Actions Pending the Closing. (a) Except (1) as required by applicable Law or by order of the Bankruptcy Court, (2) as otherwise expressly contemplated by this Agreement, or (3) with the prior written consent of Purchaser, during the period from the date of this Agreement to and through the Closing Date, Sellers will: (i) maintain the Purchased Assets in their current condition, ordinary wear and tear excepted; (ii) take reasonable actions to defend and protect the Purchased Assets from infringement or usurpation; and (iii) comply with applicable Laws, including Environmental Laws, other than with respect to the failure of such compliance as would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect. (b) Except (1) as required by applicable Law or by order of the Bankruptcy Court, (2) as otherwise contemplated by this Agreement, or (3) with the prior written consent of Purchaser, during the period from the date of this Agreement to and through the Closing Date, Sellers will not in connection with the Business: (i) subject any of the Purchased Assets to any Lien (except for Permitted Exceptions); (ii) assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for the purpose of disposing of obsolete assets); (iii) enter into any Contract for the sale of any Owned Real Property; (iv) terminate, amend, restate, supplement or waive any rights under any Purchased Contract; or (v) agree to do anything prohibited by this Section 8.2(b). (c) Sellers will promptly notify Purchaser of: (i) any notice or other written communication from any Person alleging that the consent of such Person is or may be required in connection with the consummation of the transactions contemplated by this Agreement; and (ii) the commencement of any material Legal Proceedings relating to the Business or the Purchased Assets; provided, however, that the delivery of any notice pursuant to this Section 8.2(c) will not (x) limit or otherwise affect any remedies available to Purchaser, or (y) be deemed to amend or supplement any Schedule or prevent or cure any misrepresentations or breach of warranty.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Flowers Foods Inc)
Actions Pending the Closing. (a) Except (1) as required by applicable Law or by order of From the Bankruptcy Courtdate hereof until the Closing Date, (2) and except as otherwise expressly contemplated provided for by this Agreement, or consented to or approved by Purchasers, Sellers and the Shareholder shall operate the Business in the ordinary course and shall use commercially reasonable efforts to maintain intact and preserve in all material respects Sellers’ business organization, the Purchased Assets, their properties, the Business and their relationships with Customers, Suppliers, employees and other Persons in the usual, regular and ordinary course in substantially the same manner as heretofore conducted. Sellers shall promptly notify Purchasers of any material changes to the Business, or Sellers’ operations, financial position, assets or prospects.
(3b) Without limiting the generality of Section 6.4(a), above, from the date hereof until the Closing Date, Sellers shall not, except with the prior written consent of Purchaser, during the period from the date of Purchasers and except as expressly contemplated or permitted by this Agreement to and through the Closing Date, Sellers willAgreement:
(i) maintain carry on the Purchased Assets Business other than in their current conditionthe usual, regular and ordinary wear and tear exceptedcourse in substantially the same manner as heretofore conducted;
(ii) take reasonable actions to defend and protect the Purchased Assets from infringement or usurpation; and
(iii) comply with applicable Laws, including Environmental Laws, incur any indebtedness in an amount greater than $25,000 other than with respect to the failure of such compliance as would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.
(b) Except (1) as required by applicable Law or by order ordinary course of the Bankruptcy Court, (2) as otherwise contemplated by this Agreement, or (3) with the prior written consent of Purchaser, during the period from the date of this Agreement to and through the Closing Date, Sellers will not in connection with the Business:
(i) subject any of the Purchased Assets to any Lien (except for Permitted Exceptions);
(ii) assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for the purpose of disposing of obsolete assets);
(iii) enter into any Contract for the sale of any Owned Real Propertyamend their Charter Documents;
(iv) terminate, amend, restate, supplement waive or waive release any rights under material right or cancel or compromise any material debt or claim;
(v) liquidate or sell or dispose of any Purchased ContractAssets or acquire any material assets other than inventory in the usual, regular and ordinary course in substantially the same manner as heretofore conducted;
(vi) increase the rate of compensation of, pay or agree to pay any bonus to, or provide any other employee benefit or incentive to, any of their directors, officers or employees or directors, officers or employees of the Shareholder providing services to either Seller, except in a manner consistent with past practice or as required by law or contractual obligation in effect as of the date hereof;
(vii) knowingly take any action, or knowingly fail to take any action, that would render any representation, warranty, covenant or agreement in this Agreement inaccurate or breached such that the conditions in Section 8.1 or Section 8.2 will not be satisfied; or
(vviii) agree or consent to do anything prohibited by this Section 8.2(b).
(c) Sellers will promptly notify Purchaser of: (i) any notice or other written communication from any Person alleging that the consent of such Person is or may be required in connection with the consummation of the transactions contemplated by this Agreement; and (ii) the commencement of any material Legal Proceedings relating to the Business or the Purchased Assets; provided, however, that the delivery of any notice pursuant to this Section 8.2(c) will not (x) limit or otherwise affect any remedies available to Purchaser, or (y) be deemed to amend or supplement any Schedule or prevent or cure any misrepresentations or breach of warrantyforegoing.
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Actions Pending the Closing. (a) Except (1i) as required by applicable Law or by order of the Bankruptcy Court, (2ii) as otherwise expressly contemplated by this Agreement, or (3iii) with the prior written consent of Purchaser, during the period from the date of this Agreement to and through the Closing Date (and, with respect to Section 8.2(b) only, to and through the date that is 90 days after the Closing Date), Sellers will:
(ia) maintain the Purchased Assets in their current condition, ordinary wear and tear excepted;
(i) not amend, modify, terminate, waive any rights under or create any Lien (other than Permitted Exceptions) with respect to, any of the Purchased Contracts (which term, for purposes of this Section 8.2(b), shall include any Contract that would be a Store Licensee Contract, Sourcing Contract or IP Contract if Purchaser elects to assume it) or otherwise take any actions not required by the terms of any Purchased Contract that would result in any increase in any payments to be made under such Purchased Contract and (ii) take reasonable actions not reject any Contracts that would be Purchased Contracts if Purchaser elects to assume them;
(c) except in the ordinary course of business, not cancel or compromise any material claim or waive or release any material right, in each case, that is a claim or right related to a Purchased Asset;
(d) defend and protect the Purchased Assets from infringement or usurpationdeterioration;
(e) comply with applicable material Laws with respect to the Purchased Assets;
(f) with respect to any Purchased Company, (i) not take any action that could reasonably be expected to have a material impact on the Tax position of such Purchased Company following the date hereof, (ii) not declare, set aside or pay any dividend or other distribution with respect to any capital stock or other equity interests in such Purchased Company, issues any shares of capital stock or other equity interests in such Purchased Company, or repurchase, redeem, or otherwise acquire or amend any other term of any outstanding shares of capital stock or other equity interests in such Purchased Company and (iii) not take any other action that is otherwise outside of the ordinary course of business; and
(iiig) comply with applicable Laws, including Environmental Laws, other than with respect to the failure of such compliance as would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.
(b) Except (1) as required by applicable Law or by order of the Bankruptcy Court, (2) as otherwise contemplated by this Agreement, or (3) with the prior written consent of Purchaser, during the period from the date of this Agreement to and through the Closing Date, Sellers will not in connection with the Business:
(i) subject any of the Purchased Assets to any Lien (except for Permitted Exceptions);
(ii) assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for the purpose of disposing of obsolete assets);
(iii) enter into any Contract for the sale of agreement or commitment to take any Owned Real Property;
(iv) terminate, amend, restate, supplement or waive any rights under any Purchased Contract; or
(v) agree to do anything action prohibited by this Section 8.2(b)8.2.
(c) Sellers will promptly notify Purchaser of: (i) any notice or other written communication from any Person alleging that the consent of such Person is or may be required in connection with the consummation of the transactions contemplated by this Agreement; and (ii) the commencement of any material Legal Proceedings relating to the Business or the Purchased Assets; provided, however, that the delivery of any notice pursuant to this Section 8.2(c) will not (x) limit or otherwise affect any remedies available to Purchaser, or (y) be deemed to amend or supplement any Schedule or prevent or cure any misrepresentations or breach of warranty.
Appears in 1 contract
Samples: Purchase Agreement (Radioshack Corp)
Actions Pending the Closing. (a) Except (1) as required by applicable Law or by order of the Bankruptcy Court, (2) as otherwise expressly contemplated by this Agreement, or (3) with the prior written consent of Purchaser, during the period from the date of this Agreement to and through the Closing Date, Sellers will:
(i) maintain the Purchased Assets in their current condition, ordinary wear and tear excepted;
(ii) take reasonable actions to defend and protect the Purchased Assets from infringement or usurpation; and
(iii) comply with applicable Laws, including Environmental Laws, Laws other than with respect to the failure of such compliance as would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.
(b) Except (1) as required by applicable Law or by order of the Bankruptcy Court, (2) as otherwise contemplated by this Agreement, or (3) with the prior written consent of Purchaser, during the period from the date of this Agreement to and through the Closing Date, Sellers will not in connection with the Business:
(i) subject any of the Purchased Assets to any Lien (except for Permitted Exceptions);
(ii) assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for the purpose of disposing of obsolete assets);
(iii) enter into any Contract for the sale of any Owned Real Property;
(iv) terminate, amend, restate, supplement or waive any rights under any Purchased Contract; or
(viii) agree to do anything prohibited by this Section 8.2(b).
(c) Sellers will promptly notify Purchaser of: (i) any notice or other written communication from any Person alleging that the consent of such Person is or may be required in connection with the consummation of the transactions contemplated by this Agreement; and (ii) the commencement of any material Legal Proceedings relating to the Business or the Purchased Assets; provided, however, that the delivery of any notice pursuant to this Section 8.2(c) will not (x) limit or otherwise affect any remedies available to Purchaser, or (y) be deemed to amend or supplement any Schedule or prevent or cure any misrepresentations or breach of warranty.
Appears in 1 contract
Samples: Intellectual Property Purchase Agreement (Flowers Foods Inc)
Actions Pending the Closing. (a) Except (1) as required by applicable Law or by order of the Bankruptcy Court, (2) as otherwise expressly contemplated by this Agreement, or (3) with the prior written consent of Purchaser, during the period from the date of this Agreement to and through the Closing Date, Sellers will:
(i) maintain the Purchased Assets in their current condition, ordinary wear and tear excepted;
(ii) take reasonable actions to defend and protect the Purchased Assets from infringement or usurpationinfringement; and
(iii) comply with applicable Laws, including Environmental Laws, other than with respect to the failure of such compliance as would not reasonably be expected to have, individually or Laws in the aggregate, a Seller Material Adverse Effectall material respects.
(b) Except (1) as required by applicable Law or by order of the Bankruptcy Court, (2) as otherwise contemplated by this Agreement, or (3) with the prior written consent of Purchaser, during the period from the date of this Agreement to and through the Closing Date, Sellers will not in connection with the Businessnot:
(i) subject any of the Purchased Assets to any Lien (except for Permitted ExceptionsLiens);
(ii) assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for the purpose of disposing of obsolete assets);
(iii) enter into any Contract for the direct or indirect sale (whether by merger, sale of assets or stock, or otherwise), transfer, financing, assignment, conveyance, lease, recapitalization or other disposition of any Owned Real PropertyPurchased Asset other than the sale of inventory in the ordinary course of business;
(iii) permit the lapse of any right relating to the Purchased Intellectual Property or any other intangible Purchased Asset, including trademark and domain name registrations that could have been averted through the commercially reasonable efforts of Sellers;
(iv) terminateenter into any Contract to license any Purchased Intellectual Property or renew, amendextend, restate, supplement expand or waive otherwise amend the terms of any rights existing Intellectual Property License;
(v) accelerate collection of any notes or accounts receivable due to the Sellers under any Purchased ContractContracts in advance of their regular due dates or the dates when the same would have been collected in the ordinary course of business;
(vi) merge or consolidate any Seller or an entity controlled by Sellers with any other Person or acquire any business or equity interests or any other Person;
(vii) take any action that would constitute or result in an Event of Default (as defined therein) under the DIP Credit Agreement; or
(vviii) agree take, or agree, commit or offer (in writing or otherwise) to do anything take, any actions in violation of the foregoing prohibited by this Section 8.2(b).
(c) Sellers will promptly notify Purchaser of: (i) any notice or other written communication from any Person alleging that the consent of such Person is or may be required in connection with the consummation of the transactions contemplated by this Agreement; and (ii) the commencement of any material Legal Proceedings relating to the Business or the Purchased Assets; provided, however, that the delivery of any notice pursuant to this Section 8.2(c) will not (x) limit or otherwise affect any remedies available to Purchaser, or (y) be deemed to amend or supplement any Schedule or prevent or cure any misrepresentations or breach of warranty.
Appears in 1 contract
Actions Pending the Closing. (a) Except (1) as required by applicable Law or by order of From the Bankruptcy Courtdate hereof until the Closing Date, (2) and except as otherwise expressly contemplated provided for by this Agreement, or consented to or approved by Purchaser, Seller shall use its commercially reasonable efforts to preserve in all material respects its properties, business and relationships with customers, employees and other Persons in the usual, regular and ordinary course in substantially the same manner as heretofore conducted.
(3b) Without limiting the generality of Section 6.4(a), above, from the date hereof until the Closing Date, Seller shall not, except with the prior written consent of Purchaser, during the period from the date of Purchaser and except as expressly contemplated or permitted by this Agreement to and through the Closing Date, Sellers willAgreement:
(i) maintain carry on its business other than in the Purchased Assets usual, regular and ordinary course in their current condition, ordinary wear and tear exceptedsubstantially the same manner as heretofore conducted;
(ii) take reasonable actions to defend and protect the Purchased Assets from infringement or usurpation; and
(iii) comply with applicable Laws, including Environmental Laws, other incur any indebtedness in an amount greater than with respect to the failure of such compliance as would not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.
(b) Except (1) as required by applicable Law or by order of the Bankruptcy Court, (2) as otherwise contemplated by this Agreement, or (3) with the prior written consent of Purchaser, during the period from the date of this Agreement to and through the Closing Date, Sellers will not in connection with the Business:
(i) subject any of the Purchased Assets to any Lien (except for Permitted Exceptions);
(ii) assign, license, transfer, convey, lease or otherwise dispose of any of the Purchased Assets (except for the purpose of disposing of obsolete assets)$10,000;
(iii) enter into any Contract for the sale of any Owned Real Propertyamend its governing or organizational documents;
(iv) terminate, amend, restate, supplement waive or waive release any rights under material right or cancel or compromise any material debt or claim;
(v) liquidate or sell or dispose of any Purchased ContractAssets or acquire any material assets other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted;
(vi) increase the rate of compensation of, pay or agree to pay any bonus to, or provide any other employee benefit or incentive to, any of its directors, officers or employees, except in a manner consistent with past practice or as required by law or contractual obligation in effect as of the date hereof;
(vii) knowingly take any action, or knowingly fail to take any action, that would render any representation, warranty, covenant or agreement of Seller in this Agreement inaccurate or breached such that the conditions in Section 8.1 or 8.2 will not be satisfied; or
(vviii) agree or consent to do anything prohibited by this Section 8.2(b).
(c) Sellers will promptly notify Purchaser of: (i) any notice or other written communication from any Person alleging that the consent of such Person is or may be required in connection with the consummation of the transactions contemplated by this Agreement; and (ii) the commencement of any material Legal Proceedings relating to the Business or the Purchased Assets; provided, however, that the delivery of any notice pursuant to this Section 8.2(c) will not (x) limit or otherwise affect any remedies available to Purchaser, or (y) be deemed to amend or supplement any Schedule or prevent or cure any misrepresentations or breach of warrantyforegoing.
Appears in 1 contract
