Common use of Conduct of Business - Affirmative Covenants Clause in Contracts

Conduct of Business - Affirmative Covenants. During the Interim Period, Seller will: (a) use its best efforts to preserve the Railcar Subsidiaries’ assets and business organization intact, and except as may otherwise be requested by Buyer, keep available to Buyer the services of the Railcar Subsidiaries’ present employees; (b) pay or provide for all social security, withholding, sales and unemployment insurance taxes owed by the Railcar Subsidiaries to all applicable local, state and federal governments; (c) pay wages and all other amounts, if any, to become due during the Interim Period on account of health and welfare insurance, accrued vacation and holiday pay and other fringe benefits consistent with past practice, which such practice includes the periodic accrual of such liabilities; (d) maintain the present insurance coverage of the Railcar Subsidiaries’ business in effect consistent with past practice, which such practice includes the periodic accrual of such liabilities; (e) duly withhold and collect all taxes and other assessments and liens which the Railcar Subsidiaries are required by law to withhold or to collect for periods ending prior to the Closing Date and either pay over such amounts to the proper Governmental Authorities or hold such amounts in segregated accounts pending payment; (f) in cooperation with Buyer as required, commence all commercially reasonable action required hereunder (i) to obtain all applicable permits, licenses, certificates and other Governmental Authorizations or approvals necessary for Buyer to carry on the operations as presently conducted, and (ii) to obtain all applicable consents, approvals and agreements of, and to give all notices and make all filing with, any third parties (including, but not limited to, the Railcar Subsidiaries’ vendors and suppliers) as may be necessary to consummate the transactions contemplated hereby, by a date early enough to allow the transactions to be consummated by the Closing Date; provided, however, that neither Buyer nor Seller shall be required to agree to any unfavorable modification of any existing contract or agreement or to pay material amounts in order to obtain such consent; and (g) maintain the Railcar Subsidiaries’ books and records consistent with prior practice.

Conduct of Business - Affirmative Covenants. During Prior to the Interim PeriodEffective Time, Seller will: (a) use Rudy's and each Subsidiary will conduct its best efforts to preserve business in the Railcar Subsidiaries’ assets ordinary course and business organization intact, and except as may otherwise be requested by Buyer, keep available to Buyer the services of the Railcar Subsidiaries’ present employees; (b) pay or provide for all social security, withholding, sales and unemployment insurance taxes owed by the Railcar Subsidiaries to all applicable local, state and federal governments; (c) pay wages and all other amounts, if any, to become due during the Interim Period on account of health and welfare insurance, accrued vacation and holiday pay and other fringe benefits consistent with past practice, except where the failure to do so would not have a Material Adverse Effect. Without limiting the generality of the foregoing, prior to the Effective Time each of Rudy's and the Subsidiaries: 8.2.1 will maintain its good standing and qualification to do business in all jurisdictions where it is required to be qualified to do business, and all licenses, permits, franchises, rights and privileges which such practice includes are necessary for the periodic accrual conduct of such liabilitiesthe its business; (d) 8.2.2 shall continue at its expense to maintain its property and equipment in customary repair, order and working condition, reasonable wear and use excepted, and keep in full force and effect the present insurance coverage Leases, except those which expire by their terms, and, if any Leases expire by their own terms, renew the same if such renewal is in the ordinary course of the Railcar Subsidiaries’ business in effect and consistent with past custom and practice, which such practice includes the periodic accrual of such liabilities; (e) 8.2.3 shall duly withhold comply with all laws, regulatory requirements and collect all taxes agreements to which it is subject or by which it is bound; 8.2.4 shall maintain the current insurance upon its properties and other assessments and liens which the Railcar Subsidiaries are required by law to withhold or to collect for periods ending prior with respect to the Closing Date conduct of its business; 8.2.5 shall pay and either pay over such amounts discharge, before the same shall become delinquent, all Taxes imposed on it or against its income or profits or any of its properties, and all other Liabilities which, if unpaid, might become an encumbrance, except to the proper Governmental Authorities or hold such amounts in segregated accounts pending payment; (f) in cooperation with Buyer extent and so long as required, commence all commercially reasonable action required hereunder (i) to obtain all applicable permits, licenses, certificates the same are being contested in good faith and other Governmental Authorizations or approvals necessary for Buyer to carry on the operations as presently conductedby appropriate proceedings, and (ii) it shall have set aside on its books reasonable reserves with respect thereto under GAAP consistently applied; 8.2.6 shall use commercially reasonable efforts to obtain keep intact its present business organizations, keep available the services of its present officers, employees and agents and use commercially reasonable efforts to preserve its present relationships with all applicable customers, clients, accounts, suppliers and other entities or persons having business relationships with it, in each case in the ordinary course of business or in a manner consistent with customary historical practices or course of conduct; 8.2.7 shall furnish to Benihana for its examination (i) its minute books containing all records required to be set forth of all proceedings, consents, approvals actions and agreements ofmeetings of the shareholders and Board of Directors; (ii) all permits, orders, and consents issued by any governmental authority with respect to give Rudy's and such Subsidiary, and all notices applications for such permits, orders, and make consents; and (iii) its stock transfer books setting forth all transfers of any shares of capital stock; 8.2.8 shall maintain its books, records and accounts with accuracy and consistently with past practices; and 8.2.9 shall comply with the requirements of any state, city or local law, statute, ordinance, regulation or otherwise in any state, city or locality in which any of the Owned Real Properties are located and/or in which any of the properties demised under the Leases are located, which law, statute, ordinance or regulation imposes a transfer tax and/or filing with, any third parties (including, but not limited to, the Railcar Subsidiaries’ vendors and suppliers) as may be necessary to consummate requirement in connection with the transactions contemplated hereby, by a date early enough to allow the transactions to be consummated by the Closing Date; provided, however, that neither Buyer nor Seller shall be required to agree to any unfavorable modification of any existing contract or agreement or to pay material amounts in order to obtain such consent; and (g) maintain the Railcar Subsidiaries’ books and records consistent with prior practice.

Conduct of Business - Affirmative Covenants. During Unless the Interim Period, Seller willprior written consent of the Company shall have been obtained: (a) use Each of Jefferson and its best efforts to preserve subsidiary shall: (i) Operate its business only in the Railcar Subsidiaries’ assets and business organization intactusual, regular, and except as may otherwise be requested by Buyer, keep available to Buyer the services of the Railcar Subsidiaries’ present employeesordinary course; (bii) pay or provide for all social security, withholding, sales Preserve intact its business organizations and unemployment insurance taxes owed by the Railcar Subsidiaries assets and to all applicable local, state maintain its rights and federal governmentsfranchises; (ciii) pay wages and all other amountsTake no action, if anyunless otherwise required by law, rules or regulation, that would reasonably be considered to become due during the Interim Period on account of health and welfare insurance, accrued vacation and holiday pay and other fringe benefits consistent with past practice, which such practice includes the periodic accrual of such liabilities; (dA) maintain the present insurance coverage adversely affect its ability or that of the Railcar Subsidiaries’ business in effect consistent with past practice, which such practice includes the periodic accrual of such liabilities; (e) duly withhold and collect all taxes and other assessments and liens which the Railcar Subsidiaries are required by law to withhold or to collect for periods ending prior to the Closing Date and either pay over such amounts to the proper Governmental Authorities or hold such amounts in segregated accounts pending payment; (f) in cooperation with Buyer as required, commence all commercially reasonable action required hereunder (i) Company to obtain all applicable permits, licenses, certificates and other Governmental Authorizations or any necessary approvals necessary for Buyer to carry on the operations as presently conducted, and (ii) to obtain all applicable consents, approvals and agreements of, and to give all notices and make all filing with, any third parties (including, but not limited to, the Railcar Subsidiaries’ vendors and suppliers) as may be necessary of Regulatory Authorities required to consummate the transactions contemplated herebyby this Agreement, by a date early enough or (B) adversely affect the ability of such Party to allow the transactions to be consummated by the Closing Dateperform its covenants and agreements under this Agreement; (iv) Except as they may terminate in accordance with their terms, keep in full force and effect, and not default in any of their obligations under, all material contracts; provided, however, that neither Buyer nor Seller as of or prior to the Closing Date the Data Servicing Agreement between Jefferson and FISERV Cleveland, Inc. ("FISERV") dated January 13, 1993 (the "Contract") will, at the request of the Company, be terminated by Jeffxxxxx, xx being understood and agreed by the parties hereto that any payment, whether denominated a termination payment, liquidated damage payment or otherwise, payable by Jeffxxxxx xx FISERV as a result of such early termination of the Contract shall be required not have the effect of reducing Jeffxxxxx'x xxxreholders' equity as of the Closing Date for purposes of Section 3.2(a) or Section 8.2(k) of this Agreement; (v) Keep in full force and effect insurance coverage with responsible insurance carriers which is reasonably adequate in coverage and amount for companies the size of Jefferson and its subsidiary, respectively, and for the nature of the business and the properties owned by them, to agree the extent that such insurance is reasonably available; (vi) Use its best efforts to any unfavorable modification retain the present customer base of any existing contract or agreement or each of Jefferson and its subsidiary and to pay material amounts in order to obtain facilitate the retention of such consentcustomers by Acquisition after the Effective Time; and (vii) Maintain, renew, keep in full force and effect, and preserve its business organization and material rights and franchises, permits and licenses, and to use its best efforts to maintain positive relations with its present employees so that such employees will continue to perform effectively and will be available to the Company and Company Subsidiaries at and after the Effective Time, and to use its best efforts to maintain its existing, or substantially equivalent, credit arrangements with banks and other financial institutions and to assure the continuance of customer relationships. (b) Jeffxxxxx xxxees to use its best efforts to assist the Company in obtaining the Governmental Approvals necessary to complete the transactions contemplated hereby and does not know of any reason that such governmental Approvals can not be obtained. Each of Jefferson and its subsidiary shall provide to the Company or to the appropriate governmental authorities all information reasonably required to be submitted in connection with obtaining such approvals. (c) Jefferson, at its cost and expense, shall use its best efforts to secure all necessary consents and all consents and releases, if any, required by Jeffxxxxx xx third parties and shall comply with all applicable laws, regulations and rulings in connection with this Agreement and the consummation of the transactions contemplated hereby. (d) At all times to and including, and as of, the Closing, Jeffxxxxx xxxll inform the Company in writing of any and all facts necessary to amend or supplement the representations and warranties made herein and in the Jefferson Schedules attached hereto as necessary so that the information contained herein and therein will accurately reflect the current status of Jefferson and its subsidiary; provided, however, that any such updates to the Jefferson Schedules shall be required prior to the Closing only with respect to matters which represent material changes to the Jefferson Schedules and the information contained therein. (e) On and after the Closing Date, each of Jefferson and its subsidiary shall give such further assistance to the Company and shall execute, acknowledge and deliver all such documents and instruments as the Company may reasonably request and take such further action as may be necessary or appropriate effectively to consummate the transactions contemplated by this Agreement. 45 51 (f) Between the date of this Agreement and the Closing Date, each of Jefferson and its subsidiary shall, at times mutually agreed upon by Jefferson and the Company, afford the Company, its officers, employees, agents or other representatives (including accountants and attorneys) reasonable access during normal business hours to the properties, operations, books, records, contracts, documents, loan files and other information of, or relating to Jefferson or its subsidiary. The business and accounting records of Jefferson and its subsidiary to which access shall be provided shall include but shall not be limited to loan and deposit account files; reports and correspondence sent to, filed with or received from any federal or state regulatory or supervisory agency; all leases with respect to Jeffxxxxx'x xx its subsidiary's premises; all internal audit reports and management's responses thereto; a list of current directors; a list of current shareholders of Jefferson; and such other information concerning the business, financial condition, affairs, properties and prospects of Jefferson and its subsidiary as the Company, its employees, officers, agents or other representatives may reasonably request. Each of Jefferson and its subsidiary shall provide reasonable assistance to the Company in its investigation of matters relating to Jefferson or its subsidiary. (g) maintain Subject to the Railcar Subsidiaries’ books terms and records consistent conditions of this Agreement, Jeffxxxxx xxxees to use all reasonable efforts and to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things necessary, proper, or advisable under applicable laws and regulations to consummate and make effective, with reasonable promptness after the date of this Agreement, the transactions contemplated by this Agreement, including, without limitation, using reasonable efforts to lift or rescind any injunction or restraining or other order adversely affecting the ability of the Parties to consummate the transaction contemplated by this Agreement. Jeffxxxxx xxxll use its best efforts to obtain consents of all third parties and Regulatory Authorities necessary or desirable for the consummation of each of the transactions contemplated by this Agreement. (h) Jeffxxxxx xxxll notify the Company promptly after becoming aware of the occurrence of, or the impending or threatened occurrence of, any event that would constitute a breach on its part of any obligation under this Agreement or the occurrence of any event that would cause any representation or warranty made by it or its subsidiary herein to be false or misleading, of it or its subsidiary becomes a party or is threatened with becoming a party to any legal or equitable proceeding or governmental investigation or upon the occurrence of any event that would result in a change in the circumstances described in the representations and warranties contained herein. (A) Jeffxxxxx xxxll, at its sole cost and expense, engage an environmental engineering firm for the purpose of remediation of any adverse environmental condition existing with respect to the properties of Jefferson, including but not limited to those located at 5th Avenue and Maple Street in Marysville, Ohio and at 2182 Xxxx Xxxxxx-Xxxxxxxxx Xxxx xx Xxxxxxxxxxx, Xxxx; xxovided, however, that Jeffxxxxx xxxll not be required to remediate the Marysville property if Jeffxxxxx xxxonstrates to the Company's satisfaction that Jeffxxxxx xxx disposed of such property in a transaction or transactions with one or more third parties. The remediation required hereunder shall be completed prior practiceto the Closing Date. (B) The Company shall be afforded the opportunity to cause a Phase I (and if indicated a Phase II) Environmental Audit of all real property owned or leased by Jefferson or its subsidiary (whether used in their operations or otherwise). Any Phase I Environmental Audit shall be completed by the Company not later than sixty (60) days following the date of this Agreement. If, as a result of such Environmental Audit, a fact, circumstance or condition is discovered that would constitute a violation of Jefferson's or its subsidiary's representations set forth herein, if known to Jefferson or its subsidiary, whether or not disclosed in a schedule hereto, Jeffxxxxx xxxll take or cause to be taken such actions as are necessary to remedy the same to the reasonable satisfaction of the Company. (C) The Company shall be afforded the right, at the Company's expense, to conduct a physical inspection of all improvements, buildings and mechanical equipment owned or leased by Jefferson or its subsidiary. Any such inspection shall be conducted at a time mutually acceptable to Jeffxxxxx xxx the Company and shall not unreasonably interfere with the conduct of Jeffxxxxx'x xxxiness. The inspection shall be conducted not later than thirty (30) days following the date of this Agreement.

Conduct of Business - Affirmative Covenants. During the Interim Period, Seller will: (a) use its best efforts to preserve the Railcar Subsidiaries’ ' assets and business organization intact, and except as may otherwise be requested by Buyer, keep available to Buyer the services of the Railcar Subsidiaries’ ' present employees; (b) pay or provide for all social security, withholding, sales and unemployment insurance taxes owed by the Railcar Subsidiaries to all applicable local, state and federal governments; (c) pay wages and all other amounts, if any, to become due during the Interim Period on account of health and welfare insurance, accrued vacation and holiday pay and other fringe benefits consistent with past practice, which such practice includes the periodic accrual of such liabilities; (d) maintain the present insurance coverage of the Railcar Subsidiaries’ ' business in effect consistent with past practice, which such practice includes the periodic accrual of such liabilities; (e) duly withhold and collect all taxes and other assessments and liens which the Railcar Subsidiaries are required by law to withhold or to collect for periods ending prior to the Closing Date and either pay over such amounts to the proper Governmental Authorities or hold such amounts in segregated accounts pending payment; (f) in cooperation with Buyer as required, commence all commercially reasonable action required hereunder (i) to obtain all applicable permits, licenses, certificates and other Governmental Authorizations or approvals necessary for Buyer to carry on the operations as presently conducted, and (ii) to obtain all applicable consents, approvals and agreements of, and to give all notices and make all filing with, any third parties (including, but not limited to, the Railcar Subsidiaries’ ' vendors and suppliers) as may be necessary to consummate the transactions contemplated hereby, by a date early enough to allow the transactions to be consummated by the Closing Date; provided, however, that neither Buyer nor Seller shall be required to agree to any unfavorable modification of any existing contract or agreement or to pay material amounts in order to obtain such consent; and (g) maintain the Railcar Subsidiaries’ ' books and records consistent with prior practice.