Common use of Conduct of Business in the Ordinary Course Clause in Contracts

Conduct of Business in the Ordinary Course. The Seller shall cause each of the Companies to conduct their business only in the ordinary course. By way of amplification and not limitation, except as otherwise provided herein, the Seller shall cause the Companies, without the prior written consent of the Buyer, not to do any of the following: (i) borrow or agree to borrow any material amount of funds or incurred any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise), or guarantee or agree to guarantee any obligations of others, (ii) cancel any indebtedness owing to any of them or any claims that any of them might possess, waive any material rights of substantial value or sell, lease, encumber, transfer or otherwise dispose of, or agree to sell, lease, encumber, or otherwise dispose of their respective assets or permit any of their respective assets to be subjected to any mortgage, pledge, lien, security interest, encumbrance, restriction or charge of any kind, (iii) make any capital expenditure or commitment therefor, (iv) declare or pay any dividend or make any distribution on any shares of their respective capital stock, or redeem, purchase or otherwise acquire any shares of their respective capital stock or any option, warrant or other right to purchase or acquire any such shares, (v) increase their respective indebtedness for borrowed money or make any loan to any Person, (vi) write off as uncollectible any notes or accounts receivable, except write-offs in the ordinary course of business charged to applicable reserves, (vii) make any material change in any method of accounting or auditing practice, (viii) otherwise conduct their respective business or enter into any transaction, except in the usual and ordinary manner, or (ix) agree, whether or not in writing, to do any of the foregoing.

Conduct of Business in the Ordinary Course. The Seller Except as expressly contemplated by this Agreement, the Sellers and the Company covenant and agree that, unless the Buyer shall otherwise consent in writing, the Retained Business shall be conducted only in, and the Sellers and the Company shall not take any action, and cause each of the Companies Retained Subsidiary not to conduct their business only take any action, except in the ordinary coursecourse of business and in a manner consistent with past practice. By way The Sellers and the Company further covenant that they shall and shall cause the Subsidiaries to use their respective best efforts to preserve the current business organization of amplification the Company and not limitationthe Retained Subsidiary intact (including all supply, license, franchise and similar relationships of such business), keep available the services of the current officers, employees, and agents of the Company and the Retained Subsidiary, and maintain the relationships and goodwill with suppliers, distributors, sales representatives, customers, clients, landlords, creditors, employees, agents, and others having business relationships with the Company and the Retained Subsidiary. Additionally, without limiting the generality of the foregoing, except as otherwise provided hereinexpressly contemplated by this Agreement (including, for the avoidance of doubt, for the implementation of the Restructuring), prior to the Closing Date, the Seller shall cause Sellers and the CompaniesCompany, without the prior written consent of the Buyer, Buyer (consent not to do any of the followingbe unreasonably withheld) shall not, directly or indirectly: (i) borrow solicit or agree to borrow encourage any material amount of funds inquiry, discussion or incurred any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise), or guarantee or agree to guarantee any obligations of others, proposal for; (ii) cancel any indebtedness owing propose to any of them negotiate with or any claims that any of them might possess, waive any material rights of substantial value or sell, lease, encumber, transfer or otherwise dispose of, or agree to sell, lease, encumber, or otherwise dispose of their respective assets or permit any of their respective assets to be subjected to any mortgage, pledge, lien, security interest, encumbrance, restriction or charge of any kind, hold discussions with respect to; (iii) make enter into any capital expenditure agreement or commitment therefor, understanding providing for; or (iv) declare take any actions or pay permit the Company or the Retained Subsidiary to take any dividend actions which may cause or make result in: (a) the issuance of any distribution on new shares or any security convertible into or exchangeable into shares of their respective capital stock, or redeem, purchase or otherwise acquire any shares of their respective capital stock or any option, warrant or other right to purchase acquire shares of the Company or acquire the Retained Subsidiary; (b) the entering into any such business combination between the Company or the Retained Subsidiary and any third party, including any merger, exchange of shares, (v) increase their respective indebtedness for borrowed money sale, transfer or make other conveyance of any loan of the shares of the Company or the Retained Subsidiary and/or the sale of any of the assets of the Company or the Retained Subsidiary related to any Personthe Retained Business, (vi) write off as uncollectible any notes or accounts receivable, except write-offs other than disposition of assets in the ordinary course of business charged consistent with past practice; (c) the declaration or payment of any distribution of any kind and nature to applicable reservesthe shareholders of the Company, excluding the payment of any indebtedness to Mr. Yacov Neuwirth or Yacov Noy Xxxdingx Xxx., xrovided that such indebtedness is fully reflected as a liability in the Reviewed Balance Sheet; (viid) the creation of debt securities or the grant of any option in respect thereof or the agreement to do so; (e) the adoption of any resolution in the Company's or the Retained Subsidiaries' general meetings and Board of Directors; (f) the entering into a recapitalization or reorganization of the Company (except as required for the Restructuring) or the Retained Subsidiary or into a voluntary arrangement between the Company or the Retained Subsidiary and their respective creditors; (g) the entering into any related party transactions or the payment of any monies or the undertaking to make such payments to any related party (other than to Mr. Yacov Neuwirth or Xxxxx Xxx Holdings Ltd. as contemplxxxx xxxxr Section 6.2.1(c) above), including the Sellers, the Excluded Subsidiaries or any of their affiliates; (h) the solicitation, negotiation of and/or acceptance of any financing offers by other Persons or the incurrence, assumption or guarantee of any debt for borrowed money and/or the creation, assumption or incurrence of any encumbrances on any material asset of the Company or the Retained Subsidiary; (i) (A) the entering into any option, employment, deferred compensation or other similar agreement (or the entering into any amendment to any such existing agreement) with any officer, director of the Company or the Retained Subsidiary or any Retained Employee; (B) an increase of the salary or benefits payable to the Retained Employees under any existing severance or termination pay policies or agreements; (C) the payment of or the provision for, any increase in compensation, bonus, or other benefits payable to Retained Employees, all except as required by the terms of contracts or agreements in effect on the date hereof; (j) a change of the accounting policies or practices of the Company or any Subsidiary. (k) the making of any payments to or incurring any liability towards or undertaking to make any material change in payment to any method third party, other than (a) incurring liabilities and making payments directly related to the costs of accounting or auditing practice, services provided by the Retained Business and (viiib) otherwise conduct their respective business or enter into any transaction, except in the usual and ordinary manner, or (ix) agree, whether or not in writing, to do settlement of any of the foregoingliabilities fully reflected in the Reviewed Balance Sheet; and (c) any other payments specifically pre-approved in writing by the Buyer. (l) negotiations with any Tax authorities and/or the filing of any Tax Returns, excluding the negotiations to be conducted by the Sellers pursuant to Section 6.3.4 and subject to the restrictions set forth therein. (m) the occurrence of any of the changes or events listed in Section 4.12 above.

Conduct of Business in the Ordinary Course. The Seller shall cause each of the Companies to conduct their its business only in the ordinary course. By way of amplification and not limitation, except as otherwise provided herein, the Seller shall cause the Companiesnot, without the prior written consent of the Buyer, not Purchaser: (a) issue or cause to do be issued any of Seller's partnership interest, or any options, warrants, or other rights to subscribe for or purchase any of Seller's partnership interest, or any securities convertible into or exchangeable for Seller's partnership interest; (b) declare, set aside, or make any payments or distributions to partners, whether in cash, stock or other securities, other than payment of RMW's current salary and related benefits, or otherwise make any distributions, including payment of intercompany debts and management fees, directly or indirectly, of any property of Seller; (c) directly or indirectly redeem, purchase or other- wise acquire any of Seller's partnership interests; (d) amend its certificate or partnership agreement; (e) grant any increase in the following: compensation payable or to become payable to its officers or salaried employees (iinclud- ing any salary, bonus, insurance, pension or other benefit plan, payment or arrangement made to, for or with any of such officers or employees); (f) except in the ordinary course of business borrow or agree to borrow any material amount of funds funds; directly or incurred any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise), or indirectly guarantee or agree to guarantee any obligations of others; or, except in the ordinary course of business, incur any obligation or liability; (iig) cancel any indebtedness owing except in the ordinary course of business, place or suffer to exist on any of them or any claims that any of them might possess, waive any material rights of substantial value or sell, lease, encumber, transfer or otherwise dispose of, or agree to sell, lease, encumber, or otherwise dispose of their respective assets or permit any of their respective assets to be subjected to the Assets any mortgage, pledge, lien, security interest, encumbrance, restriction or charge of any kind, (iii) make any capital expenditure or commitment therefor, (iv) declare or pay any dividend or make any distribution on any shares of their respective capital stock, or redeem, purchase or otherwise acquire any shares of their respective capital stock or any option, warrant or other right to purchase or acquire any such shares, encumbrance; (vh) increase their respective indebtedness for borrowed money or make any loan to any Person, (vi) write off as uncollectible any notes or accounts receivable, except write-offs in the ordinary course of business charged to applicable reservesbusiness, (vii) make cancel any material change in indebtedness owing to Seller or any method claims which Seller may have possessed, or waive any material rights of accounting substantial value, or auditing practice, discharge or satisfy any material non-current Liabilities; (viiii) otherwise conduct their respective business or enter into any transactionagreement, contract or commitment which, if entered into prior to the date of this Agreement, would be required to be listed on a Schedule delivered to Purchaser pursuant to the terms of, or in connection with, this Agreement, or modify, amend or terminate any agreement required to be listed in any such Schedule (j) sell or otherwise dispose of any of the Assets, except in the usual and ordinary mannercourse of business; (k) commit any act or omit to do any act which would cause a material breach of any agreement, contract or commitment which is listed on a Schedule delivered to Purchaser pursuant to the terms of, or in connection with, this Agreement, or which would have an adverse affect on business, financial condition or earnings of Seller; (ixl) agreeviolate any law, statute, rule, governmental regulation or order, which violation might have an adverse effect on the business, financial condition or earnings of Seller; (m) fail to maintain its books, accounts and records on a basis consistent with that heretofore employed; or (n) fail to pay, or to make provisions adequate for the payment of, all taxes (current or deferred), interest pay- ments and penalties (whether or not reflected in writingits returns as filed) due and payable (and/or accruable for all periods to the Closing Date, including that portion of its fiscal year to do and including the Closing Date) to any city, county, state, foreign country, the United States or any other taxing authority. Notwithstanding the foregoing provisions of this paragraph 5.03, Purchaser and the Subsidiary acknowledge and agree: a. Seller is currently experiencing a severe shortage of cash to meet the obligations of Seller arising in the normal course of the foregoingBusiness, and failure by Seller to satisfy any obligation attributable to such shortage of cash shall not be a violation of the covenants stated above, and b. Seller has historically and regularly challenged various regulatory agencies concerning their interpretation of tax and other laws, rules and regulations, and any such position taken by Seller shall not be a violation of the covenants stated in this Section 5.03, unless such position is taken in bad faith.

Conduct of Business in the Ordinary Course. The Seller Each member of Holding's consolidated group shall cause each of the Companies to conduct their its business only in the ordinary course. By way of amplification course consistent with past practices, and not limitation, except as otherwise provided herein, the Seller shall cause the Companiesnot, without the prior written consent of the Buyerchief executive officer of Whitney or his duly authorized designee: (a) except as set forth in proviso to this Section 5.08(a), not declare, set aside, increase or pay any dividend, or declare or make any distribution on, or directly or indirectly combine, redeem, reclassify, purchase, or otherwise acquire, any shares of its capital stock or authorize the creation or issuance of or issue any additional shares of its capital stock or any securities or obligations convertible into or exchangeable for its capital stock, other than in connection with the issuance of shares of Holding Common Stock pursuant to do any the exercise of Holding Stock Options outstanding as of the following: date of this Agreement; provided, that solely in the event that all conditions set forth in subparagraphs (ia), (b), (c) borrow and (d) of Section 6.01 and Section 6.02 hereof (except for conditions that are intended to be satisfied on the Closing Date) have been satisfied prior to March 15, 2006 but the Closing does not occur in March 2006 solely as a result of the requirements set forth in the first sentence of Section 1.02, Holding shall be permitted to declare and pay a cash dividend to the shareholders of record of Holding as of March 31, 2006 in an amount equal to $0.1625 per share of Holding Common Stock outstanding on such record date. (b) amend its articles of incorporation or agree association or by-laws or adopt or amend any resolution or agreement concerning indemnification of its directors or officers; (c) enter into or modify any agreement so as to borrow any material amount of funds require the payment, conditionally or incurred any liability or obligation otherwise, of any nature salary, bonus, additional employee benefits, extra compensation (whether accrued, absolute, contingent including payments for unused vacation or otherwisesick time), pension or guarantee or agree to guarantee any obligations of others, (ii) cancel any indebtedness owing severance payment to any of them its present or former directors, officers or employees except such agreements as are terminable at will without any claims that penalty or other payment by it, or increase the compensation (including salaries, fees, bonuses, profit sharing, incentive, pension, retirement or other similar benefits and payments) of any such person in any manner inconsistent with its past practices; (d) except in the ordinary course of business consistent with past practices, place or suffer to exist on any of them might possess, waive any material rights of substantial value or sell, lease, encumber, transfer or otherwise dispose of, or agree to sell, lease, encumber, or otherwise dispose of their respective its assets or permit any of their respective assets to be subjected to properties any mortgage, pledge, lien, security interest, charge or other encumbrance, restriction or charge except those of any kind, the character described in clauses (iiii) make any capital expenditure or commitment therefor, through (iv) declare of subsection 3.09(a) hereof, terminate or pay allow to be terminated any dividend of the policies of insurance it maintains on its business or make property, cancel any distribution on material indebtedness owing to it or any shares of their respective capital stockclaims that it may have possessed, or redeemwaive any right of substantial value or discharge or satisfy any material noncurrent liability; (e) acquire another business or merge or consolidate with another entity, purchase or sell or otherwise acquire any shares dispose of their respective capital stock or any option, warrant or other right to purchase or acquire any such shares, (v) increase their respective indebtedness for borrowed money or make any loan to any Person, (vi) write off as uncollectible any notes or accounts receivablea material part of its assets or, except write-offs in the ordinary course of business charged consistent with past practices; (f) commit any act that is intended or reasonably may be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Mergers set forth in Section 6 not being satisfied, or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable reserveslaw; (g) commit or fail to take any act which act or omission is intended or reasonably may be expected to result in a material breach or violation of any applicable law, statute, rule, governmental regulation or order; (viih) fail to maintain its books, accounts and records in the usual manner on a basis consistent with that heretofore employed; (i) fail to pay, or to make adequate provision in all material respects for the payment of, all taxes, interest payments and penalties due and payable (for all periods up to the Effective Date, including that portion of its fiscal year to and including the Effective Date) to any city, county, state, the United States or any other taxing authority, except those being contested in good faith by appropriate proceedings and for which sufficient reserves have been established; (j) dispose of investment securities in amounts or in a manner inconsistent with past practices; or make investments in noninvestment grade securities or that are inconsistent with past investment practices; (k) enter into any new line of banking or nonbanking business in which it is not actively engaged as of the date of this Agreement; (i) charge off (except as may otherwise be required by law or by regulatory authorities or by GAAP consistently applied) or sell (except in the ordinary course of business consistent with past practices) any of its portfolio of loans, discounts or financing leases, or (ii) sell any asset held as other real estate or other foreclosed assets for an amount materially less than 100% of its book value; (m) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed any member of Holding's consolidated group's applicable regulatory lending limits; (n) make any material change in any method of to its accounting methods, principles, practices, policies or auditing practice, (viii) otherwise conduct their respective business or enter into any transactionprocedures, except in as required by GAAP or the usual and ordinary manner, FDIC; (o) take or cause to be taken any action that would disqualify the Mergers as a "reorganization" within the meaning of Section 368(a) of the Code; or (ixp) agree, whether agree or not in writing, commit to do any of the foregoing.

Conduct of Business in the Ordinary Course. The Seller shall cause each Since the date of the Companies to conduct their business only in the ordinary course. By way of amplification Year-End Financial Statements, and not limitation, except as otherwise provided herein, the Seller shall cause the Companies, without the prior written consent disclosed in Section 4.11 of the BuyerDisclosure Letter, not to do Seller has not: (a) incurred, assumed or guaranteed any of the following: (i) borrow obligation or agree to borrow any material amount of funds or incurred any liability or obligation of any nature Liability (whether accrued, absolute, contingent or otherwise), ) in relation to the Business or guarantee or agree to guarantee any obligations of others, (ii) cancel any indebtedness owing to affecting any of them the Purchased Assets, except for normal trade or any claims that business obligations incurred in the Ordinary Course, none of which has had or will be material to the Business or Purchased Assets; (b) sold, assigned, transferred, leased or otherwise disposed of any of them might possessthe Purchased Assets, waive except for the sale of Inventory in the Ordinary Course; (c) transferred, assigned or granted any license or sublicense of any material rights with respect to any Intellectual Property; (d) created any Encumbrance upon any of substantial value the Purchased Assets, except the Permitted Encumbrances; (e) entered into any transaction or sell, lease, encumber, transfer Contract related to the Business or otherwise dispose ofthe Purchased Assets except in the Ordinary Course; (f) terminated or waived any rights or claims constituting a Purchased Asset, or agree cancelled or written-off Accounts Receivable, debts or other amounts payable to sellSeller related to the Business, leaseexcept in Ordinary Course; (g) materially modified, encumberaccelerated or terminated any Assumed Contract or Authorization, or otherwise dispose permitted any Authorization to lapse or terminate; (h) made any material write-down of their respective the value of the assets of the Business or permit the Purchased Assets (including Inventory), except in the Ordinary Course; (i) suffered any of their respective assets to be subjected to material damage, destruction or loss, or any mortgagematerial interruption in use, pledge, lien, security interest, encumbrance, restriction or charge of any kindPurchased Assets, whether or not covered by insurance; (iiij) make any capital expenditure or commitment therefor, (iv) declare or pay any dividend or make any distribution on any shares of their respective capital stock, or redeem, purchase or otherwise acquire any shares of their respective capital stock or any option, warrant or other right to purchase or acquire any such shares, (v) increase their respective indebtedness for borrowed money or make any loan to any Person, (vi) write off as uncollectible any notes or accounts receivable, except write-offs in the ordinary course of business charged to applicable reserves, (vii) make made any material change in the method of billing customers of the Business or the credit terms made available to customers of the Business; (k) made any material change with respect to any method of or accounting in respect of the Business; (l) increased any form of compensation or auditing practiceother benefits payable or to become payable to any of the Transferred Employees, including any increase of change pursuant to any Benefit Plan; or (viiim) authorized, agreed or otherwise conduct their respective business or enter into any transaction, except in the usual and ordinary manner, or (ix) agree, whether or not in writing, became committed to do any of the foregoing.

Conduct of Business in the Ordinary Course. The Seller Each of Old Florida and its Subsidiaries shall cause each of the Companies to conduct their its business only in the ordinary course. By way of amplification course consistent with past practices, and not limitation, except as otherwise provided herein, the Seller shall cause the Companiesnot, without the prior written consent of the BuyerChief Executive Officer of Bancshares or his duly authorized designee: (a) declare, not set aside, or pay any dividend, or declare or make any distribution on, or directly or indirectly combine, redeem, reclassify, purchase, or otherwise acquire, any shares of its capital stock or authorize the creation or issuance of or issue any additional shares of its capital stock or any securities or obligations convertible into or exchangeable for its capital stock other than in connection with the issuance of shares of Old Florida Common Stock pursuant to do any the exercise of Stock Options outstanding as of the following: date of this Agreement to purchase Old Florida Common Stock. (ib) borrow amend its Articles of Incorporation or agree Bylaws or adopt or amend any resolution or agreement concerning indemnification of its directors or officers; (c) enter into or modify any agreement so as to borrow any material amount of funds require the payment, conditionally or incurred any liability or obligation otherwise, of any nature salary, bonus, extra compensation (whether accrued, absolute, contingent including payments for unused vacation or otherwisesick time), pension or guarantee or agree to guarantee any obligations of others, (ii) cancel any indebtedness owing severance payment to any of them its present or former directors, officers or employees except such agreements as are terminable at will without any claims that penalty or other payment by it, or increase the compensation (including salaries, fees, bonuses, profit sharing, incentive, pension, retirement or other similar benefits and payments) of any such person in any manner inconsistent with its past practices; (d) except in the ordinary course of business consistent with past practices, place or suffer to exist on any of them might possess, waive any material rights of substantial value or sell, lease, encumber, transfer or otherwise dispose of, or agree to sell, lease, encumber, or otherwise dispose of their respective its assets or permit any of their respective assets to be subjected to properties any mortgage, pledge, lien, security interest, charge or other encumbrance, restriction or charge except those of any kind, the character described in clauses (iiii) make any capital expenditure or commitment therefor, through (iv) declare or pay any dividend or make any distribution on any shares of their respective capital stockSubsection 3.09(a) hereof, or redeemcancel any material indebtedness owing to it or any claims which it may have possessed, purchase or waive any right of substantial value or discharge or satisfy any material noncurrent liability; (e) acquire another business or merge or consolidate with another entity, or sell or otherwise acquire any shares dispose of their respective capital stock or any option, warrant or other right to purchase or acquire any such shares, (v) increase their respective indebtedness for borrowed money or make any loan to any Person, (vi) write off as uncollectible any notes or accounts receivablea material part of its assets or, except write-offs in the ordinary course of business charged consistent with past practices; (f) commit any act that is intended or reasonably may be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Mergers set forth in Section 6 not being satisfied, or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable reserveslaw; (g) commit or fail to take any act which act or omission is intended or reasonably may be expected to result in a material breach or violation of any applicable law, statute, rule, governmental regulation or order; (viih) fail to maintain its books, accounts and records in the usual manner on a basis consistent with that heretofore employed; (i) fail to pay, or to make adequate provision in all material respects for the payment of, all taxes, interest payments and penalties due and payable (for all periods up to the Effective Date, including that portion of its fiscal year to and including the Effective Date) to any city, county, state, the United States or any other taxing authority, except those being contested in good faith by appropriate proceedings and for which sufficient reserves have been established; (j) dispose of investment securities in amounts or in a manner inconsistent with past practices; or make investments in noninvestment grade securities or which are inconsistent with past investment practices; (k) enter into any new line of banking or nonbanking business in which it is not actively engaged as of the date of this Agreement; (l) charge off (except as may otherwise be required by law or by regulatory authorities or by GAAP consistently applied) or sell (except in the ordinary course of business consistent with past practices) any of its portfolio of loans, discounts or financing leases, or sell any asset held as other real estate or other foreclosed assets for an amount materially less than 100% of its book value at the date of the Latest Balance Sheet; (m) make any material change in extension of credit which, when added to all other extensions of credit to a borrower and its affiliates, would exceed any method of accounting Old Florida and its Subsidiaries’ applicable regulatory lending limits; (n) take or auditing practice, (viiicause to be taken any action that would disqualify either of the Mergers as a “reorganization” within the meaning of Section 368(a) otherwise conduct their respective business or enter into any transaction, except in of the usual and ordinary manner, Code; or (ixo) agree, whether agree or not in writing, commit to do any of the foregoing.