Common use of Conduct of Business by Seller Clause in Contracts

Conduct of Business by Seller. From the date hereof to the Closing Date, Seller will, except as required in connection with the transactions contemplated by this Agreement or consented to in writing by Purchaser: (a) Except and only to the extent necessary to secure new product distribution opportunities, carry on the Business in the ordinary and regular course in substantially the same manner as heretofore conducted and not engage in any new line of business or enter into any agreement, transaction or activity or make any commitment with respect to the Business except those in the ordinary and regular course of business and not otherwise prohibited under this Section 5.1 and except as otherwise consented to in writing by Purchaser; (b) Use its reasonable efforts to preserve intact the goodwill and business organization of the Business, to keep the officers and employees of the Business available to Purchaser and to preserve the relationships of the Business with customers, suppliers and others having business relations with the Business; (c) Not (i) sell any of the Assets, (ii) create, incur or assume any indebtedness secured by the Assets, or (iii) grant, create, incur, or suffer to exist any liens or encumbrances on the Assets which did not exist on the date hereof; (d) Not amend, modify or extend in any manner the terms of any employment agreement with any employee of Seller; (e) Perform in all material respects all of its obligations under all Scheduled Leases (except those being contested in good faith) and not enter into, assume or amend any contract or commitment that would be a Scheduled Lease; (f) Use its reasonable efforts to continue to maintain and service the Assets used in the conduct of the Business in the same manner as has been its consistent past practice; and (g) Use its reasonable efforts to maintain its inventory of products and stock-in-trade at normal levels in the ordinary course of business. (h) Cooperate with Purchaser in the consummation of the purchase by Purchaser of certain other businesses that Purchaser has identified to Seller.

Conduct of Business by Seller. From the date hereof to the Closing Date, Seller will, except as required in connection with the transactions contemplated by this Agreement or consented to in writing by Purchaser: (a) Except Subject to Sections 1.12, 3.1(d) and only 3.1(e), during the period from the date of this Agreement to the Closing, Seller shall, and shall cause each of the Seller Subsidiaries to, (1) carry on its businesses to the extent necessary relating to secure new product distribution opportunities, carry on the Business Portfolio in the usual, regular and ordinary and regular course in substantially the same manner as heretofore conducted and not engage in any new line of business or enter into any agreementconsistent with past practice and (2) use commercially reasonable efforts to maintain the Hometown Portfolio Properties (and, transaction or activity or make any commitment with respect to after the Business except those in Merger Transaction Consummation, the other Portfolio Properties), ordinary wear and regular course of business tear excepted, and not otherwise prohibited under this Section 5.1 and except as otherwise consented to in writing by Purchaser; (b3) Use its use commercially reasonable efforts to preserve intact its current business organization, goodwill, assets, ongoing businesses, in each case, to the goodwill and business organization extent relating to the Portfolio. Seller will promptly notify Purchaser of any litigation pending or threatened having, to the knowledge of Seller, potential liability to Seller or any of the BusinessSeller Subsidiaries, to keep the officers and employees extent relating to the Portfolio, in excess of $100,000 or any complaint, investigation or hearing, of which Seller has Knowledge, by a Governmental Entity involving Seller or any of the Business available Seller Subsidiaries, to Purchaser the extent relating to the Portfolio. (b) Subject to Sections 1.12, 3.1(d) and to preserve 3.1(e), without limiting the relationships generality of the Business foregoing, during the period from the date of this Agreement to the earlier of the termination of this Agreement or the Closing, except as set forth in Section 3.1(b) of the Seller Disclosure Letter, as otherwise contemplated by this Agreement or to the extent consented to in writing in advance by Purchaser, Seller shall not, and shall not cause each Seller Subsidiary not to engage in, authorize or agree to any of the following, in each case, with customersrespect to Hometown Portfolio Properties (and, suppliers and others having business relations with after the BusinessMerger Transaction Consummation, the other Portfolio Properties): (i) take any action that would prevent or delay the consummation of the transactions contemplated by this Agreement or the other Transaction Documents; (cii) Not except as set forth in Section 3.1(e) and except for transfers to wholly owned Subsidiaries of Seller (i) sell provided that such transfer shall not increase the Assumed Liabilities), sell, transfer, assign, mortgage, lease, subject to Lien or otherwise encumber or dispose of any of the Assets, Portfolio Properties (ii) create, incur or assume any indebtedness secured by the Assetsother than Permitted Liens), or assign or encumber the right to receive income, dividends, distributions and the like to the extent relating to the Portfolio or pledge or grant a security interest in any of the Portfolio Properties in connection with the borrowing of money or for the deferred purchase of any Portfolio Property or agree to do any of the foregoing, except as referred to in or contemplated by Section 3.1(b)(ii) of the Seller Disclosure Letter; (iii) grant, create, incur, or suffer take any actions with respect to exist any liens or encumbrances on the Assets which did not exist on the date hereof; (d) Not amend, modify or extend in any manner the terms of any employment agreement with any employee of Seller; (e) Perform in all material respects all of its obligations under all Scheduled Leases (except those being contested in good faith) and not enter into, assume or amend any contract or commitment that would be a Scheduled Lease; (f) Use its reasonable efforts to continue to maintain and service the Assets used in the conduct development of the Business in Portfolio Properties, including applying for, pursuing, accepting or obtaining any permits, approvals or other development entitlements from any governmental or other regulatory entities or finalizing or entering into any agreements relating thereto without the prior written consent of Purchaser (which consent shall not be unreasonably withheld), except as the same manner as has been its consistent past practice; and (g) Use its reasonable efforts to maintain its inventory of products and stock-in-trade at normal levels may be required in the ordinary course of businessSeller's operation of the Portfolio Properties; (iv) enter into any new service, property management or employment contract or amend, extend, renew or replace any existing service, property management or employment contract, in each case in respect of any of the Portfolio Properties without Purchaser's prior written consent (which consent shall not be unreasonably withheld), unless the same shall be cancelable without penalty or premium, upon not more than thirty (30) days' notice from the owner of such Portfolio Property, except as the same may be required in the ordinary course of Seller's operation of the Portfolio Properties; (v) originate or make any loans, or amend or modify the terms of or extend or renew any existing loans, or purchase or otherwise acquire any Homes, in each case without Purchaser's prior written consent (which consent shall not be unreasonably withheld) except in the ordinary course of Seller's business consistent with past practice and on current market terms; or (vi) take, permit or cause any action or omission inconsistent with any of the foregoing. (hc) Cooperate During the period from the date of this Agreement to the Closing, Seller shall, and shall cause each of the Seller Subsidiaries to, consult and cooperate with Purchaser with respect to all real estate tax reassessments and tax certiorari matters, to the extent relating to the Portfolio. (d) Purchaser shall within seven days after the date hereof notify Seller in writing whether or not Purchaser elects to manage the Portfolio Properties starting from the first business date immediately after the Merger Transaction Consummation (the "Management Start Date") through the earlier of the Closing Date and any termination of this Agreement, subject to the receipt of any lender or other consents to the extent required to permit Purchaser to manage the Portfolio Properties and subject to the execution by Seller and Purchaser of a mutually acceptable management agreement (the "Management Agreement"); provided, however, that notwithstanding any such election, Seller shall retain responsibility for accounting, receivables and payables and all rent and other income or revenues shall be deposited into Seller's accounts and Seller shall have the right at any time for any reason to terminate in a writing to Purchaser both such Management Agreement and Purchaser's right to manage the Portfolio Properties subject to Seller's immediate return to Purchaser of the First Management Deposit Payment and the Second Management Deposit Payment, in each case, to the extent received by Seller prior to such termination (a "Management Termination"). Subject to the immediately preceding sentence, in the consummation event Purchaser so elects to manage the Portfolio Properties (the "Management Election"), the parties shall use reasonable best efforts to obtain any such required consents as promptly as practicable and upon receipt of any such required consents with respect to the purchase by applicable Portfolio Property (1) Purchaser of certain other businesses that Purchaser has identified to Seller.shall manage such Portfolio Property from the Management Start Date (or, if such consent is required, from the later of

Conduct of Business by Seller. From the date hereof to the Closing Date, Seller will, except as required in connection with the transactions contemplated by this Agreement or consented to in writing by Purchaser: (a) Except and only as set forth on Schedule 6.01, as otherwise expressly permitted by this Agreement, as consented to the extent by Buyer in writing or as necessary to secure new product distribution opportunitiescomply with the specific restrictions set forth in Section 6.01(b), carry on Seller agrees to (and to cause the Selling Affiliates to) use commercially reasonable efforts to run the Business in the ordinary course consistent with past practice and regular course in substantially the same manner as heretofore conducted and not engage in any new line of business or enter into any agreement, transaction or activity or make any commitment with respect to the Business except those in the ordinary and regular course of business and not otherwise prohibited under this Section 5.1 and except as otherwise consented to in writing by Purchaser;use commercially reasonable efforts to: (bi) Use its reasonable efforts to preserve intact the goodwill and business organization of the Business, to keep the officers and employees of the Business available to Purchaser and to preserve the business relationships of the Business and keep available the services of its key employees and maintain its relations and goodwill with its key suppliers, customers, suppliers employees and others having business relations relationships with the Business; (cii) Not maintain in effect the Transferred IP and all applications and registrations for Trademarks and Patents included in the Transferred IP (other than abandonments, expirations, or cancellations made in the ordinary course of business of Transferred IP that are not material to the Business); and (iii) maintain all material structures, equipment and other tangible personal property of the Business in their present repair, order and condition, except for depletion and ordinary wear and tear. Without limiting the foregoing, from the Principal Closing Date through the applicable Non-Principal Country Unit Closing, Seller agrees to (and to cause the applicable Selling Affiliates) use commercially reasonable efforts to run (x) the Business in the applicable Non-Principal Country Unit in the ordinary course consistent with past practice (including devoting resources to run the Business consistent with past practice) and in compliance with the specific restrictions set forth in Section 6.01(b) and (y) reasonably consult with Buyer in good faith (through the Agreement Coordinators (as defined in the Transition Services Agreement)), in connection with the operation of the Business in such Non-Principal Country Unit. (b) Except as set forth on Schedule 6.01, as required by applicable Law or as otherwise expressly required by the terms of this Agreement, or with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed), Seller will not, and will cause its Affiliates not to, take any of the following actions to the extent related to the Business or with respect to any Transferred Asset or any Assumed Liability: (i) sell adopt, grant, extend, amend, vary, terminate or materially increase, the rate or terms of any Business Employee Benefit Plan (or any plan that would be a Business Employee Benefit Plan if in effect on the date hereof), incentive or bonus (including cash- or equity-based incentive opportunities, commission, sale, and spot bonus opportunities), insurance, pension or other employee benefit plan, payment (including wages and salaries), or arrangement made to, for or with any employee who is expected to be an Employee of the AssetsBusiness, except (A) as required by any applicable Law or any Collective Bargaining Agreement, (B) normal salary or wage increases in the ordinary course of business consistent with past practice, commensurate with similarly-situated employees of Seller or its applicable Affiliate and with the merit increase process implemented consistently across similarly-situated employees of Seller or its applicable Affiliate, (C) as contemplated in Section 8.01 of this Agreement, (D) as may be initiated by Seller or one or more of Seller’s Affiliates with respect to their employees generally in the applicable jurisdiction or geographic location (so long as the action is designed to apply uniformly to eligible Employees of the Business and a material number of eligible similarly situated other employees of Seller or its applicable Affiliate) and (E) arrangements that will not result in any liability under this Agreement or otherwise to Buyer or its Affiliates (including any retention or similar arrangements that will be paid solely by Seller and its Affiliates); (ii) createenter into or materially amend any Collective Bargaining Agreement or other agreement with a labor union, incur works council or assume similar organization covering any indebtedness secured Employee of the Business, except, in each case, (A) as required by any applicable Law or any Collective Bargaining Agreement as in effect on the Assets, date of this Agreement (or as modified as contemplated in this Agreement) or (B) where such agreement or amendment of any Collective Bargaining Agreement applies uniformly to a material number of eligible similarly situated employees of Seller or any of its Affiliates other than Employees of the Business; (iii) grantexcept as required by applicable Law, or as reasonably necessary to avoid a violation of applicable Law, transfer internally (including in response to a request for transfer by an employee), or otherwise alter the duties and responsibilities of, any employee of Seller and its Affiliates (A) in a manner that would affect whether such employee is or is not classified as an Employee of the Business, other than, in the case of any Employee of the Business, such actions that are taken in order to fill a vacancy in the Business in the ordinary course of business consistent with past practice or upon a termination for cause or due to death or disability and (B) in the case of any Raynham Line Employee, other than in the ordinary course of business consistent with past practice, in a manner that would affect (1) whether such employee is or is not classified as a Raynham Line Employee and (2) the production line to which such Raynham Line Employee is related; (iv) except as required by applicable Law, the terms of any Business Employee Benefit Plan or Collective Bargaining Agreement, (A) change any actuarial or other assumption used to calculate funding obligations with respect to any Assumed Pension Plan, except to the extent required by GAAP (or the applicable accounting standards in any jurisdiction outside of the United States) or the applicable local funding standards or (B) change the manner in which contributions to any Assumed Pension Plan are made or the basis on which such contributions are determined; (v) make any material change in any of its present financial accounting methods and practices other than changes in the ordinary course of business and other than as required to conform to GAAP or as may be required by applicable Law; (vi) pledge, sell, lease, transfer, license, assign or otherwise make subject to a Lien (other than any Permitted Liens) any material Transferred Asset (other than Transferred IP, which is addressed in clause (viii) below), other than the sale of Inventory or obsolete, worn-out or excess equipment or assets in the ordinary course of business consistent with past practice; (vii) waive or settle any claims or rights of value that relate primarily to the Business which, individually or in the aggregate, are material to the Business; (viii) pledge or otherwise make subject to a Lien (other than Permitted Liens), sell, transfer, assign, or grant any license or sublicense of any material rights under or with respect to, or otherwise dispose of any material Transferred IP, other than non-exclusive licenses to customers, distributors and suppliers granted in the ordinary course of business consistent with past practice; (ix) create or allow the Business to create, incur, assume or suffer guarantee any indebtedness for borrowed money (other than as will be discharged on or prior to exist the Applicable Closing); (x) terminate any liens Material Transferred Contract or encumbrances on the Assets which did not exist enter into or any Contract that would have been a Material Transferred Contract if in effect on the date hereof; (d) Not amendof this Agreement, modify in each case, other than in the ordinary course of business consistent with past practice and except for renewals or extend terminations in any manner accordance with the terms of any employment agreement with any employee of SellerMaterial Transferred Contract, as applicable; (exi) Perform in all any material respects all respect modify or amend the payment terms with any customers or suppliers pursuant to any Material Transferred Contract, other than changes (A) in the ordinary course of business or (B) as may be initiated by Xxxxxxx & Xxxxxxx or one of its obligations under all Scheduled Leases (except those being contested in good faith) and not enter into, assume or amend any contract or commitment that would be a Scheduled LeaseAffiliates with respect to the applicable Xxxxxxx & Xxxxxxx businesses generally; (fxii) Use its reasonable efforts fail to continue make capital expenditures necessary to maintain and service the Assets used in the conduct of operate the Business in the same manner as has been its ordinary course of business consistent with past practice; and; (gxiii) Use its reasonable efforts acquire (by merger, consolidation, acquisition of equity interests or assets or otherwise) or otherwise purchase, directly or indirectly, any business, line of business, division or equity interests of any Person that would be, individually or in the aggregate, material to maintain its inventory the Business, other than acquisitions of products and stock-in-trade at normal levels Inventory, equipment or machinery in the ordinary course of business; (xiv) except as would not reasonably be expected to affect Buyer or any of its Affiliates, in each case to a material extent, with respect to Taxes (other than income Taxes) attributable to the Transferred Assets and the Business, make, change or revoke any material Tax election, change any material Tax accounting method, file any material amended Tax Return, settle or compromise any audit or other proceeding relating to a material amount of Tax, enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local or foreign Law), apply for or request any Tax ruling, or surrender any right to claim a material Tax refund; and (xv) agree, whether in writing or otherwise, to do any of the foregoing. (hc) Cooperate with Purchaser Notwithstanding the foregoing, nothing in this Section 6.01 will prevent Seller or any of its Affiliates from effecting (i) the repayment of Indebtedness and the extinguishment of Liens and (ii) the cancellation of any intercompany contracts and other agreements that will not constitute Transferred Contracts, in each case in order to facilitate the consummation of the purchase Transactions, to the extent not otherwise prohibited by Purchaser of certain other businesses that Purchaser has identified to Sellerthis Agreement or the Ancillary Agreements.

Conduct of Business by Seller. From the date hereof to the Closing Date, the Seller will, except as required in connection with the transactions contemplated by this Agreement and except as otherwise disclosed in the Seller Disclosure Letter or consented to in writing by Purchaser: (a) Except and only to the extent necessary to secure new product distribution opportunities, carry Carry on the Business in the ordinary and regular course in substantially the same manner as heretofore conducted and not engage in any new line of business or enter into any agreement, transaction or activity or make any commitment with respect to the Business except those in the ordinary and regular course of business and not otherwise prohibited under this Section 5.1 and except as otherwise consented to in writing by Purchaser5.1; (b) Use its reasonable efforts to preserve intact the goodwill and business organization of the Business, to keep the officers and employees of the Business available to Purchaser and to preserve the relationships of the Business with customers, suppliers and others having business relations with the Business; (c) Not (i) sell any of the Assets, (ii) create, incur or assume any indebtedness secured by the Assets, or (iii) grant, create, incur, or suffer to exist any liens or encumbrances on the Assets which did not exist on the date hereofhereof or (iv) make any capital expenditure involving the Business in excess of Twenty-Five Thousand Dollars ($25,000) in the case of any single expenditure or One Hundred Thousand Dollars ($100,000) in the case of all capital expenditures; (d) Not amendenter into, modify or extend in any manner the terms of any employment agreement employment, severance or similar agreements with officers, directors or employees associated with the Business nor grant any employee increase in the compensation of Sellerofficers, directors or employees involved in the Business, whether now or hereafter payable, including any such increase pursuant to any option, bonus, stock purchase, pension, profit-sharing, deferred compensation, retirement or other plan, arrangement, contract or commitment; (e) Perform in all material respects all of its obligations under all Seller Material Contracts, Seller Client Contracts, Real Property Leases and Scheduled Leases (except those being contested in good faith) and not enter into, assume or amend any contract or commitment that would be a Seller Material Contract, Seller Client Contract, Real Property Lease or Scheduled Lease; (f) Use its reasonable efforts to continue to maintain and service the Assets used in the conduct of the Business in the same manner as has been its consistent past practice; and (g) Use its reasonable efforts to maintain its inventory of products and stock-in-trade at normal levels in the ordinary course of business. (h) Cooperate with Purchaser in the consummation of the purchase by Purchaser of certain other businesses that Purchaser has identified to Seller.

Conduct of Business by Seller. From the date hereof to the Closing ----------------------------- Date, Seller will, except as required required. in connection with the transactions contemplated by this Agreement or and except as otherwise consented to in writing by Purchaser, which consent shall not be unreasonably withheld: (aA) Except and only Subject to the extent necessary to secure new product distribution opportunitiesSection 6.1(C) below, carry on the Business in the ordinary and regular course in substantially the same manner as heretofore conducted and will not engage in take any new line action inconsistent with this Agreement or with the consummation of business or enter into any agreement, transaction or activity or make any commitment with respect to the Business except those in the ordinary and regular course of business and not otherwise prohibited under this Section 5.1 and except as otherwise consented to in writing by PurchaserClosing; (bB) Use its reasonable efforts to preserve intact the goodwill and business organization of the Business, to keep the officers and employees of the Business Employees available to Purchaser and to preserve the relationships of the Business with customers, suppliers customers and others having business relations with the Business; (cC) Not (i) sell any of the AssetsPurchased Assets other than sales of Purchased Assets in the ordinary course of business consistent with past practices, the proceeds of which shall be credited against the Purchase Price due at Closing; (ii) create, incur or assume any indebtedness secured by the Purchased Assets, or (iii) grant, create, incur, incur or suffer to exist any liens or encumbrances Liens, except for Permitted Liens, on the Purchased Assets which did not exist on the date hereof, or (iv) make any expenditures, commitments or capital acquisitions outside of normal business practices (and in no event more than $100,000.00) without Purchaser's prior consent pending Closing (which consent shall not be unreasonably withheld); (dD) Not amendenter into, modify or extend in any manner the terms of any employment agreement employment, severance or similar agreements with Employees nor grant or agree to grant (either in writing or verbally) any employee increase in the compensation of SellerEmployees (except in the ordinary course), whether now or hereafter payable, including any such increase pursuant to any option, bonus, stock purchase, pension, profit sharing, deferred compensation, retirement or other plan, arrangement, contract or commitment; (eE) Perform in all material respects all of its obligations under all Scheduled Leases (except those being contested in good faith) customer contracts related to the Business, leases for Leased Real Property and not enter into, assume or amend any contract or commitment that would be a Scheduled LeaseLeased Assets; (fF) Maintain in full force and effect and in the same amounts policies of insurance comparable in amount and scope of coverage to that now maintained by the Seller with respect to the Business and the Purchased Assets; (G) Continue to pay all accounts payable and similar obligations in the ordinary course of business and consistent with past practices; (H) Maintain the supplies and inventory maintained by the Business at levels which are consistent with the past practices of the Business, provided, however, that any costs incurred by the Business with respect to such inventory increases shall be an Assumed Obligation and any decreases with respect to such inventory shall be credited against the Purchase Price at Closing; (I) Prepare and file all federal, state and local returns for taxes and other tax reports, filings and amendments thereto required to be filed by Seller; (J) Continue to provide all regularly scheduled services, (K) Use its reasonable efforts to continue to maintain and service the Purchased Assets used in the conduct of the Business in the same manner as has been its consistent past practice; and (gL) Use its reasonable efforts Purchase such additional equipment as the Purchaser shall reasonably request prior to maintain its inventory of products and stock-in-trade at normal levels the Closing to be used in the ordinary course of business. (h) Cooperate Business, provided, however, such purchases shall be debited to the Purchase Price and paid to Seller at the Closing. In connection with Purchaser in the consummation continued operation of the purchase by Business between the date of this Agreement and the Closing Date, Seller shall at Purchaser's reasonable request confer in good faith on a regular basis with one or more designated representatives of Purchaser with respect to material matters affecting or impacting the operations of certain other businesses the Business and to consult in general with respect to the ongoing operations of the Business. Seller acknowledges that Purchaser has identified does not and will not waive any rights it may have under this Agreement as a result of such consultations nor shall Purchaser be responsible for any decisions made by the officers or directors of Seller with respect to Sellermatters which are the subject of such consultation. Purchaser acknowledges that, notwithstanding any such consultation, Seller shall have sole and exclusive decision-making authority in respect of the Business, subject to this Section 6.1.