Actions Pending Closing. (a) The parties hereto shall use their best efforts to comply with, perform and satisfy all the terms, covenants and conditions of this Agreement to be complied with, performed and satisfied by them on or before the Closing Date. In addition, the Company and the Shareholders will use their best efforts to ensure there are no material or adverse changes to employee relations at the Company. (b) The Shareholders shall cause the Company to close its permanent books and records as of the Closing Date in order to permit the Company's taxable income for the tax periods ending on the date immediately preceding the Closing Date to be reported on that date. The Shareholders shall prepare and file all federal and state income tax returns for the Company for all tax periods ending on or before the Closing Date, in a timely manner. (c) From the date hereof to the Closing Date, except to the extent Parent shall otherwise consent in writing, the Company and the Shareholders shall: (i) operate the Company's business as presently operated and only in the ordinary course and use their best efforts to preserve intact its good will, reputation and present business organization and to preserve relationships with persons having business dealings with it; (ii) maintain all of the Company's properties in good order and condition, reasonable wear and use excepted; (iii) take all steps necessary to maintain the Company's intangible assets; (iv) pay all liabilities and other obligations of the Company and collect all accounts receivable in accordance with past business practices; (v) comply with all laws applicable to the conduct of the business of the Company; (vi) not take any action which would constitute a breach of the representations and warranties contained in Article 4 of this Agreement; (vii) not enter into any settlement regarding any claim, dispute or other cause of action except for settlements of customer disputes made by the Company in the ordinary course of business; (viii) not sell or otherwise dispose of any assets of the Company; and (ix) submit all contracts which are outside the normal course of business or which involve a capital expenditure in excess of $5,000 to Parent for its approval.
Appears in 1 contract
Actions Pending Closing. (a) The parties hereto shall use their best efforts to comply with, perform and satisfy all From the terms, covenants and conditions date of this Agreement to be complied with, performed and satisfied by them on or before the Closing Date. In additionClosing, the Sellers hereby covenant and agree that, unless the prior oral or written consent of Pxxxxxx X. Xxxxxx, on behalf of Buyer, is obtained, the Sellers will not (and will not allow the Operating Company or Stellar Propane to) take any action that would result in a violation of any of the following requirements:
(a) the Business will be carried on in an ordinary manner consistent with past practice and the Sellers will use (and will cause the Operating Company and the Shareholders will use their best Stellar Propane to use) commercially reasonable efforts to ensure there preserve their present business organization intact, keep available the services of their present officers and employees and preserve their present relationships with Persons having business dealings with them, all solely as the same relates to the Business, and will not make, institute or change any methods of distribution, purchase, sale, lease, management, accounting or operation in or affecting the Business that are no material or adverse changes to employee relations at not usual and customary in the Company.industry and consistent with past practice;
(b) The Shareholders shall cause except as contemplated by the Merger and the Star/Petro Distribution and to effectuate the transactions contemplated hereby, neither the Operating Company to close its permanent books and records as nor Stellar Propane will amend or alter any of the Closing Date in order to permit the Company's taxable income for the tax periods ending on the date immediately preceding the Closing Date to be reported on that date. The Shareholders shall prepare and file all federal and state income tax returns for the Company for all tax periods ending on or before the Closing Date, in a timely manner.their respective Organizational Documents;
(c) From neither the date hereof Operating Company nor Stellar Propane will make any loan to, or enter into any business transaction of any other nature with, any officer or director of the Operating Company or Stellar Propane;
(d) neither the Operating Company nor Stellar Propane will increase or decrease the compensation payable or to become payable to any officer, or make any change in any insurance, pension or other employee benefit plan or pay any commission or bonus to any of such officers except such increases, decreases or changes as are usual and customary in the industry and consistent with past practice;
(e) neither the Operating Company nor Stellar Propane will increase or decrease the compensation payable or to become payable to any employee, or make any change in any insurance, pension or other Benefit Plan or pay any commission or bonus to any of such employees, except such increases, decreases or changes as are usual and customary in the industry and consistent with past practice, or modify the collective status of any personnel;
(f) neither the Operating Company nor Stellar Propane will make any change in the sales, credit or collection terms and conditions insofar as the same relates to the Closing DateBusiness except for such changes that are usual and customary in the industry;
(g) neither the Operating Company nor Stellar Propane will (i) incur any Indebtedness or assume, guarantee, endorse or otherwise become responsible for the Indebtedness of any other Person; (ii) sell, assign, transfer, lease or otherwise dispose of any of the material assets associated with the Business or any interest therein, except in the ordinary course of business and consistent with past practice; (iii) acquire any material assets associated with the Business or any interest therein except in the ordinary course of business and consistent with past practice; (iv) amend, alter, assign or terminate any Material Contract, or waive any rights under any Material Contract;
(h) the Sellers will not (and will not allow the Operating Company or Stellar Propane to) do any act or omit to the extent Parent shall otherwise consent in writingdo any act, the Company and the Shareholders shall:or permit any act or omission to act, that will cause a breach of any Material Contract;
(i) operate the Company's business as presently operated and only Sellers will not allow the Operating Company or Stellar Propane to make any investment of a capital nature affecting the Business in the ordinary course and use their best efforts to preserve intact its good will, reputation and present business organization and to preserve relationships with persons having business dealings with itan amount exceeding $100,000;
(iij) maintain the Sellers will not allow the Operating Company or Stellar Propane to acquire, or agree to acquire, by merger, consolidation, contribution, purchase of Equity Securities or all or substantially all of the Company's properties in good order and conditionassets or business of, reasonable wear and use exceptedany Person;
(iiik) take all steps necessary except as contemplated by the Merger, the Sellers will not allow the Operating Company or Stellar Propane to maintain the Company's intangible assetsissue or agree to issue any Equity Security;
(ivl) except with respect to the Star/Petro Distribution, after November 30, 2004, the Sellers will not allow the Operating Company or Stellar Propane to either (i) declare or pay all liabilities any dividend or other similar distribution, directly or indirectly, to any of their respective shareholders, members or partners, or (ii) make any distribution (in cash or otherwise) to their respective partners, shareholders or members or make any capital contribution to a subsidiary;
(m) the Sellers will not allow the Operating Company or Stellar Propane to permit any insurance policy naming the Operating Company or Stellar Propane as a beneficiary or a loss payable payee and other obligations relating to the assets associated with the Business to be canceled, terminated or modified or any of the coverage thereunder to lapse unless simultaneously with such termination, cancellation or modification, replacement policies providing substantially the same coverage are in full force and effect;
(n) prior to the Closing, the Sellers will cause the Operating Company and collect Stellar Propane to pay when due and consistent with past practices each of the following: (i) all trade accounts receivable payable, (ii) all payments required by any indentures, mortgages, financing agreements, loan agreements or similar agreements relating to the Business, including those listed on Schedule 5.8 and (iii) Taxes of whatever kind or nature or payments related thereto (including estimated payments and withholding remittances) relating to the Business;
(o) the Sellers will not allow the Operating Company or Stellar Propane to maintain its books, accounts and records in any manner other than the usual, regular and ordinary manner, on a basis consistent with prior years and in a business-like manner in accordance with past business practices;
(v) sound commercial practice, and will not allow the Operating Company or Stellar Propane to fail to materially comply with all laws any Laws applicable to the Operating Company or Stellar Propane and to the conduct of the business of Business or to the Companyassets associated with the Business;
(vip) the Sellers will not take any action which would constitute a breach of (and will not allow the representations and warranties contained Operating Company or Stellar Propane to) change their accounting principles or methods from those used in Article 4 of this Agreementthe Propane Business Financials except as required by GAAP or the Commission;
(viiq) not enter into any settlement regarding any claim, dispute or other cause of action except for settlements of customer disputes made by the Company in Partnership will timely file all SEC Reports and Tax Returns relating to the ordinary course of businessBusiness;
(viiir) not sell the Sellers will (and will cause the Operating Company, Stellar Propane and each Excluded Subsidiary to) at or otherwise dispose of any assets prior to the Closing terminate all of the CompanyIntercompany Agreements that Buyer desires to have terminated and will satisfy all obligations under such terminated Intercompany Agreements, with the effect of such termination to be dealt with in accordance with Section 3.3; and
(ixs) submit all contracts which are outside the normal course Sellers will not (and will not allow the Operating Company or Stellar Propane to) dissolve or enter into any plan of business liquidation or which involve a capital expenditure dissolution or similar proceeding. Nothing contained in excess this Section 8.1 or elsewhere in this Agreement will preclude the Operating Company or Stellar Propane from consummating the transactions contemplated by this Agreement or pursuing the consummation of $5,000 the Chase Refinancing Proposal and, subject to Parent for its approvalSection 8.8, consummating the Chase Refinancing Proposal.
Appears in 1 contract
Actions Pending Closing. (a) The parties hereto shall use their best efforts to comply with, perform and satisfy all the terms, covenants and conditions of this Agreement to be complied with, performed and satisfied by them on or before the Closing Date. In addition, the Company and the Shareholders will use their best efforts to ensure there are no material or adverse changes to employee relations at the Company.
(b) The Shareholders shall cause the Company to close its permanent books and records as of the Closing Date in order to permit the Company's taxable income for the tax periods ending on the date immediately preceding the Closing Date to be reported on that date. The Shareholders shall prepare and file all federal and state income tax returns for the Company for all tax periods ending on or before the Closing Date, in a timely manner.
(c) From the date hereof to the Closing DateClosing, except to as contemplated by this Agreement, United and Shareholder each hereby represent, warrant, covenant and agree that, unless the extent Parent shall otherwise prior written consent in writingof Buyer is obtained, the Company United and the Shareholders shall:
(i) operate the Company's business as presently operated and only in the ordinary course and use their best efforts to preserve intact its good will, reputation and present business organization and to preserve relationships with persons having business dealings with it;
(ii) maintain all of the Company's properties in good order and condition, reasonable wear and use excepted;
(iii) take all steps necessary to maintain the Company's intangible assets;
(iv) pay all liabilities and other obligations of the Company and collect all accounts receivable in accordance with past business practices;
(v) comply with all laws applicable to the conduct of the business of the Company;
(vi) Shareholder will not take any action which would constitute result in a breach violation of any of the representations following proscriptions:
(a) The Business will be carried on diligently and warranties contained in Article 4 the usual, regular and ordinary manner and United will use commercially reasonable best efforts to preserve its present business organization intact, keep available the services of this Agreementits present officers and employees and preserve its present relationships with Persons having business dealings with it, all solely as the same relates to the Business, and shall not make or institute any methods of manufacture, purchase, sale, lease, management, accounting or operation in or affecting the Business which are not usual and customary in the industry and consistent with United's past practices;
(viib) United will not enter into increase or decrease the compensation payable or to become payable to any settlement regarding officer or employee, or make any claimchange in any insurance, dispute pension or other cause employee benefit plan nor pay any commission or bonus to any of action such officers or employees;
(c) United will not make any change in its sales, credit or collection terms and conditions insofar as the same relates to its Business;
(d) United will not (i) incur any obligation or liability or assume, guarantee, endorse or otherwise become responsible for the liabilities or obligations of any other person (whether absolute, accrued, contingent or otherwise), except for settlements of customer disputes made by the Company normal trade or business obligations incurred in the ordinary course of business;
; (viiiii) not sell discharge or satisfy any Lien or pay any obligation or liability (whether absolute, accrued, contingent or otherwise), other than in the ordinary course of business; (iii) mortgage, pledge, create or subject to a Lien any of the Assets; (iv) contribute, assign, transfer, lease or otherwise dispose of any assets of the CompanyAssets, except in the ordinary course of business, or acquire any assets or any interest therein except in the ordinary course of business; (v) amend, terminate, waive or release any rights or cancel any debt owing to or claim by United; (vi) transfer or grant any rights under any Contracts and Other Agreements, patents, inventions, trademarks, trade names, service marks or copyrights, or registrations or licenses thereof or applications therefor, or with respect to any know-how or other proprietary or trade rights; (vii) modify or change any Material Contracts; or (viii) enter into any transaction, contract or commitment which by reason of its size or otherwise is material to the Business or financial condition or which is not in the ordinary course of the Business as now conducted;
(e) All tangible Assets of United will be used, operated, maintained and repaired in a manner consistent with past practices;
(f) United will not do any act or omit to do any act, or permit any act or omission to act, which will cause a breach by it of any Material Contract;
(g) United will not make any material capital investment, other than purchasing a Reimbursable Capital Item, which affects the Business without the prior written consent of Buyer;
(h) United will not permit any insurance policy naming it as a beneficiary or a loss payable payee and relating to the Assets or Business to be canceled, terminated or modified or any of the coverage thereunder to lapse unless simultaneously with such termination, cancellation, or modification replacement policies providing substantially the same coverage are in full force and effect;
(i) United will pay when due or otherwise in the ordinary course consistent with past practices each of the following: (i) any trade accounts payable, (ii) any payments required by any indentures, mortgages, financing agreements, loan agreements or similar agreements or (iii) taxes of whatever kind or nature or payments related thereto (including, without limitation, estimated payments and withholding remittances), unless the amount or applicability of such tax is being challenged by United; and
(ixj) submit all contracts which are outside the normal course of business or which involve United will maintain its books, accounts and records in a capital expenditure in excess of $5,000 to Parent for its approvalmanner and on a basis consistent with prior years.
Appears in 1 contract
Actions Pending Closing. (a) The parties hereto shall use their best efforts to comply with, perform and satisfy all From the terms, covenants and conditions date of this Agreement to be complied with, performed and satisfied by them on or before the Closing Date. In additionClosing, the Sellers hereby covenant and agree that, unless the prior oral or written consent of Xxxxxxx X. Xxxxxx, on behalf of Buyer, is obtained, the Sellers will not (and will not allow the Operating Company or Stellar Propane to) take any action that would result in a violation of any of the following requirements:
(a) the Business will be carried on in an ordinary manner consistent with past practice and the Sellers will use (and will cause the Operating Company and the Shareholders will use their best Stellar Propane to use) commercially reasonable efforts to ensure there preserve their present business organization intact, keep available the services of their present officers and employees and preserve their present relationships with Persons having business dealings with them, all solely as the same relates to the Business, and will not make, institute or change any methods of distribution, purchase, sale, lease, management, accounting or operation in or affecting the Business that are no material or adverse changes to employee relations at not usual and customary in the Company.industry and consistent with past practice;
(b) The Shareholders shall cause except as contemplated by the Merger and the Star/Petro Distribution and to effectuate the transactions contemplated hereby, neither the Operating Company to close its permanent books and records as nor Stellar Propane will amend or alter any of the Closing Date in order to permit the Company's taxable income for the tax periods ending on the date immediately preceding the Closing Date to be reported on that date. The Shareholders shall prepare and file all federal and state income tax returns for the Company for all tax periods ending on or before the Closing Date, in a timely manner.their respective Organizational Documents;
(c) From neither the date hereof Operating Company nor Stellar Propane will make any loan to, or enter into any business transaction of any other nature with, any officer or director of the Operating Company or Stellar Propane;
(d) neither the Operating Company nor Stellar Propane will increase or decrease the compensation payable or to become payable to any officer, or make any change in any insurance, pension or other employee benefit plan or pay any commission or bonus to any of such officers except such increases, decreases or changes as are usual and customary in the industry and consistent with past practice;
(e) neither the Operating Company nor Stellar Propane will increase or decrease the compensation payable or to become payable to any employee, or make any change in any insurance, pension or other Benefit Plan or pay any commission or bonus to any of such employees, except such increases, decreases or changes as are usual and customary in the industry and consistent with past practice, or modify the collective status of any personnel;
(f) neither the Operating Company nor Stellar Propane will make any change in the sales, credit or collection terms and conditions insofar as the same relates to the Closing DateBusiness except for such changes that are usual and customary in the industry;
(g) neither the Operating Company nor Stellar Propane will (i) incur any Indebtedness or assume, guarantee, endorse or otherwise become responsible for the Indebtedness of any other Person; (ii) sell, assign, transfer, lease or otherwise dispose of any of the material assets associated with the Business or any interest therein, except in the ordinary course of business and consistent with past practice; (iii) acquire any material assets associated with the Business or any interest therein except in the ordinary course of business and consistent with past practice; (iv) amend, alter, assign or terminate any Material Contract, or waive any rights under any Material Contract;
(h) the Sellers will not (and will not allow the Operating Company or Stellar Propane to) do any act or omit to the extent Parent shall otherwise consent in writingdo any act, the Company and the Shareholders shall:or permit any act or omission to act, that will cause a breach of any Material Contract;
(i) operate the Company's business as presently operated and only Sellers will not allow the Operating Company or Stellar Propane to make any investment of a capital nature affecting the Business in the ordinary course and use their best efforts to preserve intact its good will, reputation and present business organization and to preserve relationships with persons having business dealings with itan amount exceeding $100,000;
(iij) maintain the Sellers will not allow the Operating Company or Stellar Propane to acquire, or agree to acquire, by merger, consolidation, contribution, purchase of Equity Securities or all or substantially all of the Company's properties in good order and conditionassets or business of, reasonable wear and use exceptedany Person;
(iiik) take all steps necessary except as contemplated by the Merger, the Sellers will not allow the Operating Company or Stellar Propane to maintain the Company's intangible assetsissue or agree to issue any Equity Security;
(ivl) except with respect to the Star/Petro Distribution, after November 30, 2004, the Sellers will not allow the Operating Company or Stellar Propane to either (i) declare or pay all liabilities any dividend or other similar distribution, directly or indirectly, to any of their respective shareholders, members or partners, or (ii) make any distribution (in cash or otherwise) to their respective partners, shareholders or members or make any capital contribution to a subsidiary;
(m) the Sellers will not allow the Operating Company or Stellar Propane to permit any insurance policy naming the Operating Company or Stellar Propane as a beneficiary or a loss payable payee and other obligations relating to the assets associated with the Business to be canceled, terminated or modified or any of the coverage thereunder to lapse unless simultaneously with such termination, cancellation or modification, replacement policies providing substantially the same coverage are in full force and effect;
(n) prior to the Closing, the Sellers will cause the Operating Company and collect Stellar Propane to pay when due and consistent with past practices each of the following: (i) all trade accounts receivable payable, (ii) all payments required by any indentures, mortgages, financing agreements, loan agreements or similar agreements relating to the Business, including those listed on Schedule 5.8 and (iii) Taxes of whatever kind or nature or payments related thereto (including estimated payments and withholding remittances) relating to the Business;
(o) the Sellers will not allow the Operating Company or Stellar Propane to maintain its books, accounts and records in any manner other than the usual, regular and ordinary manner, on a basis consistent with prior years and in a business-like manner in accordance with past business practices;
(v) sound commercial practice, and will not allow the Operating Company or Stellar Propane to fail to materially comply with all laws any Laws applicable to the Operating Company or Stellar Propane and to the conduct of the business of Business or to the Companyassets associated with the Business;
(vip) the Sellers will not take any action which would constitute a breach of (and will not allow the representations and warranties contained Operating Company or Stellar Propane to) change their accounting principles or methods from those used in Article 4 of this Agreementthe Propane Business Financials except as required by GAAP or the Commission;
(viiq) not enter into any settlement regarding any claim, dispute or other cause of action except for settlements of customer disputes made by the Company in Partnership will timely file all SEC Reports and Tax Returns relating to the ordinary course of businessBusiness;
(viiir) not sell the Sellers will (and will cause the Operating Company, Stellar Propane and each Excluded Subsidiary to) at or otherwise dispose of any assets prior to the Closing terminate all of the CompanyIntercompany Agreements that Buyer desires to have terminated and will satisfy all obligations under such terminated Intercompany Agreements, with the effect of such termination to be dealt with in accordance with Section 3.3; and
(ixs) submit all contracts which are outside the normal course Sellers will not (and will not allow the Operating Company or Stellar Propane to) dissolve or enter into any plan of business liquidation or which involve a capital expenditure dissolution or similar proceeding. Nothing contained in excess this Section 8.1 or elsewhere in this Agreement will preclude the Operating Company or Stellar Propane from consummating the transactions contemplated by this Agreement or pursuing the consummation of $5,000 the Chase Refinancing Proposal and, subject to Parent for its approvalSection 8.8, consummating the Chase Refinancing Proposal.
Appears in 1 contract
Actions Pending Closing. Except as otherwise contemplated by this ----------------------- Agreement and as Buyer may otherwise consent, pending the Closing:
(a) The parties hereto Seller shall use their best efforts to comply with, perform conduct and satisfy all carry on the terms, covenants and conditions business of this Agreement to be complied with, performed and satisfied by them on or before the Closing Date. In addition, Division in the Company and the Shareholders will use their best efforts to ensure there are no material or adverse changes to employee relations at the Company.ordinary course consistent with past practice;
(b) The Shareholders Seller shall cause use reasonable efforts to preserve the Company to close its permanent books Subject Assets and records as of the Closing Date in order to permit Division's relationships with employees, customers, suppliers and others having business relationships with the Company's taxable income for the tax periods ending on the date immediately preceding the Closing Date to be reported on that date. The Shareholders shall prepare and file all federal and state income tax returns for the Company for all tax periods ending on or before the Closing Date, in a timely manner.Division;
(c) From Seller shall not sell, lease, mortgage, pledge or otherwise acquire or dispose of any material amount of assets or properties used in connection with the date hereof to the Closing Date, Division except to the extent Parent shall otherwise consent in writing, the Company and the Shareholders shall:
(i) operate the Company's business as presently operated and only in the ordinary course and use their best efforts to preserve intact its good will, reputation and present business organization and to preserve relationships with persons having business dealings with it;
(ii) maintain all of the Company's properties in good order and condition, reasonable wear and use excepted;
(iii) take all steps necessary to maintain the Company's intangible assets;
(iv) pay all liabilities and other obligations of the Company and collect all accounts receivable in accordance with past business practices;
(v) comply with all laws applicable to the conduct of the business of the Company;
(vi) not take any action which would constitute a breach of the representations and warranties contained in Article 4 of this Agreement;
(vii) not enter into any settlement regarding any claim, dispute or other cause of action except for settlements of customer disputes made by the Company in the ordinary course of business;
(viiid) Except as may be required by the Significant Contracts listed on Schedule 3.10 and except for increases or changes in the ordinary course of business consistent with past practice, Seller shall not sell increase or otherwise dispose of any assets change the rate or nature of the Companycompensation (including, without limitation, wages, salaries, bonuses and other benefits) paid or payable to any employee of the Division;
(e) Seller shall not enter into, or become obligated under, any contract, agreement, commitment, arrangement or plan with respect to the Division except in the ordinary course of business or as contemplated by this Agreement;
(f) Except for changes occurring through performance in the ordinary course of business, Seller shall not change, amend, terminate or otherwise modify any of the Significant Contracts listed in Schedule 3.10; and
(ixg) submit Seller shall use reasonable efforts to maintain in full force and effect policies of insurance of the same type, character and coverage as the policies of insurance relating to the Division in effect on the date of this Agreement and shall give Buyer prompt written notice of any and all contracts which are outside changes that may occur between the normal course of business date hereof and the Closing Date with respect to the insurance coverages thereunder, provided that Seller shall not be obligated to maintain any insurance with respect to the Subject Assets or which involve a capital expenditure in excess of $5,000 to Parent for its approvalthe Division after the Closing.
Appears in 1 contract
Actions Pending Closing. (a) The parties hereto shall use their best efforts to comply with, perform and satisfy all the terms, covenants and conditions of this Agreement to be complied with, performed and satisfied by them on or before the Closing Date. In addition, the Company and the Shareholders will use their best efforts to ensure there are no material or adverse changes to employee relations at the Company.
(b) The Shareholders shall cause the Company to close its permanent books and records as of the Closing Date in order to permit the Company's taxable income for the tax periods ending on the date immediately preceding the Closing Date to be reported on that date. The Shareholders shall prepare and file all federal and state income tax returns for the Company for all tax periods ending on or before the Closing Date, in a timely manner.
(c) From the date hereof to the Closing DateClosing, except to as ----------------------- contemplated by this Agreement, SELLER and each Shareholder hereby represents, warrants, covenants and agrees that, unless the extent Parent shall otherwise prior written consent in writingof BUYER is obtained, the Company and the Shareholders shall:
(i) operate the Company's business as presently operated and only in the ordinary course and use their best efforts to preserve intact its good will, reputation and present business organization and to preserve relationships with persons having business dealings with it;
(ii) maintain all of the Company's properties in good order and condition, reasonable wear and use excepted;
(iii) take all steps necessary to maintain the Company's intangible assets;
(iv) pay all liabilities and other obligations of the Company and collect all accounts receivable in accordance with past business practices;
(v) comply with all laws applicable to the conduct of the business of the Company;
(vi) SELLER will not take any action which would constitute result in a breach violation of any of the representations following proscriptions:
(a) The Business of SELLER will be carried on diligently and warranties contained in Article 4 the usual, regular and ordinary manner and SELLER will use its best efforts to preserve its present business organization intact, keep available the services of this Agreementits present officers and employees and preserve its present relationships with Persons having business dealings with it, all solely as the same relates to the Business, and shall not make or institute any methods of manufacture, purchase, sale, lease, management, accounting or operation in or affecting the Business which are not usual and customary in the industry and consistent with SELLER's past practices;
(viib) SELLER will not enter into increase or decrease the compensation payable or to become payable to any settlement regarding officer or employee, or make any claimchange in any insurance, dispute pension or other cause employee benefit plan nor pay any commission or bonus to any of action such officers or employees other than increases and bonuses in the normal course of business, consistent with past practices and not exceeding in any one (1) case an aggregate increase and bonus of more than five percent (5%) of such Person's compensation;
(c) SELLER will not make any change in its sales, credit or collection terms and conditions insofar as the same relates to its Business;
(d) SELLER will not, with respect to its Business, (i) incur any obligation or liability or assume, guarantee, endorse or otherwise become responsible for the liabilities or obligations of any other person (whether absolute, accrued, contingent or otherwise), except for settlements of customer disputes made by the Company normal trade or business obligations incurred in the ordinary course of business;
; (viiiii) not sell discharge or satisfy any Lien or pay any obligation or liability (whether absolute, accrued, contingent or otherwise), other than in the ordinary course of business; (iii) mortgage, pledge, create or subject to a Lien any of its Assets; (iv) sell, assign, transfer, lease or otherwise dispose of any of its Assets, except in the ordinary course of business, or acquire any assets or any interest therein except in the ordinary course of business; (v) amend, terminate, waive or release any rights or cancel any debt owing to or claim by SELLER; (vi) transfer or grant any rights under any Contracts and Other Agreements, patents, inventions, trademarks, trade names, service marks or copyrights, or registrations or licenses thereof or applications therefor, or with respect to any know-how or other proprietary or trade rights; (vii) modify or change any Material Contracts; or (viii) enter into any transaction, contract or commitment which by reason of its size or otherwise is material to its Business or financial condition or which is not in the ordinary course of SELLER's Business as now conducted;
(e) All tangible Assets of SELLER will be used, operated, maintained and repaired in a careful and efficient manner;
(f) SELLER will not do any act or omit to do any act, or permit any act or omission to act, which will cause a breach of any Material Contract;
(g) SELLER will not make any investment of a capital nature affecting its Business without the prior written consent of BUYER;
(h) SELLER will not permit any insurance policy naming it as a beneficiary or a loss payable payee and relating to its Assets or Business to be canceled, terminated or modified or any of the Company; andcoverage thereunder to lapse unless simultaneously with such termination or cancellation, replacement policies providing substantially the same coverage are in full force and effect;
(ixi) submit SELLER will not fail to pay when due any of the following insofar as they relate to its Business: (i) any trade accounts payable, (ii) any payments required by any indentures, mortgages, financing agreements, loan agreements or similar agreements or (iii) taxes of whatever kind or nature or payments related thereto (including, without limitation, estimated payments and withholding remittances);
(j) SELLER will not, insofar as the same relates to its Business, maintain its books, accounts and records in any manner other than the usual, regular and ordinary manner, on a basis consistent with prior years and in a business- like manner in accordance with sound commercial practice, and will not fail to comply with any laws applicable to SELLER and to the conduct of its Business or to its Assets;
(k) SELLER will not enter into any transaction or make any agreement or commitment, and will take all contracts such action or refrain from taking any action, and will not permit any event to occur, in each case which are outside would result in any of its representations, warranties or covenants contained in this Agreement not being true and correct at and as of the normal course of business or which involve a capital expenditure in excess of $5,000 to Parent for its approvalClosing Date.
Appears in 1 contract
Actions Pending Closing. Except as set forth in Disclosure Schedule 5.4, during the period commencing on the Execution Date and ending on the earlier of the Closing Date or the termination of this Agreement pursuant to its terms, unless Buyer shall otherwise consent in advance in writing (such consent not to be unreasonably withheld, conditioned or delayed), and except for actions which are required by Law or required under the terms of any Material Contract to which Seller or a ProjectCo is a party, Seller shall or shall cause each ProjectCo to:
(a) The parties hereto shall use their best efforts to comply withnot make any change in the Organizational Documents of a ProjectCo or purchase, perform and satisfy all the termsredeem or issue any membership interest of a ProjectCo (or securities exchangeable, covenants and conditions convertible or exercisable for a membership interest of this Agreement to be complied with, performed and satisfied by them on or before the Closing Date. In addition, the Company and the Shareholders will use their best efforts to ensure there are no material or adverse changes to employee relations at the Company.a ProjectCo);
(b) The Shareholders shall cause not fail to maintain its existence or consolidate, not merge any ProjectCo with any other Person and, with respect to the Company to close its permanent books and records as ProjectCos only, not acquire all or substantially all of the Closing Date in order to permit the Company's taxable income for the tax periods ending on the date immediately preceding the Closing Date to be reported on that date. The Shareholders shall prepare and file all federal and state income tax returns for the Company for all tax periods ending on or before the Closing Date, in a timely manner.assets of any other Person;
(c) From not transfer any of the date hereof Membership Interests to any Person or create or suffer to exist any Lien (other than Permitted Equity Liens) upon the Closing Date, except to the extent Parent shall otherwise consent in writing, the Company and the Shareholders shall:Membership Interests;
(id) operate not make any material change in the Company's conduct of such ProjectCo’s business as presently operated and to conduct its business only in the ordinary course and of business, consistent with past practices;
(e) use their best efforts Commercially Reasonable Efforts to (i) preserve intact its good will, reputation and the present business organization and to preserve relationships with persons having business dealings with it;
reputation of such ProjectCo; (ii) maintain all of the Company's properties its Project in good order and conditionaccordance with Prudent Industry Practices, reasonable ordinary wear and use tear excepted; (iii) maintain the good will of power purchasers, suppliers, lenders, Governmental Authorities and other Persons with whom such ProjectCo otherwise has significant business relationships; and (iv) maintain the Permits and Environmental Permits listed on Disclosure Schedule 3.10 and Disclosure Schedule 3.12(d), respectively;
(iiif) take all steps necessary to maintain its Records in the Company's intangible assets;
(iv) pay all liabilities and other obligations ordinary course of the Company and collect all accounts receivable in accordance business, consistent with past business practices;
(vg) maintain in full force and effect until the Closing substantially the same levels of insurance coverage as, and other terms of coverage with respect to, the insurance afforded in the policies of Seller as of the Execution Date;
(h) not hire any employees or establish any Benefit Plan or collective bargaining relationship;
(i) not assign, terminate or amend in any material respect any Material Contract or enter into any Contract that would be deemed to be a Material Contract if in effect prior to the date hereof;
(j) use Commercially Reasonable Efforts to comply with all laws applicable Laws;
(k) not (i) make or change any material Tax election or Tax accounting method or settle or compromise any Tax liability other than in the ordinary course of business consistent with past practices, (ii) change its fiscal year or (iii) fail to pay any Taxes as such Taxes become due and payable;
(l) hire any individual who would be an employee of any ProjectCo or Project or establish, become obligated under, sponsor or maintain any Employee Benefit Plan;
(m) refrain from: (i) acquiring or disposing of any material assets owned by or used or held for use in the conduct of the business of the Company;
(vi) not take any action which would constitute a breach of the representations and warranties contained in Article 4 of this Agreement;
(vii) not enter into any settlement regarding any claim, dispute or such ProjectCo other cause of action except for settlements of customer disputes made by the Company than in the ordinary course of business;
business consistent with past practice and other acquisitions or dispositions not exceeding in either case $100,000 in the aggregate, (viiiii) not sell creating or incurring any Lien, other than a Permitted Lien, on its business or any of its assets (subject to Section 5.4(c)); (iii) granting any waiver under or giving any consent with respect to any Material Contract or any Permit; (iv) materially violating, breaching or defaulting under, or taking or failing to take any action that (with or without notice or lapse of time or both) would constitute a material violation, breach or default under, any term or provision of any Material Contract or any Permit (in each case, notwithstanding the seeking or receipt of any consent or waiver); (v) making capital expenditures or commitments for additions to property, plant or equipment constituting capital assets exceeding $100,000 in the aggregate; (vi) with respect to the ProjectCos only, acquiring securities of any other Person; or (vii) issuing, redeeming, acquiring, delivering, selling, pledging, disposing of or otherwise dispose subjecting to any Lien, any Membership Interests of any assets ProjectCo or any other voting securities or equity equivalent of the Companyany ProjectCo; and
(ixn) submit all contracts which are outside refrain from entering into any agreement to do or engage in any of the normal course of business or which involve a capital expenditure in excess of $5,000 to Parent for its approvalforegoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (New Jersey Resources Corp)
Actions Pending Closing. (a) The parties hereto shall use their best efforts During the Study Period and prior to comply withClosing, perform Seller undertakes and satisfy all the terms, hereby covenants and conditions of this Agreement to be complied with, performed and satisfied by them on or before the Closing Date. In addition, the Company and the Shareholders will use their best efforts to ensure there are no material or adverse changes to employee relations at the Company.
(b) The Shareholders shall cause the Company to close its permanent books and records agrees as of the Closing Date in order to permit the Company's taxable income for the tax periods ending on the date immediately preceding the Closing Date to be reported on that date. The Shareholders shall prepare and file all federal and state income tax returns for the Company for all tax periods ending on or before the Closing Date, in a timely manner.
(c) From the date hereof to the Closing Date, except to the extent Parent shall otherwise consent in writing, the Company and the Shareholders shallfollows:
(i) operate It will not enter into or modify any lease or any of the Company's business other Contracts (as presently operated and only defined herein) with respect to the Properties, or make any commitment or enter into any contract, without the prior written consent of Purchaser, except for those leases, commitments or Contracts which are entered into in the ordinary course of business and use their best efforts for a duration of one (1) year or less and which, except with respect to preserve intact its good willresident leases, reputation and present business organization and to preserve relationships can be terminated with persons having business dealings with itthirty (30) days' notice;
(ii) Seller will maintain all of the Company's properties Real Property and the Personal Property in good order and substantially their present condition, reasonable except for ordinary wear and tear, damage or casualty as set forth in Paragraph 12 hereinbelow, and the use exceptedand consumption of inventory and other items of Personal Property at customary levels;
(iii) take Seller will not sell or dispose of, or cause to be sold or disposed of, all steps necessary to maintain the Company's intangible assets;
(iv) pay all liabilities and other obligations or any portion of the Company and collect all accounts receivable in accordance with past business practices;
(v) comply with all laws applicable to Real Property or the conduct of the business of the Company;
(vi) not take any action which would constitute a breach of the representations and warranties contained in Article 4 of this Agreement;
(vii) not enter into any settlement regarding any claim, dispute or Personal Property other cause of action except for settlements of customer disputes made by the Company than in the ordinary course of business;
(viiiiv) not sell or otherwise dispose Immediately after the execution of any assets this Agreement by all parties, Seller shall cooperate reasonably with Purchaser to obtain consents of governmental officials and others regarding acquisition by Purchaser of necessary licenses and permits, and the Companyapprovals of MHFA and HUD, and Seller shall have the right to have a representative present at all meetings and on all substantive telephone calls with such governmental officials and representatives of MHFA, HUD and EOEA;
(v) Seller shall conduct its business pending the Closing only in the ordinary and usual course of business consistent with past practice; and
(ixvi) submit all contracts which are outside No Seller will enter into a purchase and sale agreement for the normal course sale of business or which involve a capital expenditure in excess any of $5,000 to Parent for its approvalthe Properties during the pendency of this Agreement; provided, however, that Seller may discuss the potential sale of any of the Properties with third parties.
Appears in 1 contract
