interests or capital stock; (g) hired any new employees or made any offers of employment to any person at a base salary in excess of $US 150,000; (h) created, incurred, assumed or guaranteed any indebtedness for money borrowed or incurred any other liabilities exceeding $US 100,000 in the aggregate except for current liabilities incurred consistent with past practice; (i) suffered any damage, destruction or loss, whether or not covered by insurance, (i) materially and adversely affecting its business, results of operations, assets, liabilities or financial condition or (ii) of any item carried on its books of account at more than $US 10,000; (j) made any material, long-term commitments with respect to the Company or its business other than in the ordinary course of business consistent with past practice in excess of $US 100,000; (k) suffered any Company Material Adverse Effect; or (l) entered into any transaction other than in the ordinary course of its business consistent with past practice.

Existing Condition. Except as disclosed on Schedule 4.8 3.11 hereto, since December 31June 30, 20142006, the Company has been operated in the ordinary course of business consistent with past practice and the Company has not: (a) sold, assigned or transferred any of its material assets or properties except in the ordinary course of its business consistent with past practice; (b) made or suffered any amendment to or termination of any contract that would be required to be disclosed on Schedule 4.15 hereto; (c) made or committed to make any capital expenditures in excess of $US 15,000 25,000 individually or $US 50,000 100,000 in the aggregate; (dc) paid any bonuses paid, or committed to pay pay, any bonuses, incentive compensation or other similar payments; (ed) declared, made, paid or otherwise become committed to make or pay any dividend or other distribution in favor of any of the Sellers in respect of his, her or its capital stock or membership interestsphantom stock, except for distributions to the Seller's Trust of amounts reasonably required to cover the estimated income taxes of the Seller's Trust on income earned by the Company (all of which distributions are listed on Schedule 3.11 hereto); (f) redeemed, purchased or otherwise acquired any of its membership interests or capital stock; (ge) hired any new employees or made any offers of employment to any person at a base salary in excess of $US 150,000person, except for persons as were either hired or offered employment on an at-will basis; (hf) created, incurred, assumed or guaranteed any indebtedness for money borrowed or incurred any other liabilities exceeding $US 100,000 25,000 in the aggregate except for current liabilities incurred consistent with past practice; (ig) suffered any damage, destruction or loss, whether or not covered by insurance, (i) materially and adversely affecting its business, results of operations, assets, liabilities or financial condition or (ii) of any item carried on its books of account at more than $US 10,00025,000; (jh) made any material, long-term commitments with respect to the Company or its business other than in the ordinary course of business consistent with past practice in excess of $US 100,000practice; (ki) suffered any Company Material Adverse Effectmaterial adverse change in its business, results of operations, assets, liabilities or financial condition; (j) 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 directors, officers or employees, or to either Seller, or made any increase in, or any addition to, other benefits to which any of its directors, officers or employees or either Seller may be entitled; or (lk) entered into any transaction other than in the ordinary course of its business consistent with past practice. Except as disclosed on Schedule 3.11 hereto, since June 30, 2006, the Company has not made or suffered any amendment to or termination of any material contract or commitment to which it is or was a party or by which it or any of its properties are or were bound.

Existing Condition. Except as disclosed on Schedule 4.8 hereto, since December Since October 31, 20141995, the Company with ------------------ respect to the Business has been operated not: (a) sold, encumbered, assigned or transferred any assets or properties, except for the sale of inventory in the ordinary course of business consistent with past practice and the Company has not: (a) sold, assigned or transferred any transfer of its material assets or properties except the Vehicles to Sellers as provided in the ordinary course of its business consistent with past practiceSection 1.2.3; (b) made or suffered any amendment to or termination of any contract that would be required to be disclosed on Schedule 4.15 hereto; (c) made or committed to make any capital expenditures in excess of $US 15,000 individually or $US 50,000 in the aggregate; (d) paid any bonuses or committed to pay any bonuses; (e) declared, made, paid or otherwise become committed to make or pay any dividend or other distribution in favor of any of the Sellers in respect of his, her or its capital stock or membership interests; (f) redeemed, purchased or otherwise acquired any of its membership interests or capital stock; (g) hired any new employees or made any offers of employment to any person at a base salary in excess of $US 150,000; (h) created, incurred, assumed or guaranteed any indebtedness for money borrowed borrowed, or incurred mortgaged, pledged or subjected any of its assets to any mortgage, lien, pledge, security interest, conditional sales contract or other liabilities exceeding $US 100,000 in the aggregate encumbrance of any nature whatsoever, except for current liabilities incurred consistent with past practicePermitted Liens (hereinafter defined in Section 3.1.8); (ic) made or suffered any amendment or termination of any material agreement, contract, commitment, lease or plan to which it is a party or by which it is bound, or cancelled, modified or waived any substantial debts or claims held by it or waived any rights of substantial value, whether or not in the ordinary course of business; (d) declared or made, or agreed to declare or make, any dividend payments or distribution of its assets of any kind to Shareholders (except as provided in Section 1.2.3); (e) except in accordance with normal and usual practice, increased the rate of compensation payable to any of its employees; (f) suffered any damage, destruction or loss, whether or not covered by insurance, (i) materially and adversely affecting its businessthe Business, results of operations, assets, liabilities properties or financial condition prospects or (ii) of any item or items carried on its the Company's books of account individually or in the aggregate at more than $US 10,0001,000, or suffered any repeated, recurring or prolonged shortage, cessation or interruption of supplies or utility or other services required to conduct its business and operations; (j) made any material, long-term commitments with respect to the Company or its business other than in the ordinary course of business consistent with past practice in excess of $US 100,000; (kg) suffered any Company Material Adverse Effectmaterial adverse change in its business, operations, assets, properties, prospects or condition (financial or otherwise); orand (lh) entered into incurred or allowed a release or spill of any transaction Hazardous Substances, as hereafter defined, on any property owned by the Company; nor is any release of a Hazardous Substance threatened on, at, from, or near any property owned or operated by the Company. Hazardous Substances means, without limitation, any explosives, asbestos, petroleum and petroleum products, zinc and any other than in the ordinary course of its business consistent with past practicehazardous materials and hazardous wastes.

Existing Condition. Except as disclosed on Schedule 4.8 hereto, since Since December 31, 20141998, except as set ------------------ forth in SCHEDULE 3.1.8, Seller with respect to the Company Business has been operated not: (a) incurred any actual or contingent liabilities included in the Assumed Liabilities, other than liabilities incurred in the ordinary course of business consistent with past practice and the Company has not: (a) soldpractice, assigned or transferred discharged or satisfied any of its material assets lien or properties except encumbrance or paid any liabilities, other than in the ordinary course of its business consistent with past practice, or failed to pay or discharge any liabilities, other than in the ordinary course of business consistent with past practice; (b) made sold, encumbered, assigned or suffered transferred any amendment to material assets or termination properties which would have been included in the Assets if the Closing had been held on the Balance Sheet Date or on any date since then, except for the sale of any contract that would be required to be disclosed on Schedule 4.15 heretoinventory in the ordinary course of business consistent with past practice; (c) made or committed to make any capital expenditures in excess of $US 15,000 individually or $US 50,000 in the aggregate; (d) paid any bonuses or committed to pay any bonuses; (e) declared, made, paid or otherwise become committed to make or pay any dividend or other distribution in favor of any of the Sellers in respect of his, her or its capital stock or membership interests; (f) redeemed, purchased or otherwise acquired any of its membership interests or capital stock; (g) hired any new employees or made any offers of employment to any person at a base salary in excess of $US 150,000; (h) created, incurred, assumed or guaranteed any indebtedness for money borrowed borrowed, or incurred mortgaged, pledged or subjected any of its Assets to any mortgage, lien, pledge, security interest, conditional sales contract or other liabilities exceeding $US 100,000 in the aggregate except for current liabilities incurred consistent with past practiceencumbrance of any nature whatsoever; (id) made or suffered any material amendment to any Assigned Contract or termination of any material Contract to which it is a party or by which it is bound which, in the absence of termination, would have been an Assigned Contract, or canceled, modified or waived any substantial rights under any Assigned Contract, whether or not in the ordinary course of business; (e) suffered any damage, destruction or loss, whether or not covered by insurance, (i) materially and adversely affecting its businessthe Business, results of operations, assets, liabilities or financial condition or (ii) of any item or items carried on its books of account individually or in the aggregate at more than $US 10,00012,000; or suffered any repeated, recurring or prolonged shortage, cessation or interruption of supplies or utility or other services required to conduct its business and operations; (f) suffered any changes in its business, operations, assets, properties or condition (financial or otherwise) which have been either individually or in the aggregate materially adverse, excluding however (i) any decrease in revenues or increase in expenses on a month to month basis, (ii) any increase in rent in respect of the Premises requested by the lessor in accordance with the Lease, and (iii) any condition described in the Schedules to this Agreement, including, without limitation, SCHEDULE 3.1.16; (g) made any material change in the customary methods used in operating the Business (including its marketing, selling and pricing practices and policies); (h) made commitments or agreements for capital expenditures or capital additions or betterments exceeding in the aggregate $12,000; (i) except as set forth in Schedule 3.1.15, increased the salaries or other compensation of, or made any advance or loan to, any of its employees or made any increase in, or any addition to, other benefits to which any of its employees may be entitled other than in the ordinary course of business; (j) made changed any material, long-term commitments with respect to of the Company accounting principles followed by it or its business the methods of applying such principles; (k) entered into any material transaction other than in the ordinary course of business consistent with past practice in excess of $US 100,000; (k) suffered any Company Material Adverse Effectpractice; or (l) entered into agreed, whether in writing or otherwise, to take any transaction other than of the actions set forth in the ordinary course of its business consistent with past practicethis Section 3.1.8.

Existing Condition. Except as disclosed on Schedule 4.8 heretoDuring the 12-month period preceding the Closing Date, since December 31, 2014, neither Seller nor Seller Stockholder has (i) entered into any transaction affecting the Company has been operated in Business or the ordinary course of business consistent with past practice and the Company has not: (a) sold, assigned or transferred any of its material assets or properties Assets except in the ordinary course of its business business, consistent with past practice; ; (bii) encumbered or transferred any assets which would have been included in the Assets if the Closing had been held on November 30, 1996 or on any date since then except in the ordinary course of business, consistent with past practice; (iii) subjected any of the Assets to any lien or other encumbrance of any nature whatsoever, except in the ordinary course of business, consistent with past practice, and except for Permitted Liens (defined in Section 3.1(i)); (iv) made or suffered any amendment to or termination of any contract that would be required to be disclosed on Schedule 4.15 hereto; (c) made material agreement affecting the Business or committed to make the Assets, or canceled, modified or waived any capital expenditures in excess rights of $US 15,000 individually substantial value affecting the Business or $US 50,000 the Assets, whether or not in the aggregate; ordinary course of business; (dv) paid changed any bonuses of the accounting principles followed by it or committed to pay any bonuses; the methods of applying such principles; (evi) declared, made, paid or otherwise become committed to make or pay any dividend or other distribution in favor increased the compensation of any of the Sellers in respect of his, her or its capital stock or membership interests; Affected Employees (fas hereinafter defined) redeemed, purchased or otherwise acquired any of its membership interests or capital stock; (g) hired any new employees or made any offers of employment to any person at a base salary in excess of $US 150,000; (h) created, incurred, assumed or guaranteed any indebtedness for money borrowed or incurred any other liabilities exceeding $US 100,000 than in the aggregate except for current liabilities incurred consistent with past practice; ordinary course of business; or (ivii) suffered any damage, destruction or loss, whether or not covered by insurance, (ia) materially and adversely affecting its business, results of operations, assets, liabilities the Business or financial condition Assets or (iib) of any item carried on its books items if such loss individually represents a loss of account at $10,000 or more than individually or $US 10,000; (j) made any material, long-term commitments with respect to the Company 100,000 or its business other than more in the ordinary course of business consistent with past practice in excess of $US 100,000; (k) suffered any Company Material Adverse Effect; or (l) entered into any transaction other than in the ordinary course of its business consistent with past practiceaggregate.

Existing Condition. Except as disclosed set forth on Schedule 4.8 SCHEDULE 3.1.11 attached hereto, 14 since December 31Year-End, 2014Sellers have not, with respect to the Company Business: (a) incurred any liabilities or discharged or satisfied any liabilities other than in the ordinary course of business consistent with past practice, or failed to pay or discharge any liabilities, which failure has caused, or will cause, any material damage or risk of material loss to the Business or any of the Assets; (b) sold, transferred or otherwise disposed of any assets or properties which would have been operated included in the Assets if the Closing had been held at Year-End or on any date since then, except for (i) such assets or properties as have been used or consumed in the ordinary course of business, (ii) the sale of inventory in the ordinary course of business consistent with past practice and (iii) the Company has not: (a) sold, assigned or transferred disposition of any of its material such assets or properties except (x) which were obsolete and immaterial in value and (y) which has otherwise been fully reflected in the ordinary course of its business consistent with past practice; (b) made or suffered any amendment to or termination of any contract that would be required to be disclosed on Schedule 4.15 hereto; (c) made or committed to make any capital expenditures in excess of $US 15,000 individually or $US 50,000 in the aggregate; (d) paid any bonuses or committed to pay any bonuses; (e) declared, made, paid or otherwise become committed to make or pay any dividend or other distribution in favor of any of the Sellers in respect of his, her or its capital stock or membership interests; (f) redeemed, purchased or otherwise acquired any of its membership interests or capital stock; (g) hired any new employees or made any offers of employment to any person at a base salary in excess of $US 150,000; (h) created, incurred, assumed or guaranteed any indebtedness for money borrowed or incurred any other liabilities exceeding $US 100,000 in the aggregate except for current liabilities incurred consistent with past practiceAdjusted August Balance Sheet; (i) suffered any damage, destruction or loss, whether or not covered by insurance, (ix) materially and adversely affecting its business, results of operations, assets, liabilities the Business or financial condition Assets or (iiy) of any item or items carried on its books of account individually or in the aggregate at more than $US 10,00050,000.00, or (ii) suffered any repeated, recurring or prolonged shortage, cessation or interruption of supplies or utility or other services required to conduct the Business; (jd) suffered any material adverse change in its business, operations, assets, properties, prospects or condition (financial or otherwise); (i) made any materialadvance (excluding advances for ordinary and necessary business expenses) or loan to, long-term commitments with respect to the Company any of its employees or its business (ii) other than in the ordinary course of business consistent with past practice in excess practice, increased the salaries or other compensation payable to, or made any increase in, or any addition to, other benefits provided to, any of $US 100,000its employees; (kf) suffered changed any Company Material Adverse Effectof the accounting principles followed by it, or the methods of applying such principles, in any material respect; or (lg) entered into any transaction other than in the ordinary course of its business consistent with past practice.

Existing Condition. Except as disclosed provided on Schedule 4.8 hereto3.1.11, since December 31June 30, 20141999, Zipp has not: (a) incurred any Liabilities, other than Liabilities incurred in the Company has been operated ordinary course of business, consistent with past practice, or discharged or satisfied any lien or encumbrance, or paid any Liabilities, other than in the ordinary course of business consistent with past practice and practice, or failed to pay or discharge when due any Liabilities of which the Company failure to pay or discharge has not:caused or will cause any material damage or risk of material loss to it or any of its assets or properties; (ab) sold, encumbered, assigned or transferred any of its material assets or properties which would have been included in the Assets if the Closing had been held on June 30, 1999, except for the sale, use or consumption of assets in the ordinary course of its business consistent with past practice; (b) made or suffered any amendment to or termination of any contract that would be required to be disclosed on Schedule 4.15 hereto; (c) made or committed to make any capital expenditures in excess of $US 15,000 individually or $US 50,000 in the aggregate; (d) paid any bonuses or committed to pay any bonuses; (e) declared, made, paid or otherwise become committed to make or pay any dividend or other distribution in favor of any of the Sellers in respect of his, her or its capital stock or membership interests; (f) redeemed, purchased or otherwise acquired any of its membership interests or capital stock; (g) hired any new employees or made any offers of employment to any person at a base salary in excess of $US 150,000; (h) created, incurred, assumed or guaranteed any indebtedness for money borrowed borrowed, or incurred mortgaged, pledged or subjected any of the Assets to any mortgage, lien, pledge, security interest, conditional sales contract or other liabilities exceeding $US 100,000 in the aggregate encumbrance of any nature whatsoever, except for current liabilities incurred consistent with past practiceany Liens specifically permitted under this Agreement ("Permitted Liens"); (id) suffered any damage, destruction or loss, whether or not covered by insurance, (i) materially and adversely affecting its business, results of operations, assets, liabilities properties or financial condition prospects or (ii) of any item or items carried on its books of account individually or in the aggregate at more than $US 10,00050,000.00, or suffered any repeated, recurring or prolonged shortage, cessation or interruption of supplies or utility or other services required to conduct its business and operations; (je) made suffered any materialmaterial adverse change in its business, long-term commitments with respect to the Company operations, assets, properties, prospects or its business other than in the ordinary course of business consistent with past practice in excess of $US 100,000condition (financial or otherwise); (kf) suffered received notice or had knowledge of any Company Material Adverse Effectactual or threatened labor trouble, strike or other occurrence, event or condition of any similar character which has had or might have an adverse effect on its business, operations, assets, properties or prospects; (g) made commitments or agreements for capital expenditures or capital additions or betterments exceeding in the aggregate $800,000.00 except such as may be involved in ordinary repair, maintenance or replacement of its assets; (h) 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 employees or made any increase in, or any addition to, other benefits to which any of its employees may be entitled; (i) changed any of the accounting principles followed by it or the methods of applying such principles; or (lj) entered into any transaction other than in the ordinary course of its business consistent with past practice.