Conduct of Business of Seller. During the period from the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with the terms set forth in ARTICLE VIII (the “Interim Period”), Seller shall, except as expressly contemplated by this Agreement or as required by applicable Law or with the prior written consent of Buyer, conduct its business in the ordinary course of business consistent with past practice, and, to the extent consistent therewith, Seller shall use its commercially reasonable efforts to preserve substantially intact its business organization, keep available the services of its current officers and employees, and preserve its present relationships with customers, suppliers, distributors, licensors, licensees, and other Persons having business relationships with it. Without limiting the generality of the foregoing, between the date of this Agreement and the Closing Date, Seller shall not, without the prior written consent of Buyer:
(a) amend or propose to amend its Charter Documents;
(b) acquire, by merger, consolidation, acquisition of stock or assets, or otherwise, any business or Person or division thereof or make any loans, advances or capital contributions to or investments in any Person;
(c) transfer, license, sell, lease or otherwise dispose of (whether by way of merger, consolidation, sale of stock or assets, or otherwise) or pledge, encumber or otherwise subject to any Encumbrance (other than a Permitted Encumbrance), any Purchased Assets; provided that the foregoing shall not prohibit Seller from transferring, selling, leasing or disposing of obsolete equipment or assets being replaced, in each case in the ordinary course of business consistent with past practice;
(d) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for, the obligations of any Person, or make any loans or advances, in each case in excess of $50,000 and affecting the Business or the Purchased Assets, except for any indebtedness that is an Excluded Liability; provided, however, no such indebtedness, guaranty or other obligation shall be secured by any interest of any kind in the Purchased Assets;
(e) enter into any Material Contract;
(f) amend, waive, modify in any material respect or in a manner adverse to the Business or the Purchased Assets or consent to the termination of any Assumed Contract, or amend, waive, modify in any material respect or in a mann...
Conduct of Business of Seller. During the period from the date of this Agreement to the Closing Date, the Stockholders will, jointly and severally, cause Seller to, and Seller will, conduct its operations only in the Ordinary Course of Business of Seller (including managing their working capital in accordance with its past practice and custom) and use their respective reasonable best efforts to: (a) preserve intact its business organizations, (b) keep available the services of its officers and employees and (c) maintain its relationships and goodwill with licensors, suppliers, distributors, customers, landlords, employees, agents and others having business relationships with any of them or the Business. Seller will confer with Purchaser concerning operational matters of a material nature and report periodically to Purchaser concerning the Business of Seller, operations and finances of Seller. Without limiting the generality or effect of the foregoing, prior to the Closing Date, except with the prior written consent of Purchaser, Seller will not, and the each Stockholder will cause Seller not to:
(a) Amend or modify their certificates of incorporation or bylaws from their respective forms on the date of this Agreement;
(b) Change any salaries or other compensation of, or pay any bonuses to any director, officer, employee or stockholder of Seller, or enter into any employment, severance, or similar agreement with any director, officer, stockholder or employee of Seller, PROVIDED, HOWEVER, that the compensation of employees of Seller receiving annual compensation of less than $70,000 may be changed in the Ordinary Course of Business of Seller;
(c) Except as contemplated by Sections 8.5(d) and 8.5(e), adopt or increase any benefits under any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with any of its employees;
(d) Except as contemplated by Section 8.14, enter into any contract or commitment except contracts and commitments (for capital expenditures or otherwise) in the Ordinary Course of Business of Seller (and in any case not exceeding the dollar amounts with respect to specified categories of Contracts in Section 6.1.12);
Conduct of Business of Seller. During the period between the Effective Date and continuing until the earlier of termination of this Agreement or the Closing, Seller and Seller’s Owners agree (except to the extent that Buyer shall otherwise consent in writing, which consent shall be made in Buyer’s sole and absolute discretion) to carry on its business in the usual, regular and ordinary course in substantially the same manner as it is currently being conducted and use all reasonable efforts consistent with past practices and policies to preserve in tact its present business organization. Without limiting the generality of the foregoing, without the prior written consent of Buyer (which consent shall be made in Buyer’s sole and absolute discretion), Seller shall not:
(a) sell, pledge, lease, dispose of, grant, encumber or otherwise authorize the sale, pledge, disposition, grant or encumbrance of any Purchased Asset;
(b) incur any further debt, accounts receivable, indebtedness, commitments, or other such liability; or
(c) enter into a contract to do any of the foregoing, or authorize or announce an intention to do any of the foregoing.
Conduct of Business of Seller. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date Seller agrees, except to the extent that Parent will otherwise consent in writing, to carry on Seller’s business in the ordinary course of business consistent with past practice. Without limiting the foregoing, Seller shall use commercially reasonable efforts to (i) preserve intact its current business organization, (ii) keep available the services of its current officers and employees, (iii) maintain its relations and good will with all suppliers, customers, landlords, creditors, employees and other Persons having business relationships with Seller and (iv) maintain, and make all necessary filings for the preservation of, all Seller IP.
Conduct of Business of Seller. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Article IX or the Closing, Seller agrees (except (a) for the termination of up to twenty (20) employees of Seller or its Affiliates with respect to the Business on or before the Filing Date, as previously disclosed to Buyer, (b) as necessitated by the Bankruptcy Case, or (c) to the extent that Buyer otherwise consents in writing) to carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay its post-petition debts and Tax when due, to pay or perform other post- petition obligations when due, and, to the extent consistent with such business, to use all reasonable efforts consistent with past practice and policies to preserve intact the Transferred Assets, keep available the services of the Current Employees and preserve their relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, all with the goal of preserving its goodwill and ongoing businesses at the Closing. Seller shall promptly deliver written notice to Buyer of any material event or occurrence or emergency not in the ordinary course of its business, and any material event involving the Business.
Conduct of Business of Seller. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, Seller agrees, except to the extent that Buyer shall otherwise consent in writing, to carry on the Business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, to pay the debts and Taxes of Seller when due, to pay or perform other obligations when due, and, to the extent consistent with the Business, use commercially reasonable efforts consistent with past practice and policies to preserve intact Seller's present business organizations, keep available the services of the officers and key employees of the Business and preserve the relationships of the Business with customers, suppliers, distributors, licensors, licensees, and others having business dealings with the Business, in all material respects, all with the goal of preserving unimpaired the goodwill and ongoing business of the Business at the Closing. Seller shall promptly notify Buyer of any event or occurrence or emergency not in the ordinary course of business of Seller and any material event involving Seller that could adversely affect the performance of Seller's obligations under this Section 4.
1. Except as expressly contemplated by this Agreement, Seller shall not without the prior written consent of Buyer take any action that, at the time of taking such action, would result in the material breach of the representation and warranty contained in Section 2.9.
Conduct of Business of Seller. Except as required by any Order of the Bankruptcy Court (it being understood that Seller shall refrain from seeking any authorization from the Bankruptcy Court to take any actions outside the ordinary course of business consistent with past practice or otherwise in noncompliance with this Section 8.12, without the prior consent of Purchaser, which shall not be unreasonably withheld, conditioned or delayed), as required by applicable Law, or as otherwise consented to in writing by Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), during the period commencing on the date of this Agreement and continuing through the Closing or the earlier termination of this Agreement in accordance with its terms, Seller shall use its commercially reasonable efforts to:
(i) operate the Business in the ordinary course of business, consistent with past practice, (ii) preserve in all material respects the Purchased Assets (excluding sales of Inventory in the ordinary course of business) and (iii) preserve its current relationships with the suppliers, vendors, customers, clients, contractors and others having business dealings with the Business; provided that each of clauses (i) through (iii) above shall take into account, in each case, the commencement of the Bankruptcy Case and the fact that the Business is operating while in bankruptcy.
Conduct of Business of Seller. Except as contemplated by this Agreement, during the period from the date of this Agreement to the Closing Date, Seller will conduct the Brooklyn Business and its operations according to its ordinary and usual course of business, to use its best efforts to preserve substantially intact the Brooklyn Business and to use its best efforts to preserve its current relationships with customers, employees, suppliers and other persons with which it has significant business relations. Without limiting the generality of the foregoing, and, except as otherwise expressly provided in this Agreement, prior to the Closing Date, without the prior written consent of Purchaser, Seller will not:
(a) sell, transfer, or otherwise dispose of any of the properties or assets (real, personal or mixed, tangible or intangible) of the Brooklyn Business, other than in the ordinary course of business and consistent with past practice;
(b) terminate, enter into or amend in any material respect any contract, agreement, lease, license or commitment necessary for the operation of the Brooklyn Business, or take any action or omit to take any action which will cause a breach, violation or default (however defined) under any such items, except in the ordinary course of business and consistent with past practice;
(i) enter into any contract, commitment or arrangement exceeding $10,000 in value for the Brooklyn Business other than for acquisition of Inventory for the Brooklyn Business entered into in the ordinary course of business and consistent with past practice or (ii) enter into sales orders for the Brooklyn Business other than those which are entered into in the ordinary course of business and consistent with past practice or (iii) enter into acquisitions of Assets unrelated to the Brooklyn Business other than those which are in the ordinary course of business and consistent with past practice and not exceeding $10,000 in connection with any contract, commitment or arrangement, or (iv) enter into other sale orders except those which are individually less than $250,000 and on arms length terms and conditions; provided no single sales order or related sales orders is in excess of $250,000, such consent not to be unreasonably withheld or delayed;
(d) otherwise effect any change in its condition (financial or other), properties, assets, liabilities, business, operations or prospects except changes in the ordinary course of its business and consistent with its past practice and which do not, ei...
Conduct of Business of Seller. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing Date, Seller agrees (except to the extent expressly contemplated by this Agreement or as consented to in writing by Seller), to carry on its business in the ordinary course consistent with Seller's past practice. Without limiting the foregoing, Seller further agrees to pay or perform other obligations when due, and to use all reasonable efforts consistent with past practice and policies to preserve intact its present business organizations, keep available the services of its present officers and key Employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees and others having material business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Closing Date. Seller agrees to promptly notify Buyer of any event or occurrence not in the ordinary course of its business consistent with past practice, or which could reasonably be expected to have a Material Adverse Effect.
Conduct of Business of Seller. During the period from the date hereof and continuing until the earlier of the termination of this Agreement or the Closing, Seller shall carry on the Business in the usual, regular and ordinary course in substantially the same manner as conducted prior to the date of this Agreement and, to the extent consistent with such Business, use its best efforts to the end that none of the Assets shall be impaired at the Closing. Seller shall promptly notify Buyer and Parent of any material event or occurrence not in the ordinary course of business of Seller, and any event that could reasonably be expected to have a material and adverse effect on any of the Assets.
