Certain Agreements of the Parties. Section 4.1. Conduct of Business of the Company. Except as set forth in the Company Disclosure Letter, from the date of this Agreement until the earlier of the Initial Closing or the termination of this Agreement, unless the prior written consent of the Purchaser shall have been obtained, and except as otherwise contemplated by this Agreement, the Company will conduct, and will cause each of its Subsidiaries to conduct, its operations according to its ordinary and usual course of business consistent with past practice and shall use all reasonable efforts to preserve intact its current business organizations, keep available the service of its current senior officers and key employees, maintain its material permits and contracts and preserve its relationships with customers, suppliers and others having material business dealings with it. Without limiting the generality of the foregoing, and except as otherwise contemplated by this Agreement or as set forth in the Company Disclosure Letter, the Company will not, without the prior written consent of the Purchaser:
(a) issue, sell, grant, dispose of, pledge or otherwise encumber, or authorize or propose the issuance, sale, disposition or pledge or other encumbrance of (i) any additional shares of capital stock of any class (including shares of Common Stock), or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for any shares of capital stock, or any rights, warrants, options, calls, commitments or any other agreements of any character to purchase or acquire any shares of capital stock or any securities or rights convertible into, exchangeable for, or evidencing the right to subscribe for, any shares of capital stock or (ii) any other securities in respect of, in lieu of, or in substitution for, shares of Common Stock outstanding on the date hereof;
(b) redeem, purchase or otherwise acquire, or propose to redeem, purchase or otherwise acquire, any of its outstanding shares of Common Stock;
(c) split, combine, subdivide or reclassify any shares of Common Stock or declare, set aside for payment or pay any dividend, or make any other actual, constructive or deemed distribution in respect of any capital stock of the Company or otherwise make any payments to stockholders in their capacity as such, except for dividends by a direct or indirect wholly owned Company Subsidiary;
(d) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restruct...
Certain Agreements of the Parties. 33 Section 4.1. Conduct of Business of the Company.......................33 Section 4.2. Approvals, Etc...........................................35 Section 4.3. Access; Non-Solicitation.................................36 Section 4.4. Existing Rights..........................................38 Section 4.5. Proxy Statement; Shareholders' Meeting...................38 Section 4.6. Publicity................................................39 Section 4.7. Warehouse Facilities.....................................39 Section 4.8. NYSE Waiver..............................................39 Section 4.9. Recapitalization; Rights Offering........................39 Section 4.10. Material Developments....................................40 Section 4.11. New Option Plan; Other Employee Arrangements.............40 Section 4.12. Board of Directors.......................................40 Section 4.13. Indemnification and Insurance............................41
Certain Agreements of the Parties. 30 7.1. Payment of Transfer Taxes and Other Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 7.2. Confidentiality Covenant of the Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 7.3. Operation of Business and Related Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 7.4.
Certain Agreements of the Parties. SECTION 6.1 Furnishing of Information. As long as an Investor owns at least 75% of the Shares originally purchased by it pursuant to this Agreement, the Company covenants to timely file (or obtain extensions in respect thereof) all reports required to be filed by the Company after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange Act and to promptly furnish such Investor with true and complete copies of all such filings. If the Company is not at the time required to file reports pursuant to such sections, it will prepare and furnish to such Investor annual and quarterly reports comparable to those required by Section 13(a) or 15(d) of the Exchange Act in the time period that such filings would have been required to have been made under the Exchange Act.
Certain Agreements of the Parties a. Within one (1) business day of the execution of this Agreement by all parties, XRG agrees to forward via wire transfer, to an account designated by HTI, the sum of $170,000. HTI agrees to utilize the proceeds of this $170,000 initial funding to bring debt service current on all obligations due to United Bank, on terms satisfactory to United Bank on which XRG is an obligor or guarantor and to satisfy other trade and accounts payable of HTI. HTI agrees that all proceeds from this $170,000 will be used to satisfy bona fide obligations of HTI.
b. Beginning on the 10th day of the month after the condition set forth in Section 2 has been satisfied, but in no event later than June 10, 2005, and on the same day of each month thereafter for 41 months XRG shall pay HTI $6,000. Beginning on the same day of the 42nd month after the conditions set forth in Section 2 have been satisfied, and on the same day of each month thereafter for 19 months XRG shall pay HTI $16,000 (the “Settlement Payment”). The parties agree that the Settlement Payment will be directed to United Bank to satisfy obligations of XRG and HTI to United Bank. In no event will XRG’s liability to United Bank exceed the amount of the Settlement Payment and HTI, Mx. Xxxxx and Mx. Xxxxx agree to indemnify and hold harmless XRG from any amounts assessed or imposed upon XRG by United Bank in excess of the Settlement Payment.
c. It is the intent and desire of the parties to restructure a certain promissory note due to United Bank in the original principal amount of $778,103.58 such that XRG is the primary obligor on 4/7’s and HTI, Mx. Xxxxx and Mx. Xxxxx are the obligors on the other 3/7’s of the amount due under this note (the “United Note”). The parties will cooperate with each other in attempting to restructure and separate the United Note into two separate promissory notes. Until such time as the United Note is restructured, XRG agrees to make timely Settlement Payments, which will be used by HTI to make debt service payments on the United Note.
d. Subject to paragraph c., below, Mx. Xxxxx and Mx. Xxxxx shall be entitled to retain the shares of XRG common stock issued to them pursuant to the Purchase Agreement. In addition, XRG shall cause the issuance in total of 75,000 shares of its Common Stock to HTI, Mx. Xxxxx or Mx. Xxxxx as directed by the parties.
e. HTI agrees to faithfully fulfill its obligations under the Terminal Agreement and Mx. Xxxxx and Mx. Xxxxx agree to use their best efforts to cause...
Certain Agreements of the Parties. 38 4.01 Conduct of Business Prior to the Closing...................... 38 4.02 Access to Information......................................... 39 4.03
Certain Agreements of the Parties. Section 5.1 Conduct of Business Prior to the Closing.................................................27 Section 5.2
Certain Agreements of the Parties. 6.1 Provision of Letter of Credit. Concurrently with the execution of this Agreement, L/C Provider shall provide to the Authority and the Trustee the Initial Letter of Credit in the form attached as Exhibit A specifying the Authority as beneficiary. L/C Provider (a) shall have the right to provide at any time a replacement Letter of Credit substantially in the form of Exhibit A hereto and meeting the other requirements set forth in this Agreement, provided that any such replacement Letter of Credit need only be for the then applicable Minimum Letter of Credit Amount (as defined below), and (b) until the Release Condition has been satisfied, shall provide such replacement Letter of Credit at least 60 days prior to any expiration or termination of the Letter of Credit then in effect (except as permitted by this Section 6.1). The determination as to whether any letter of credit is substantially in the form of Exhibit A shall be made by Trustee in its good faith discretion. Each Letter of Credit shall be provided by a federally or state chartered commercial bank having capital and surplus in excess of $500 million and a Thomson Bank Watch Rating of "A" or better. At such time that either this Agreement terminates or the Authority experiences a Fixed Charge Coverage Ratio of at least 2.5 to 1.0 during the same period consisting of four consecutive fiscal quarters beginning after the Initial Operating Date for the Facility has occurred, the Letter of Credit shall be cancelled and the Authority shall promptly return it to the L/C Provider. The term "Minimum Letter of Credit Amount" shall mean the difference of $15,000,000 less the aggregate amount of all previous draws under any Letter of Credit in accordance with this Agreement; provided, however, from and after the date when the Authority shall have satisfied all of the conditions precedent to the disbursement of all remaining funds in the Construction Period Accounts, as set forth in Section 4.5 of the Cash Collateral and Disbursement Agreement, the Minimum Letter of Credit Amount shall be the lesser of such difference or $10,000,000. Each replacement Letter of Credit that is delivered to Trustee shall be accompanied by (a) a copy of a transfer certificate that shall have been properly delivered to the issuer of the replacement Letter of Credit and that is in the form attached to the replacement Letter of Credit pursuant to which the replacement Letter of Credit and all rights therein shall have been transferr...
Certain Agreements of the Parties. 30 6.1. Proxy Statement/Prospectus; Registration Statement........... 30 6.2.
Certain Agreements of the Parties. 8.1 Conduct of Seller Prior to Closing. Seller covenants and agrees that, through the period prior to Closing: (i) the Assets, including without limitation each Facility, shall be operated in the ordinary course of business and in a manner consistent with Seller's past practice, and Seller will use its best efforts to maintain existing levels of occupancy at each Facility; (ii) no sale, disposition, removal, or encumbrance of any furniture, fixtures, or equipment located at the Premises, outside of the ordinary course of business, shall be made without the written approval of Purchaser; (iii) except in accordance with established practice and rates of increase, Seller shall not pay or obligate itself to pay any bonus, pension, retirement, insurance, death, or other form of incentive or special compensation to any employee, agent, partner, or shareholder, or make any increase in rates of pay of any employees, agents, partners, or shareholders without the written approval of Purchaser; (iv) except for closing expenses contemplated by this Agreement as Seller's obligation at Closing, no contract, agreement, lease, or other obligation providing for the contract, agreement, lease, or other obligation providing for the payment of consideration or the occurrence of indebtedness of more than Five Thousand Dollars ($5,000) in any one instance, Ten Thousand Dollars ($10,000) in the aggregate, shall be executed, entered into, or made by Seller in connection with the operation of the Assets, without the written approval of Purchaser; (v) no increase shall be made in the usual rates charged to tenants or patients at the Facility without the written approval of Purchaser; (vi) Seller will replace the Inventory used in the operation of the Facility as and when required in the ordinary course of business and the quantity and quality of the Inventory at Closing shall be substantially the same as exists on the Effective Date; (vii) no order for equipment, machinery, furniture, furnishings, or accessories which was placed by Seller prior to the Effective Date shall be canceled by Seller after the Effective Date without the written approval of Purchaser; (viii) as soon as possible, but not less than twenty-four (24) hours, prior to the submission of any plan of correction to any state licensure authorities, Seller shall submit a copy thereof to Purchaser; (ix) Seller shall use its best efforts to preserve the business operation of each Facility and to preserve for Purchaser t...
