Conduct of Business Before the Closing Date. From and after the Execution Date until the Closing, except as expressly contemplated by this Agreement or as otherwise set forth on Section 5.1.1 of the Seller Disclosure Letter, the Seller will operate the Commercial Services Business only in the ordinary course consistent with past practice. In addition, without limiting the generality of the foregoing, the Seller will refrain from taking any of the following actions, except as expressly contemplated by this Agreement or unless consented to in writing by the Purchaser: (a) selling, leasing or otherwise disposing of all or any portion of the assets or business of the Commercial Services Business to any Person (including, without limitation, any Seller Subsidiary), other than in the ordinary course of business; (b) the formation of any Subsidiary to engage in the Commercial Services Business; (c) merging or consolidating with and into any Person, or merging or consolidating any Person with and into it; (d) engaging in any liquidation or dissolution; (e) engaging in any transaction involving the Commercial Services Business in an amount in excess of $25,000, other than in the ordinary course of business or as otherwise permitted pursuant to subclause (l) below; provided, that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (e); (f) entering into any new line of business on behalf of the Commercial Services Business; (g) placing any Lien on any of the CSO Assets, other than Permitted Liens; (h) entering into any personal property lease on behalf of the Commercial Services Business with a fixed rental over the term in excess of $25,000; (i) entering into any Contract with, or making any loan to, any Covered Employee, other than (x) any Contract that would not have to be disclosed on Section 3.6 of the Seller Disclosure Letter, or (y) normal travel and expense advances or relocation allowances consistent with past practices; (j) amending the Lien Termination Agreements (as defined in Section 5.1.10); (k) amending in any material respect any Covered Contract or any other material contract of the Commercial Services Business; provided, that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (k); (l) enter into any Contract with any client of the Commercial Services Business, including, without limitation, any Identified Pipeline Client that (i) is not entered into in the ordinary course of business, (ii) is not freely assignable to the Purchaser at the Closing without further consent, (iii) involves an amount in excess of $2,500,000, (iv) restricts the Seller’s (or any transferee’s) freedom to engage in any line of business or to compete with any Person, including restrictions limiting the Seller’s (or a transferee’s) ability to service competitive accounts during or after the term thereof (excluding for these purposes customary and reasonable restrictions on specific Non-ERT Sales Employees’ or ERT Sales Employees’ rights to promote competitive products while they are providing services for such client), (v) has commercial terms, including, without limitation, payment terms, termination rights and indemnification provisions that are not substantially similar to the commercial terms that the Seller has agreed to for Contracts of a similar size that were entered into by the Seller on behalf of the Commercial Services Business during the 2015 calendar year prior to the Execution Date), or (vi) will result in below average profit margins for the Commercial Services Business (as compared to other Contracts of a similar size that were entered into by the Seller on behalf of the Commercial Services Business during the 2015 calendar year prior to the Execution Date); provided that that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under subclause (iii) of this Section 5.1.1(l); provided further that the Purchaser’s consent shall not be required under this Section 5.1.1(l) with respect to the Seller’s entry into a Contract with Client 16 (a “Client 16 Contract”) so long as each of the conditions set forth in subclauses (i), (ii), (iv) and (v) of Section 5.1.1(l) are met and so long as the additional conditions set forth on Section 5.1.1(l) of the Seller Disclosure Letter are satisfied; (m) establishing, adopting or modifying any Plan or benefit, including, but not limited to, any bonus plan, Title IV Plan, “excess benefit plan,” deferred compensation plan, severance or change in control plan or employee benefit plan that provides post-retirement health, medical, life insurance or death benefits to retired, current or former employees, directors or consultants of the Commercial Services Business, except as required by applicable Law; (n) except as set forth on Section 5.1.1(n) of the Seller Disclosure Letter, granting any salary compensation increase to any Covered Employee; (o) paying bonuses to any Covered Employee other than (x) in an amount and on terms that are in the ordinary course of business consistent with past practice, or (y) in an amount and on terms that may be required under existing agreements; (p) hiring any employee of the Commercial Services Business unless such new employee’s employment package is substantially similar in all material respects to similarly situated employees; (q) taking any action that if taken immediately prior to the Execution Date would have to be disclosed on Section 3.21 of the Seller Disclosure Letter; provided that that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (q); or (r) delegating to directors, officers or employees the power to take any of the actions prohibited by any of the foregoing clauses. Notwithstanding anything to the contrary contained herein, nothing contained in this Agreement will give the Purchaser, directly or indirectly, rights to control or direct the Commercial Services Business or the operations of the Seller prior to the Closing. Prior to the Closing, the Seller will exercise, consistent with the terms and conditions of this Agreement, control of the Commercial Services Business. To the extent any of the clauses of this Section 5.1.1 requires that the Purchaser not unreasonably withhold, condition or delay its consent to a specified action, the parties agree that the Purchaser will not be deemed to be acting unreasonably if it makes a determination not to approve an action that it believes in good faith will either reduce the short-term or long-term profitability of the Transferred Business or would (if such action was taken following the Closing) violate any of the business conduct policies set forth in Section 9.1.1 hereof).
Appears in 1 contract
Samples: Asset Purchase Agreement (Pdi Inc)
Conduct of Business Before the Closing Date. From Prior to the approval of this Agreement by the Bankruptcy Court on terms satisfactory to the Purchaser, between the date hereof and after the Execution Date until the ClosingClosing Date, Seller shall not, except as expressly contemplated by this Agreement or as otherwise set forth on Section 5.1.1 required pursuant to an Order of the Seller Disclosure LetterBankruptcy Court, Bankruptcy Code or the Seller will operate DIP Facility or except with Purchaser's knowledge and consent during the Commercial Services Business only term of the Interim Management Agreement, (i) make any material change in the ordinary course consistent with past practice. In additionassets, without limiting properties, rights and claims which would on the generality of Closing Date constitute Purchased Assets or the foregoingBusiness as it relates to the assets, properties, rights and claims which would on the Seller will refrain from taking Closing Date constitute Purchased Assets, (ii) or enter into any of transaction respecting the following actions, except as expressly contemplated by this Agreement or unless consented to in writing by the Purchaser:
(a) selling, leasing or otherwise disposing of all or any portion of the assets or business of the Commercial Services Business to any Person (including, without limitation, any Seller Subsidiary)Business, other than in any such case in the ordinary course of business;
the Business consistent with Seller's past practices, and, (biii) except with regard to ordering more inventory, shall continue to operate the formation of any Subsidiary Stores and the Business as it relates to engage in the Commercial Services Business;
(c) merging or consolidating with and into any Person, or merging or consolidating any Person with and into it;
(d) engaging in any liquidation or dissolution;
(e) engaging in any transaction involving the Commercial Services Business in an amount in excess of $25,000, other than Purchased Assets in the ordinary course of business or as otherwise permitted pursuant to subclause the Business and (liv) below; provided, that Purchaser shall not unreasonably withhold, condition under any circumstances conduct a liquidation or delay its consent with respect to the actions requiring consent solely under this clause (e);
(f) entering into any new line of business on behalf of the Commercial Services Business;
(g) placing any Lien on "GOB" sale at any of the CSO Assets, other than Permitted Liens;
Stores or "go dark" (h) entering into any personal property lease on behalf Purchaser acknowledges that Seller's Mall of the Commercial Services Business with a fixed rental over the term in excess of $25,000;
America (i) entering into any Contract with, or making any loan to, any Covered Employee, other than (x) any Contract that would not have to be disclosed on Section 3.6 of the Seller Disclosure Letter, or (y) normal travel and expense advances or relocation allowances consistent with past practices;
(j) amending the Lien Termination Agreements (as defined in Section 5.1.10);
(k) amending in any material respect any Covered Contract or any other material contract of the Commercial Services Business; provided, that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (k);
(l) enter into any Contract with any client of the Commercial Services Business, including, without limitation, any Identified Pipeline Client that (i) is not entered into in the ordinary course of business, (ii) is not freely assignable to the Purchaser at the Closing without further consent, (iii) involves an amount in excess of $2,500,000, (iv) restricts the Seller’s (or any transferee’s) freedom to engage in any line of business or to compete with any Person, including restrictions limiting the Seller’s (or a transferee’s) ability to service competitive accounts during or after the term thereof (excluding for these purposes customary and reasonable restrictions on specific Non-ERT Sales Employees’ or ERT Sales Employees’ rights to promote competitive products while they are providing services for such clientMN), National Press Building (v) has commercial terms, including, without limitation, payment terms, termination rights and indemnification provisions that are not substantially similar to the commercial terms that the Seller has agreed to for Contracts of a similar size that were entered into by the Seller on behalf of the Commercial Services Business during the 2015 calendar year prior to the Execution DateD.C.), or Connecticut Avenue (vi) will result in below average profit margins for the Commercial Services Business (as compared to other Contracts of a similar size that were entered into by the Seller on behalf of the Commercial Services Business during the 2015 calendar year prior to the Execution Date); provided that that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under subclause (iii) of this Section 5.1.1(l); provided further that the Purchaser’s consent shall not be required under this Section 5.1.1(l) with respect to the Seller’s entry into a Contract with Client 16 (a “Client 16 Contract”) so long as each of the conditions set forth in subclauses (i), (ii), (ivD.C.) and Xxxxx Gallerie (vD.C.) of Section 5.1.1(lStores have gone "dark") are met and so long as the additional conditions set forth on Section 5.1.1(l) of the Seller Disclosure Letter are satisfied;
(m) establishing, adopting or modifying any Plan or benefit, including, but not limited to, any bonus plan, Title IV Plan, “excess benefit plan,” deferred compensation plan, severance or change in control plan or employee benefit plan that provides post-retirement health, medical, life insurance or death benefits to retired, current or former employees, directors or consultants of the Commercial Services Business, except as required by applicable Law;
(n) except as set forth on Section 5.1.1(n) of the Seller Disclosure Letter, granting any salary compensation increase to any Covered Employee;
(o) paying bonuses to any Covered Employee other than (x) in an amount and on terms that are in the ordinary course of business consistent with past practice, or (y) in an amount and on terms that may be required under existing agreements;
(p) hiring any employee of the Commercial Services Business unless such new employee’s employment package is substantially similar in all material respects to similarly situated employees;
(q) taking any action that if taken immediately prior to the Execution Date would have to be disclosed on Section 3.21 of the Seller Disclosure Letter; provided that that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (q); or
(r) delegating to directors, officers or employees the power to take close any of the actions prohibited by any Stores subject to the Assigned Leases, PROVIDED, HOWEVER, subject to approval of the foregoing clauses. Notwithstanding anything to Bankruptcy Court, Seller shall conduct liquidation or "GOB" sales at the contrary contained herein, nothing contained in this Agreement will give the Purchaser, directly or indirectly, rights to control or direct the Commercial Services Business or the operations of the Seller prior to the Closing. Prior to the Closing, the Seller will exercise, consistent with the terms and conditions of this Agreement, control of the Commercial Services Business. To the extent any of the clauses of this Section 5.1.1 requires that the Purchaser not unreasonably withhold, condition or delay its consent to a specified action, the parties agree that the Purchaser will not be deemed to be acting unreasonably if it makes a determination not to approve an action that it believes in good faith will either reduce the short-term or long-term profitability of the Transferred Business or would (if such action was taken following the Closing) violate any of the business conduct policies set forth in Section 9.1.1 hereof).Aisle 3
Appears in 1 contract
Conduct of Business Before the Closing Date. From and after (a) Except as (i) set forth in Schedule 7.1, (ii) expressly required by this Agreement, or (iii) consented in writing by the Execution Date Buyer (which consent shall not be unreasonably withheld), from the date hereof until the Closing, except as expressly contemplated by this Agreement or as otherwise set forth on Section 5.1.1 of the Seller Disclosure LetterClosing Date, the Seller will operate shall cause the Commercial Services Business only Company to, (A) conduct its business in the ordinary course in a manner consistent with past practicepractice and (B) use all commercially reasonable efforts to preserve intact its business organizations and to keep available the services of its present officers and employees and preserve its relationships with customers, suppliers and others having business dealings with the Company. In addition, without Without limiting the generality of the foregoing, the Seller will refrain from taking any of the following actions, except as (i) set forth in Schedule 7.1, (ii) expressly contemplated required by this Agreement Agreement, or unless (iii) consented to in writing by the PurchaserBuyer (which consent shall not be unreasonably withheld), from the date hereof until the Closing Date, the Seller shall not permit the Company to:
(ai) sellingenter into any material transaction other than in the ordinary course of business consistent with past practices;
(ii) make any change in any Organizational Document; issue any additional equity securities or grant any option, leasing warrant or otherwise disposing right to acquire any equity securities or issue any security convertible into or exchangeable for such securities;
(iii) make any sale, assignment, transfer or other conveyance of all its material assets, properties or any portion of the assets or business of the Commercial Services Business to any Person (including, without limitation, any Seller Subsidiary)rights, other than in the ordinary course of business, consistent with past practice, except transactions pursuant to existing contracts;
(biv) the formation subject any of its assets, properties or rights or any Subsidiary part thereof, to engage in the Commercial Services Business;
(c) merging or consolidating with and into any Person, or merging or consolidating any Person with and into it;
(d) engaging in any liquidation or dissolution;
(e) engaging in any transaction involving the Commercial Services Business in an amount in excess of $25,000, other than in the ordinary course of business or as otherwise permitted pursuant to subclause (l) below; provided, that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (e);
(f) entering into any new line of business on behalf of the Commercial Services Business;
(g) placing any Lien on any of the CSO Assets, other than Permitted Liens;
(h) entering into any personal property lease on behalf of the Commercial Services Business with a fixed rental over the term in excess of $25,000;
(i) entering into any Contract with, or making any loan to, any Covered Employee, other than (x) any Contract that would not have to be disclosed on Section 3.6 of the Seller Disclosure Letter, or (y) normal travel Liens and expense advances or relocation allowances consistent with past practices;
(j) amending the Lien Termination Agreements (such Liens as defined in Section 5.1.10);
(k) amending in any material respect any Covered Contract or any other material contract of the Commercial Services Business; provided, that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (k);
(l) enter into any Contract with any client of the Commercial Services Business, including, without limitation, any Identified Pipeline Client that (i) is not entered into may arise in the ordinary course of business, (ii) is not freely assignable to consistent with past practice, and that will not, individually or in the Purchaser at the Closing without further consentaggregate, (iii) involves an amount in excess of $2,500,000, (iv) restricts the Seller’s (or any transferee’s) freedom to engage in any line of business or to compete with any Person, including restrictions limiting the Seller’s (or have a transferee’s) ability to service competitive accounts during or after the term thereof (excluding for these purposes customary and reasonable restrictions on specific Non-ERT Sales Employees’ or ERT Sales Employees’ rights to promote competitive products while they are providing services for such client), Company Material Adverse Effect;
(v) has commercial termsredeem, includingretire, without limitationpurchase or otherwise acquire, payment termsdirectly or indirectly, termination rights and indemnification provisions that are not substantially similar to the commercial terms that the Seller has agreed to for Contracts of a similar size that were entered into by the Seller on behalf equity interests of the Commercial Services Business during the 2015 calendar year prior to the Execution Date)Company or declare, set aside or pay any non-cash dividends or other non-cash distributions in respect of such interests;
(vi) will result merge or consolidate with, or acquire any material assets or properties of, any other Person (other than capital expenditures), in below average profit margins for the Commercial Services Business a single transaction or a series of transactions or by any other manner;
(as compared to other Contracts of a similar size that were entered into by the Seller on behalf of the Commercial Services Business during the 2015 calendar year prior to the Execution Date); provided that that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under subclause (iii) of this Section 5.1.1(l); provided further that the Purchaser’s consent shall not be required under this Section 5.1.1(lvii) with respect to the Seller’s entry any Company Employee, enter into a Contract with Client 16 any new (a “Client 16 Contract”or amend any existing) so long as each of the conditions set forth in subclauses (i), (ii), (iv) and (v) of Section 5.1.1(l) are met and so long as the additional conditions set forth on Section 5.1.1(l) of the Seller Disclosure Letter are satisfied;
(m) establishing, adopting or modifying any Plan or benefit, including, but not limited to, any bonus employee benefit plan, Title IV Plan, “excess benefit plan,” deferred compensation planprogram or arrangement or any new (or amend any existing) employment, severance or change consulting agreement, grant any general increase in control the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit sharing or other plan or employee benefit plan that provides post-retirement health, medical, life insurance commitment) or death benefits grant any increase in the compensation payable or to retired, current or former employees, directors or consultants of the Commercial Services Businessbecome payable to any employee, except as required by applicable Law, or in accordance with pre existing contractual provisions;
(nviii) make or commit to make any capital expenditure that is in excess of $250,000 individually or $500,000 in the aggregate, except as set forth on Section 5.1.1(n) for capital expenditures incurred in connection with entering into new customer contracts in the ordinary course of business and the Seller Disclosure Letter, granting any salary compensation increase to any Covered EmployeeContracts Capital Expenditures;
(oix) paying bonuses to pay, lend or advance any Covered Employee amount to, or sell, transfer or lease any properties or assets to, or enter into any Contract with, any of its Affiliates, other than (w) the payment of salary, bonus and fringe benefits to the directors, officers and employees of the Company pursuant to existing arrangements, (x) cash distributions with respect to the Interests, (y) repayment of any inter-company indebtedness or (z) as contemplated by this Agreement;
(x) make any change in an amount any method of accounting or accounting principle, method, estimate or practice, except for any such change required by reason of a concurrent change in GAAP;
(xi) settle, release or forgive any material claim or litigation or waive any right thereto;
(xii) incur, assume, guarantee or modify any liability or obligation, except for negative cash balances and on terms that are unpaid checks or drafts incurred in the ordinary course of business consistent with past practice, or (y) in an amount and on terms that may be required under existing agreements;
(pxiii) hiring make any employee new, or change any existing, tax election or settle and/or compromise any tax liability, prepare any Returns in a manner which is inconsistent with the past practices of the Commercial Services Business unless Company with respect to the treatment of items on such new employee’s employment package is substantially similar Returns, incur any material liability for Taxes other than in all material respects the ordinary course of business or file an amended Return or a claim for refund of Taxes with respect to similarly situated employeesthe income, operations or property of the Company where such actions could result in an increase in a cash payment relating to the Tax liability of the Company;
(qxiv) taking plan, announce, implement or effect any reduction in force, lay-off, early retirement program, severance program or other program or effort concerning the termination of employment of employees of the Company;
(xv) enter into any agreement, arrangement or other transaction with any Affiliate, director, officer or shareholder of the Company or the Seller;
(xvi) take any action that if taken immediately on or prior to the Execution Date date of this Agreement would have to be disclosed on Section 3.21 cause any of the representations and warranties of the Seller Disclosure Letter; provided that that Purchaser shall not unreasonably withhold, condition as set forth in Section 5 to be false or delay its consent with respect to the actions requiring consent solely under this clause (q)incorrect in any material respect; or
(rxvii) delegating take any action in contemplation of or enter into any Contract or letter of intent with respect to, or otherwise commit or agree to directorsdo, officers in each case, whether or employees the power to take not binding or enforceable and whether or not in writing, any of the actions prohibited by any foregoing.
(a) requiring the consent of the foregoing clauses. Notwithstanding anything to the contrary contained herein, nothing contained in this Agreement will give the Purchaser, directly or indirectly, rights to control or direct the Commercial Services Business or the operations of the Seller prior to the Closing. Prior to the ClosingBuyer, the Seller will exerciseshall provide prior written notice to the Buyer, consistent with which notice shall specify in reasonable detail the terms desired action. The Buyer shall respond to any such request from the Seller promptly following receipt of such written notice, and conditions of this Agreement, control of the Commercial Services Business. To the extent any of the clauses of this Section 5.1.1 requires that the Purchaser not unreasonably withhold, condition or delay its consent to a specified action, the parties agree that the Purchaser will not shall be deemed to be acting unreasonably if it makes a determination have consented to the action requested by the Seller in the event that the Buyer has not responded to approve an action that it believes in good faith will either reduce the short-term or long-term profitability of the Transferred Seller within five (5) Business or would (if Days after such action was taken following the Closing) violate any of the business conduct policies set forth in Section 9.1.1 hereof)written notice is given.
Appears in 1 contract
Conduct of Business Before the Closing Date. From (a) Except as set forth on Schedule 7.1 of the Disclosure Schedule, without the prior written consent of the Buyer, between the date hereof and after the Execution Date until Closing Date, the ClosingSellers shall not, except as required or expressly contemplated by this Agreement or as otherwise set forth on Section 5.1.1 of permitted pursuant to the Seller Disclosure Letter, the Seller will operate the Commercial Services Business only in the ordinary course consistent with past practice. In addition, without limiting the generality of the foregoing, the Seller will refrain from taking any of the following actions, except as expressly contemplated by this Agreement or unless consented to in writing by the Purchaserterms hereof:
(ai) selling, leasing or otherwise disposing of all or make any portion material change in the conduct of the assets Business or business enter into any transaction in an amount greater than $25,000 or having a term or duration of the Commercial Services Business to any Person (including, without limitation, any Seller Subsidiary), more than one year or other than in the ordinary course of businessbusiness consistent with past practices;
(bii) make any sale, assignment, transfer, abandonment or other conveyance of the formation of Purchased Property or any Subsidiary part thereof, except transactions pursuant to engage existing contracts set forth in the Commercial Services BusinessSchedules hereto and dispositions of inventory or of worn-out or obsolete Equipment and Machinery in the ordinary course of business consistent with past practice;
(ciii) merging or consolidating with and into subject any Personof the Purchased Property, or merging any part thereof, to any Lien or consolidating suffer such to exist other than such Liens as may arise in the ordinary course of business consistent with past practice by operation of law and that will not, individually or in the aggregate, interfere materially with the use, operation, enjoyment or marketability of any Person with and into itof the Purchased Property;
(div) engaging in acquire any liquidation assets, raw materials or dissolution;
(e) engaging in any transaction involving the Commercial Services Business in an amount in excess of $25,000properties, other than in the ordinary course of business consistent with past practice;
(v) enter into any new (or as otherwise permitted amend any existing) Employee Benefit Plan or employment, severance or consulting agreement, grant any general increase in the compensation of officers or employees (including any such increase pursuant to subclause any Employee Benefit Plan) or grant any increase in the compensation payable or to become payable to any employee, except in accordance with pre-existing contractual provisions or consistent with past practice;
(lvi) below; providedfail to keep in full force and effect insurance comparable in amount and scope of coverage maintained in respect of the Business;
(vii) take any other action that would cause any of the representations and warranties made by them in the Transaction Documents not to remain true and correct in all material respects (except as to representations and warranties which are qualified as to materiality, that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (ewhich representations and warranties must remain true and correct in all respects);
(fviii) entering into without notifying the Buyer in writing at least five (5) Business Days prior thereto, (A) make any new line change in any tax election or in any accounting principle, method, estimate or practice (except for any such change required by reason of business on behalf of the Commercial Services Business;
(ga concurrent change in GAAP) placing any Lien on any of the CSO Assets, other than Permitted Liens;
(h) entering into any personal property lease on behalf of the Commercial Services Business with a fixed rental over the term in excess of $25,000;
(i) entering into any Contract with, or making any loan to, any Covered Employee, other than (x) any Contract that would not have to be disclosed on Section 3.6 of the Seller Disclosure Letter, or (y) normal travel and expense advances or relocation allowances consistent with past practices;
(j) amending the Lien Termination Agreements (as defined in Section 5.1.10);
(k) amending in any material respect any Covered Contract or any other material contract of the Commercial Services Business; provided, that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (k);
(l) enter into any Contract with any client of the Commercial Services Business, including, without limitation, any Identified Pipeline Client that (i) is not entered into in the ordinary course of business, (ii) is not freely assignable to the Purchaser at the Closing without further consent, (iii) involves an amount in excess of $2,500,000, (iv) restricts the Seller’s (or any transferee’s) freedom to engage in any line of business or to compete with any Person, including restrictions limiting the Seller’s (or a transferee’s) ability to service competitive accounts during or after the term thereof (excluding for these purposes customary and reasonable restrictions on specific Non-ERT Sales Employees’ or ERT Sales Employees’ rights to promote competitive products while they are providing services for such client), (v) has commercial terms, including, without limitation, payment terms, termination rights and indemnification provisions that are not substantially similar to the commercial terms that the Seller has agreed to for Contracts of a similar size that were entered into by the Seller on behalf of the Commercial Services Business during the 2015 calendar year prior to the Execution Date), or (vi) will result in below average profit margins for the Commercial Services Business (as compared to other Contracts of a similar size that were entered into by the Seller on behalf of the Commercial Services Business during the 2015 calendar year prior to the Execution Date); provided that that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under subclause (iii) of this Section 5.1.1(l); provided further that the Purchaser’s consent shall not be required under this Section 5.1.1(l) with respect to the Seller’s entry into a Contract with Client 16 (a “Client 16 Contract”) so long as each of the conditions set forth in subclauses (i), (ii), (iv) and (v) of Section 5.1.1(l) are met and so long as the additional conditions set forth on Section 5.1.1(l) of the Seller Disclosure Letter are satisfied;
(m) establishing, adopting or modifying any Plan or benefit, including, but not limited to, any bonus plan, Title IV Plan, “excess benefit plan,” deferred compensation plan, severance or change in control plan or employee benefit plan that provides post-retirement health, medical, life insurance or death benefits to retired, current or former employees, directors or consultants of the Commercial Services Business, except as required by applicable Law;
(nB) except as set forth on Section 5.1.1(n) of the Seller Disclosure Letter, granting any salary compensation increase to any Covered Employee;
(o) paying bonuses to any Covered Employee other than (x) in an amount and on terms that are in the ordinary course of business consistent with past practice, write down the value of any inventory or write off as uncollectible any accounts receivable;
(yix) make, enter into, modify, amend in any material respect, renew, extend or terminate any Assigned Contract in an amount and on terms that may be required under existing agreementsgreater than $50,000 or having a term or duration of more than one year or other than in the ordinary course of business consistent with past practice;
(px) hiring make any employee Restricted Payments, other than accrued bonus payments to existing Employees to the extent reflected in the December Balance Sheet and Allowed Distributions;
(xi) settle, release or forgive any claim or litigation or waive any right, in an amount greater than $25,000 or having a term or duration of more than one year or other than in the ordinary course of business and consistent with past practice;
(xii) enter into any real property lease, sublease or occupancy agreement or assign or sublet any existing real property lease, sublease or occupancy agreement; or
(xiii) agree or commit to do any of the Commercial Services Business unless such new employee’s employment package is substantially similar foregoing.
(b) From and after the date hereof and until the Closing Date, the Sellers shall:
(i) continue to maintain, in all material respects to similarly situated employeesrespects, the Purchased Property in accordance with present practice in a condition suitable for its current use;
(qii) taking any action that if taken immediately prior file, when due or required, subject to the Execution Date would have applicable extensions, federal, state, foreign and other Tax Returns and other reports required to be disclosed on Section 3.21 filed and pay when due all Taxes, assessments, fees and other charges lawfully levied or assessed against them, unless the validity thereof is contested in good faith and by appropriate proceedings diligently conducted;
(iii) continue to conduct the Business in the ordinary course of business consistent with past practice;
(iv) keep the Seller Disclosure Letter; provided that that Purchaser shall not unreasonably withholdbooks of account, condition or delay its consent records and files in the ordinary course of business and in accordance with existing practice;
(v) use commercially reasonable efforts to maintain existing business relationships with landlords, lenders, suppliers and customers with respect to the actions requiring consent solely under this clause (q)Business in accordance with past practice; orand
(rvi) delegating to directors, officers or employees use all cash generated by the power to take any of the actions prohibited by any of the foregoing clauses. Notwithstanding anything to the contrary contained herein, nothing contained Business solely for working capital purposes in this Agreement will give the Purchaser, directly or indirectly, rights to control or direct the Commercial Services Business or the operations of the Seller prior to the Closing. Prior to the Closing, the Seller will exercise, consistent accordance with the terms and conditions of this Agreement, control of the Commercial Services Business. To the extent any of the clauses of this Section 5.1.1 requires that the Purchaser not unreasonably withhold, condition or delay its consent to a specified action, the parties agree that the Purchaser will not be deemed to be acting unreasonably if it makes a determination not to approve an action that it believes in good faith will either reduce the short-term or long-term profitability of the Transferred Business or would (if such action was taken following the Closing) violate any of the business conduct policies set forth in Section 9.1.1 hereof)past practice.
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Conduct of Business Before the Closing Date. From Prior to the approval of this Agreement by the Bankruptcy Court on terms satisfactory to the Purchaser, between the date hereof and after the Execution Date until the ClosingClosing Date, Seller shall not, except as expressly contemplated by this Agreement or as otherwise set forth on Section 5.1.1 required pursuant to an Order of the Seller Disclosure LetterBankruptcy Court, Bankruptcy Code or the Seller will operate DIP Facility or except with Purchaser's knowledge and consent during the Commercial Services Business only term of the Interim Management Agreement, (i) make any material change in the ordinary course consistent with past practice. In additionassets, without limiting properties, rights and claims which would on the generality of Closing Date constitute Purchased Assets or the foregoingBusiness as it relates to the assets, properties, rights and claims which would on the Seller will refrain from taking Closing Date constitute Purchased Assets, (ii) or enter into any of transaction respecting the following actions, except as expressly contemplated by this Agreement or unless consented to in writing by the Purchaser:
(a) selling, leasing or otherwise disposing of all or any portion of the assets or business of the Commercial Services Business to any Person (including, without limitation, any Seller Subsidiary)Business, other than in any such case in the ordinary course of business;
the Business consistent with Seller's past practices, and, (biii) except with regard to ordering more inventory, shall continue to operate the formation of any Subsidiary Stores and the Business as it relates to engage in the Commercial Services Business;
(c) merging or consolidating with and into any Person, or merging or consolidating any Person with and into it;
(d) engaging in any liquidation or dissolution;
(e) engaging in any transaction involving the Commercial Services Business in an amount in excess of $25,000, other than Purchased Assets in the ordinary course of business or as otherwise permitted pursuant to subclause the Business and (liv) below; provided, that Purchaser shall not unreasonably withhold, condition under any circumstances conduct a liquidation or delay its consent with respect to the actions requiring consent solely under this clause (e);
(f) entering into any new line of business on behalf of the Commercial Services Business;
(g) placing any Lien on "GOB" sale at any of the CSO Assets, other than Permitted Liens;
Stores or "go dark" (h) entering into any personal property lease on behalf Purchaser acknowledges that Seller's Mall of the Commercial Services Business with a fixed rental over the term in excess of $25,000;
America (i) entering into any Contract with, or making any loan to, any Covered Employee, other than (x) any Contract that would not have to be disclosed on Section 3.6 of the Seller Disclosure Letter, or (y) normal travel and expense advances or relocation allowances consistent with past practices;
(j) amending the Lien Termination Agreements (as defined in Section 5.1.10);
(k) amending in any material respect any Covered Contract or any other material contract of the Commercial Services Business; provided, that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (k);
(l) enter into any Contract with any client of the Commercial Services Business, including, without limitation, any Identified Pipeline Client that (i) is not entered into in the ordinary course of business, (ii) is not freely assignable to the Purchaser at the Closing without further consent, (iii) involves an amount in excess of $2,500,000, (iv) restricts the Seller’s (or any transferee’s) freedom to engage in any line of business or to compete with any Person, including restrictions limiting the Seller’s (or a transferee’s) ability to service competitive accounts during or after the term thereof (excluding for these purposes customary and reasonable restrictions on specific Non-ERT Sales Employees’ or ERT Sales Employees’ rights to promote competitive products while they are providing services for such clientMN), National Press Building (v) has commercial terms, including, without limitation, payment terms, termination rights and indemnification provisions that are not substantially similar to the commercial terms that the Seller has agreed to for Contracts of a similar size that were entered into by the Seller on behalf of the Commercial Services Business during the 2015 calendar year prior to the Execution DateD.C.), or Connecticut Avenue (vi) will result in below average profit margins for the Commercial Services Business (as compared to other Contracts of a similar size that were entered into by the Seller on behalf of the Commercial Services Business during the 2015 calendar year prior to the Execution Date); provided that that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under subclause (iii) of this Section 5.1.1(l); provided further that the Purchaser’s consent shall not be required under this Section 5.1.1(l) with respect to the Seller’s entry into a Contract with Client 16 (a “Client 16 Contract”) so long as each of the conditions set forth in subclauses (i), (ii), (ivD.C.) and Mazzx Xxxlerie (vD.C.) of Section 5.1.1(lStores have gone "dark") are met and so long as the additional conditions set forth on Section 5.1.1(l) of the Seller Disclosure Letter are satisfied;
(m) establishing, adopting or modifying any Plan or benefit, including, but not limited to, any bonus plan, Title IV Plan, “excess benefit plan,” deferred compensation plan, severance or change in control plan or employee benefit plan that provides post-retirement health, medical, life insurance or death benefits to retired, current or former employees, directors or consultants of the Commercial Services Business, except as required by applicable Law;
(n) except as set forth on Section 5.1.1(n) of the Seller Disclosure Letter, granting any salary compensation increase to any Covered Employee;
(o) paying bonuses to any Covered Employee other than (x) in an amount and on terms that are in the ordinary course of business consistent with past practice, or (y) in an amount and on terms that may be required under existing agreements;
(p) hiring any employee of the Commercial Services Business unless such new employee’s employment package is substantially similar in all material respects to similarly situated employees;
(q) taking any action that if taken immediately prior to the Execution Date would have to be disclosed on Section 3.21 of the Seller Disclosure Letter; provided that that Purchaser shall not unreasonably withhold, condition or delay its consent with respect to the actions requiring consent solely under this clause (q); or
(r) delegating to directors, officers or employees the power to take close any of the actions prohibited by any Stores subject to the Assigned Leases, provided, however, subject to approval of the foregoing clauses. Notwithstanding anything to Bankruptcy Court, Seller shall conduct liquidation or "GOB" sales at the contrary contained herein, nothing contained in this Agreement will give the Purchaser, directly or indirectly, rights to control or direct the Commercial Services Business or the operations of the Seller prior to the Closing. Prior to the Closing, the Seller will exercise, consistent with the terms and conditions of this Agreement, control of the Commercial Services Business. To the extent any of the clauses of this Section 5.1.1 requires that the Purchaser not unreasonably withhold, condition or delay its consent to a specified action, the parties agree that the Purchaser will not be deemed to be acting unreasonably if it makes a determination not to approve an action that it believes in good faith will either reduce the short-term or long-term profitability of the Transferred Business or would (if such action was taken following the Closing) violate any of the business conduct policies set forth in Section 9.1.1 hereof).Aisle 3
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Samples: Asset Purchase Agreement (Value City Department Stores Inc /Oh)
