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Common use of Conduct of Business Prior to the Closing Date Clause in Contracts

Conduct of Business Prior to the Closing Date. The LLC and the --------------------------------------------- Subsidiaries agree that from the date hereof and prior to the Closing Date, and except (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreement: (a) the business of the LLC and the Subsidiaries shall be conducted in the ordinary course; (b) no change shall be made in the Articles of Organization or Operating Agreements of the Subsidiaries; (c) neither the LLC nor the Subsidiaries shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the Subsidiaries; (d) neither the LLC nor the Subsidiaries will take, agree to take, or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiaries contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to any of the Subsidiaries; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severance.

Appears in 2 contracts

Samples: Membership Interest Contribution Agreement (Cornerstone Realty Income Trust Inc), Membership Interest Contribution Agreement (Cornerstone Realty Income Trust Inc)

Conduct of Business Prior to the Closing Date. The LLC and the --------------------------------------------- Subsidiaries agree that from Between the date hereof and prior to the Closing Date, and except (i) as set forth unless Univision otherwise consents in Schedule 6.4 heretowriting, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this AgreementLMA expressly requires otherwise, the Entravision Parties shall: (a) Operate the business of the LLC and the Subsidiaries shall be conducted Entravision Stations in the ordinary coursecourse of business and otherwise conduct the business thereof in all material respects in accordance with the terms or conditions of its FCC Licenses, the Rules and Regulations, the Act and all other applicable Laws having jurisdiction over any aspect of the operation of the Entravision Stations or the Sale Assets; (b) no change shall be made in the Articles of Organization or Operating Agreements Use commercially reasonable efforts to maintain reasonably adequate insurance upon all of the SubsidiariesSale Assets to be transferred by it hereunder, in a manner consistent with such insurance existing on the date hereof; (c) neither the LLC nor the Subsidiaries shall enter into nor terminateNot mortgage, amend, release pledge or modify subject any Material Contract concerning the operations or assets of the SubsidiariesSale Assets to any Lien other than a Permitted Lien; (d) neither the LLC nor the Subsidiaries will takeNot sell, lease or otherwise dispose of, or agree to takesell, lease or otherwise dispose of, any Sale Assets, other than in the ordinary course of business; (e) Not amend or terminate any Material Contract that would be included in the Sale Assets at the Closing; (f) Not enter into any new Material Contract that would be included in the Sale Assets at the Closing (provided that, for purposes of this clause (f), the applicable threshold with respect to clause (i) of the definition of Material Contract, shall be $25,000 instead of $10,000); (g) Not settle or compromise any material claims or litigation related to the Sale Assets or the Entravision Stations (except with respect to the Actions set forth in Item 4 on Schedule 2.1(d)), or do anything cancel any material debts or waive any material claims or rights of material value related to, the Sale Assets or the Entravision Stations; (h) Maintain the material Sale Assets in good repair and condition, ordinary wear and tear excepted, and use, operate, maintain and repair, and replace if damaged beyond repair or worn out with an asset of equal or greater value, material Sale Assets in the conduct ordinary course consistent with past practice, in all material respects; (i) Maintain, preserve, renew and keep in full force and effect all material licenses, permits and authorizations that pertain to the operation of its business which would be contrary the Entravision Stations (including the FCC Licenses); prepare, timely file and prosecute the Renewal Applications; upon request, provide complete copies of the Renewal Applications to Univision; promptly respond to all requests for information from the FCC with respect to the Renewal Applications, and air all renewal pre-filing and post-filing announcements as required by the Rules and Regulations; (j) Not introduce any material change with respect to the operation of the Entravision Stations including, without limitation, any material changes in the broadcast hours of the Entravision Stations or any other material change in the Entravision Stations’ programming policies, except such changes as in the sole discretion of the Entravision Parties, exercised in good faith after consultation with the Univision Parties, are required by the public interest; (k) Promptly notify the Univision Parties of any Action commenced or threatened in writing against the Entravision Stations, including any opposition against or petition to deny any Renewal Application, or any material damage to or in material breach destruction of any material assets included or to be included in the Sale Assets; (l) Promptly provide the Univision Parties with copies of all material correspondence and inquiries to and from, and all filings made with, the FCC or any other Governmental Entity with respect to the Sale Assets and the Entravision Stations, including all correspondence with respect to any pending Renewal Application and notify the Univision Parties regarding any oral inquiries from the FCC regarding any such Renewal Application; (m) Confer with the Univision Parties prior to implementing operational decisions of a material nature, and otherwise, upon request, report periodically to the Univision Parties, concerning the Sale Assets and the Entravision Stations and its business, operations and finances; (n) Not knowingly take any action that could reasonably be expected to cause the conditions set forth in Article VI not to be satisfied as of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiaries contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to any of the SubsidiariesClosing Date; and (eo) Except for Not enter into any plan of the indebtedness set forth on Schedule 6.4(etype described in Section 3.19(b), the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severance.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Univision Communications Inc), Asset Purchase Agreement (Entravision Communications Corp)

Conduct of Business Prior to the Closing Date. The LLC Seller covenants and the --------------------------------------------- Subsidiaries agree agrees with Purchaser that from the date Effective Date hereof and prior to through the Closing Date, and except as otherwise expressly contemplated in this Agreement, unless Purchaser otherwise consents in writing (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such which consent or approval shall not to be unreasonably withheld, conditioned or delayed) or (iii) Seller shall, and shall cause the Operators in their capacities as required by this Agreementthe operators of the Facilities to: (a) Use good faith efforts to operate the Facilities in all material respects in the ordinary course of business in a commercially reasonable manner, including (i) incurring expenses consistent with the Seller Parties’ past practices in the operation of the LLC Facilities and (ii) using commercially reasonable efforts to preserve the present business operations of each Facility and the Subsidiaries applicable goodwill and relationships with customers, employees, advertisers, suppliers and other contractors related to each Facility. (b) Operate the Facilities and otherwise conduct business in all material respects in accordance with the terms or conditions of all applicable licenses and permits, all applicable rules and regulations of the State of Missouri, and all other rules, regulations, laws, and orders of all governmental authorities having jurisdiction over any aspect of the operation of the Facilities and all applicable insurance requirements; provided, however, that the foregoing shall be conducted not impose on Seller any obligation to make unbudgeted capital improvements or repairs, or to incur any cost or expense in order to comply with any of the foregoing to the extent a Seller Party was not in compliance as of the Effective Date, except to the extent a Seller Party is ordered to do so by a governmental authority having jurisdiction over the Seller Parties. (c) Maintain the books, records, and financial statements of the Seller Parties consistent with past practices. (d) Timely comply in all material respects with all contracts and agreements with third-parties related to the operation of the Facilities. (e) Not sell, lease, grant any rights in or to or otherwise dispose of or otherwise relinquish control of, or agree to sell, lease or otherwise dispose of, the Purchased Property in whole or in part except for Residency Agreements entered into in the ordinary course;, dispositions of assets that are in the ordinary course of business, and if material, are replaced by similar assets of substantially equal or greater value and utility. (bf) no change shall be made Take commercially reasonable efforts to maintain the Purchased Property in the Articles of Organization or Operating Agreements same condition as it exists as of the Subsidiaries;Effective Date, except for ordinary wear and tear, in a manner consistent with past practices. (cg) neither the LLC nor the Subsidiaries shall Not default on any loans to Seller which are not fully cured or satisfied at Closing. (h) Not enter into nor terminateany material contracts outside the ordinary course of business (other than contracts approved by Purchaser or Residency Agreements in the ordinary course of business); provided that Seller shall not enter into any contract which would survive Closing and be binding on the Purchaser or represent a financial obligation of any Operator in excess of in excess of $10,000 per year (other than Residency Agreements in the ordinary course of business), amendwhether or not material, release without the consent of Purchaser as provided above. (i) Not make any alterations or modify improvements to the Real Property or make any Material Contract concerning capital expenditure with respect to the operations Real Property in excess of $10,000 other than those that are currently budgeted for completion, or assets are required by law, necessary to preserve the coverage under or comply with the terms of any insurance policy with respect to the Purchased Property or are in Seller’s business judgment necessary to address emergency conditions or to maintain the goodwill and competitive standing of the Subsidiaries;Business. (dj) neither Maintain normal levels of inventory and supplies on hand for each Facility (including medical supplies, food, beverages, office and kitchen supplies), consistent with past practices and as necessary to comply with applicable laws and regulations. (k) Make available to Purchaser copies of all internally generated monthly financial reports. (l) Inform Purchaser promptly regarding the LLC nor resignation, termination or hiring of the Subsidiaries will takeExecutive Director or Assistant Director, agree to takeif any, or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiaries contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to any of the Subsidiaries; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severanceFacility.

Appears in 1 contract

Samples: Asset Purchase Agreement (American Realty Capital Healthcare Trust II, Inc.)

Conduct of Business Prior to the Closing Date. The LLC Seller covenants and the --------------------------------------------- Subsidiaries agree that agrees that, except as expressly provided in this Agreement or as otherwise approved by Buyer in writing, at all times from the date hereof and prior to through the Closing Date, and except (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreementthat: (a) Seller shall and shall cause the business of Company to: (i) execute the LLC Contribution Agreement and comply with the Subsidiaries shall be conducted terms and conditions thereof; (ii) keep, operate and maintain in all material respects the Acquired Assets in the ordinary coursecourse of business in accordance with industry standards and all applicable Environmental Laws; (iii) except for matters undertaken in the ordinary course of business and pursuant to the Contribution Agreement, not to dispose of any interest in any of the Acquired Assets or take any action (including the entry into any new contract, agreement or instrument) the taking of which, or omit to take any action the omission of which, would reasonably be expected to (x) cause a Lien to arise with respect to any of the Acquired Assets (other than Permitted Liens) or (y) bind Buyer or the Company in a manner that would reasonably be expected to require capital expenditure to be made by Buyer or the Company; and (iv) carry, maintain and continue in full force through the Closing, all fire, casualty, property, theft, environmental and other insurance policies currently maintained by the Company or it Affiliates for the Acquired Assets. In the event the Acquired Assets, or any portion thereof, are damaged by fire, explosion or other unavoidable casualty and Seller or the Company receives insurance proceeds on account of such event, Seller shall, and agrees to cause and direct the Company to, use either such proceeds to purchase and/or construct replacement assets for the Acquired Assets that were so damaged or destroyed or assign the right to such proceeds to Buyer at Closing. (b) no change Seller shall be made in not permit or allow the Articles of Organization or Operating Agreements of the SubsidiariesCompany to: (i) amend its Organizational Documents; (cii) neither liquidate, dissolve, recapitalize or otherwise wind up its business; (iii) merge or consolidate with, or purchase substantially all of the LLC nor assets or business of, or equity interests in, or make an investment in any Person; (iv) incur any Indebtedness, except for intracompany loans and debt incurred in connection with Seller’s and its Affiliates credit facilities or Indebtedness incurred in the Subsidiaries shall ordinary course of business consistent with past practice, provided, all such Indebtedness is terminated at or prior to the Closing; (v) issue or sell any equity interests, notes, bonds or other securities of the Company, or any option, warrant or right to acquire same; (vi) adopt any profit sharing, compensation, savings, insurance, pension, retirement or other benefit plan or otherwise hire any employees; (vii) enter into nor terminateany Contract, amendexcept for Contracts entered into by the Company in the ordinary course of business or as contemplated by this Agreement; (viii) create or assume any Lien, other than a Permitted Lien; (ix) terminate or close any facility, business or operation relating to the Acquired Assets; (x) file any material lawsuit with respect to the Acquired Assets; (xi) cancel, compromise, waive, release or modify settle any Material Contract concerning right, claim or lawsuit with respect to the operations or assets Acquired Assets other than immaterial rights and claims in the ordinary course of the Subsidiariesbusiness; (dxii) neither enter into any transactions with the LLC nor the Subsidiaries will takeSeller or its Affiliates, agree except as contemplated by this Agreement; (xiii) acquire, commence or conduct any activity or business that may generate income for federal income tax purposes that may not be “qualifying income” (as such term is defined pursuant to take, or do anything in the conduct of its business which would be contrary to or in material breach of any Section 7704 of the terms or provisions Code); (xiv) take any action that would reasonably be expected to result in any representation and warranty of Seller set forth in this Agreement, or which would cause any of the representations of the LLC or the Subsidiaries contained herein to be or become Agreement becoming untrue in any material respect respect; or (xv) agree, whether in writing or which would result in a Material Adverse Effect otherwise, to do any of the Subsidiaries; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severanceforegoing.

Appears in 1 contract

Samples: Purchase and Sale Agreement (SemGroup Energy Partners, L.P.)

Conduct of Business Prior to the Closing Date. The LLC Seller covenants and the --------------------------------------------- Subsidiaries agree that from the date hereof and prior to the Closing Dateagrees that, and except (i) to the extent Purchaser shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed), (ii) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer Part 6.1 of the Operating Partnership (such consent or approval not to be unreasonably withheld) Seller Disclosure Schedule, or (iii) as required permitted or contemplated by this AgreementAgreement or the Ancillary Agreements, Seller shall: (a) cause the business of the LLC and the Subsidiaries shall Vuforia Business to be conducted in the ordinary course; (b) no change shall be made in use commercially reasonable efforts to preserve intact the Articles of Organization or Operating Agreements of Purchased Assets and the SubsidiariesVuforia Business; (c) neither the LLC nor the Subsidiaries shall enter into nor terminatenot sell, amendlease, release license, transfer or modify otherwise dispose of any Material Contract concerning the operations or assets of the SubsidiariesPurchased Assets, except in the ordinary course of business or pursuant to existing contractual obligations; (d) neither the LLC nor the Subsidiaries will takenot create, agree assume or suffer to take, exist any lien or do anything in the conduct of its business which would be contrary to or in material breach of encumbrance on any of the terms Purchased Assets, other than Permitted Encumbrances; (e) not abandon or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiaries contained herein permit to be or become untrue in lapse any material respect or which Transferred Intellectual Property rights; (f) not implement any layoffs of Vuforia Business Employees that would result implicate the WARN Act; (g) except for normal increases in a Material Adverse Effect the ordinary course of business, not increase the base salary payable to any of the SubsidiariesVuforia Business Employee; and (eh) Except not amend the certificate of incorporation or bylaws or similar organizational document of the Swiss Subsidiary; (i) maintain insurance coverage for the indebtedness set forth Vuforia Business at levels substantially consistent with presently existing levels and take no action that has the intentional effect of reducing the amount of insurance available or potentially available to Seller or the Vuforia Business; (j) not amend or terminate any Material Contract or enter into any contract that would be a Material Contract, unless such new Material Contract requires future payments to Seller or the Swiss Subsidiary in excess of $250,000 in any calendar year for the sale of goods, equipment, supplies, products or other personal property, or for the provision of services; (k) not enter into any compromise or settlement of any Legal Proceeding that is primarily related to the Vuforia Business or Seller, except for any such compromise or settlement that (A) does not impose any restrictions on Schedule 6.4(e)the Vuforia Business, (B) involves a settlement solely of the Subsidiaries payment of monetary damages of $250,000 or less (unless such cash payment shall be made by Seller prior to the Closing and for which the Vuforia Business shall not incur have a financial obligation following the Closing) and (C) does not involve an admission of liability, provided that the aggregate amount of any indebtedness for borrowed money, prepay and all such compromises and settlements shall not exceed $250,000; and (l) not agree or commit to take any outstanding indebtedness for borrowed moneys on a "term loan" basis of the foregoing actions (except for scheduled payments or required pre-payments of outstanding debtthe affirmative obligations under subclauses (a), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract (b) and (i) of any employee or contractor or accrue any liability beyond the Closing Date for severance.this Section 6.1

Appears in 1 contract

Samples: Asset Purchase Agreement (PTC Inc.)

Conduct of Business Prior to the Closing Date. The LLC Transferor, with respect to the Sale Assets being conveyed by it, hereby covenants and the --------------------------------------------- Subsidiaries agree agrees that from between the date hereof and prior to the Closing Date, unless the Transferee otherwise agrees in writing (which agreement shall not be unreasonably withheld or delayed) and except (i) as otherwise set forth in Schedule 6.4 heretothe LMAs, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreementshall: (a) the business Use commercially reasonable efforts to maintain insurance upon all of the LLC Sale Assets in such amounts and of such kind to cover the Subsidiaries shall be conducted in full amount of any loss with respect to such Sale Assets and with respect to the ordinary courseoperation of the Applicable Stations, with insurers of substantially the same or better financial condition as are currently insuring such Sale Assets; (b) no change shall be made Operate the Applicable Stations and otherwise conduct its business in all material respects in accordance with the Articles terms or conditions of Organization or Operating Agreements its FCC Licenses, the Rules and Regulations, the Act and all other rules and regulations, statutes, ordinances and orders of all governmental authorities having jurisdiction over any aspect of the Subsidiariesoperation of the Applicable Stations, except where the failure to so operate would not constitute a Material Adverse Condition or on the ability of Transferor to consummate the transactions contemplated hereby; (c) neither the LLC nor the Subsidiaries shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the SubsidiariesComply in all material respects with all Station Agreements Transferee is assuming; (d) neither the LLC nor the Subsidiaries will take, agree to takePromptly notify Transferee of any default by, or do anything in the conduct claim of its business which default against, any party under any Station Agreements Transferee is assuming and any event or condition which, with notice or lapse of time or both, would be contrary to or in material breach constitute an event of any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiaries contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to any of the Subsidiaries; anddefault under such Station Agreements; (e) Except for Not mortgage, pledge or subject any of the indebtedness set forth on Schedule 6.4(e)Sale Assets to any Lien other than a Permitted Lien; (f) Not sell, the Subsidiaries shall not incur any indebtedness for borrowed moneylease or otherwise dispose of, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or nor agree to adopt sell, lease or otherwise dispose of, any new employee benefit plan of the Sale Assets; (g) Not amend or terminate any Station Agreement; (h) Not introduce any material change with respect to the operation of the Applicable Stations including, without limitation, any material changes in the broadcast hours of the Applicable Stations or any other material change in the Applicable Stations’ programming policies, except such changes as in the sole discretion of Transferor, exercised in good faith after consultation with Transferee, are required by applicable law or terminate the employment or contract public interest; (i) Notify Transferee of any employee complaints, investigations, hearing or contractor any material litigation pending or accrue threatened against the Applicable Stations or any liability beyond material damage to or destruction of any assets included or to be included in the Closing Date for severanceSale Assets.

Appears in 1 contract

Samples: Asset Exchange Agreement (Salem Communications Corp /De/)

Conduct of Business Prior to the Closing Date. The LLC From and the --------------------------------------------- Subsidiaries agree that from after the date hereof until the earlier of the Closing Date or the termination of this Agreement in accordance with the terms of Section 9 hereof, Sellers shall maintain the Purchased Assets and prior operate and carry on the Business only in the Ordinary Course of Business, except as otherwise expressly required by this Agreement or with the express written consent of Purchaser. Consistent with the foregoing and to the Closing Dateextent not prohibited by the Bankruptcy Case, and except Sellers shall use commercially reasonable efforts to (i) continue operating the Business as set forth in Schedule 6.4 heretoa going concern, (ii) otherwise consented maintain the Purchased Assets and the assets and properties of, or used by, Sellers relating to or ------------ approved by an authorized officer of the Operating Partnership Business in their current condition (such consent or approval not to be unreasonably withheld) or ordinary wear and tear excepted), (iii) as required by this Agreement: (a) maintain the business organization of the LLC Business intact, (iv) maintain the Documents of the Business, (v) comply with all Legal Requirements, and (vi) preserve the Subsidiaries goodwill of the manufacturers, suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Business. In connection therewith, Sellers shall be conducted not (1) offer employment for any period on or after the Closing Date to any employee or agent of the Business regarding whom Purchaser makes offers of employment in accordance with the terms set forth herein, (2) otherwise attempt to persuade any such employee or agent to terminate his or her relationship with the Business, (3) offer new material offsets, reductions or discounts to Accounts Receivable, (4) incur any additional Indebtedness outside of the Sellers’s ordinary course of business operations, (5) increase the compensation, incentive arrangements or other benefits to any officer or employee outside the Ordinary Course of Business, (6) redeem, purchase or otherwise acquire directly or indirectly any of its issued outstanding capital stock, or any outstanding rights or securities exercisable or exchangeable for or convertible into its capital stock, (7) enter into any transaction, arrangement or Contract with any Person except on an arm’s length basis in the ordinary course; Ordinary Course of Business, (b) no change shall be made 8) purchase, sell, lease or dispose of any Purchased Assets other than in the Articles Ordinary Course of Organization Business, (9) delay or Operating Agreements postpone the payment of accounts payable or other Liabilities Outside the Subsidiaries; Ordinary Course of Business, (c10) neither permit the LLC nor the Subsidiaries shall loss, lapse or abandonment of, or transfer, assign, enter into nor terminateor grant any license or sublicense of any rights under or with respect to any Intellectual Property, (11) amend, release terminate or modify any Material Contract concerning the operations or assets of the Subsidiaries; Assumed Contracts, (d12) neither the LLC nor the Subsidiaries will takediscontinue, agree to takeclose or dispose of any plant, facility or other business operation, or do anything in lay off any employees or implement any early retirement or separation program, or any program providing early retirement window benefits within the conduct meaning of its business which would be contrary to or in material breach of any Section 1.401 (a)(4)-3(f)(4)(ii) of the terms Treasury Regulations or provisions of this Agreement, announce or which would cause plan any of the representations of the LLC such action or the Subsidiaries contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to any of the Subsidiaries; and (e) Except program for the indebtedness set forth on Schedule 6.4(e)future, the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law 13) hire employees or terminate the employment or contract of any employee other than for “cause” or contractor in the Ordinary Course of Business, or accrue any liability beyond (14) fail to maintain the Closing Date for severancematerial plant, property and equipment of Sellers in good repair and operating condition in all material respects, ordinary wear and tear excepted.

Appears in 1 contract

Samples: Asset Purchase Agreement (Soupman, Inc.)

Conduct of Business Prior to the Closing Date. The LLC and During the --------------------------------------------- Subsidiaries agree that period from the date hereof of this Agreement and prior continuing until the earlier of the time the Parties have determined that all conditions to close have not or cannot be satisfied or waived or the Closing Date, Seller agrees to carry on the Business in the Ordinary Course in substantially the same manner as heretofore conducted, to pay the debts and except (i) Taxes of Seller when due, to pay or perform other obligations when due, and, to the extent consistent with such business, use all reasonable efforts consistent with past practice and policies to preserve intact Seller's present business organization, keep available the services of Seller's present officers and employees and preserve Seller's relationships with customers, suppliers, distributors, licensors, licensees and others having business dealings with it, all with the goal of preserving unimpaired Seller's goodwill and ongoing Business at the Closing Date. Except as set forth expressly contemplated in Schedule 6.4 heretothis Agreement, (ii) otherwise consented to or ------------ approved by an authorized officer after the date of this Agreement and continuing until the earlier of the Operating Partnership (such time the Parties have determined that all conditions to close have not or cannot be satisfied or waived or the Closing Date, Seller will not, without the prior written consent or approval not to be unreasonably withheld) or (iii) as required by this Agreementof Buyer: (a) other than performing the business of the LLC and the Subsidiaries shall be conducted Material Contracts listed in the ordinary courseSchedule 2.10 in accordance with their terms existing on the date hereof and as otherwise permitted or contemplated hereby, make any expenditure or enter into any transaction exceeding $10,000; (b) no change shall be made sell, license or transfer to any Person or entity any rights to any Intellectual Property or enter into any agreement with respect to the Intellectual Property with any Person or entity other than in the Articles of Organization or Operating Agreements of the SubsidiariesOrdinary Course; (c) neither revalue any of its assets, including without limitation writing down the LLC nor value of items on its balance sheets or writing off notes or accounts receivable other than in the Subsidiaries shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the SubsidiariesOrdinary Course; (d) neither grant any severance or termination pay (i) to any director or officer or (ii) to any employee, except payments made pursuant to standard written agreements outstanding as of the LLC nor date hereof and disclosed on the Subsidiaries will take, agree to takeSchedules, or do anything in increase the conduct salary or other compensation payable or to become payable by Seller to any of its business which would be contrary officers, directors, employees or advisors, or declare, pay or make any commitment or obligation of any kind for the payment by Seller of a bonus or other additional salary or compensation to any such Person, or in material breach adopt or amend any employee benefit plan or enter into any employment contract; (e) sell, lease, license or otherwise dispose of any of the terms assets or provisions properties of this AgreementSeller relating to the Business or the Purchased Assets other than in the Ordinary Course, including but not limited to the performance of obligations under contractual arrangements existing as of the date hereof set forth on the Schedules, or which would cause create any security interest in such assets or properties; (f) grant any loan, guarantee or other extension of credit, or enter into any commitment to make any loan, guaranty or other extension of credit, to any Person or entity except for accounts receivable in the Ordinary Course, incur any indebtedness or guarantee any indebtedness except for accounts payable incurred in the Ordinary Course, issue or sell any debt securities, guarantee any debt securities of others, purchase any debt securities of others or amend the terms of any outstanding agreements related to borrowed money, except for expenses in the Ordinary Course; (g) amend in any respect or otherwise modify (or agree to do so), or violate the terms of any of the representations Material Contracts set forth or described in Schedule 2.10 or enter into any contract which would constitute a Material Contract; (h) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities or, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Business; (i) pay, discharge or satisfy, in an amount in excess of $10,000 (in any one case) or $25,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of liabilities in the Ordinary Course; (j) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the LLC limitation period applicable to any claim or assessment in respect of Taxes; (k) terminate any employees of the Subsidiaries contained herein Business other than for cause or encourage any employees of the Business to resign from Seller; (l) enter into any contract, purchase order or other agreement pursuant to which Seller would be required to book any amounts due thereunder as deferred revenue; (m) take or become untrue agree in any material respect writing or which would result in a Material Adverse Effect otherwise to take any of the Subsidiaries; andactions described in the preceding clauses (a) through (l) of this section or in clause (n) or (o) of this section or any other action that would prevent Seller from performing or cause Seller not to perform its covenants and agreements hereunder; (en) Except declare, issue, make or pay any dividend or other distribution of assets, whether consisting of money, other personal property, real property or other thing of value, to its shareholders, or split, combine, dividend, distribute or reclassify any shares of its capital stock; or (o) make any loan by Seller to any officer, director, employee or stockholder of Seller or enter into any other agreement or commitment to or for the indebtedness set forth on Schedule 6.4(e), the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any officer, director, employee or contractor stockholder or accrue any liability beyond the Closing Date for severanceof their respective Affiliates.

Appears in 1 contract

Samples: Asset Purchase Agreement (NTN Communications Inc)

Conduct of Business Prior to the Closing Date. The LLC From and the --------------------------------------------- Subsidiaries agree that from after the date hereof and prior to until the Closing Date, and except (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to Date or ------------ approved by an authorized officer earlier termination of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreement, Seller shall: (a) Carry on the business of Business in substantially the LLC and the Subsidiaries shall be conducted in the ordinary coursesame manner as it has heretofore been conducted; (b) no change shall be made Maintain and keep the Assets in as reasonable condition and repair, reasonable wear and tear excepted, as the Articles of Organization or Operating Agreements condition and repair the Assets are in as of the Subsidiariesdate hereof; (c) neither the LLC nor the Subsidiaries shall enter into nor terminateNot sell, amendlease, release pledge, mortgage or modify otherwise dispose of or encumber any Material Contract concerning the operations or assets of the Subsidiaries;Assets except for the sale, lease, pledge, mortgage or disposal or encumbrance of any of the Assets, including Inventory, in the ordinary course of business which would not, individually or in the aggregate, be material to the operation of the Business. (d) neither Perform all of its obligations under the LLC nor Customer Contracts, the Subsidiaries will takeaccepted Miscellaneous Contracts and Assigned Leases; (e) Not (i) enter into any contract outside the ordinary course of business, agree (ii) modify or change any material contract, (iii) cancel any debts or waive any claims or rights where such cancellation or waiver would reasonably be expected to takehave a material adverse effect, or do anything (iv) make any loan to, or enter into any business transaction, agreement, arrangement or understanding of any other nature with, any employee of the Business or any officer or director of the Seller, the Parent or any affiliate or associate of any such officer or director; (f) Not (i) grant any increases in the conduct of its business which would be contrary to wages, salaries or in material breach benefits of any of the Seller Employees except increases in the ordinary course of business in accordance with the Seller’s existing policies, (ii) enter into any employment agreements with respect to any employees of the Business, (iii) pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing plan, agreement or arrangement to any officer or employee of the Business, whether past or present, or (iv) with respect to the Seller’s Employees, commit to any additional pension, profit-sharing, bonus, incentive, deferred compensation, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or to any employment or consulting agreement with or for the benefit of any Seller Employee, or to terminate or amend any of such plans or any of such agreements in existence on the date of this Agreement; (g) Not take any action that would prevent the transfer of the Assets to the Buyer at the Closing, pursuant to the terms or provisions of this Agreement, or which would cause any free and clear of all Liens; (h) Maintain its books, accounts and records with respect to the representations of Business and the LLC or Assets in the Subsidiaries contained herein usual, regular and ordinary manner, and comply with all Laws; (i) Keep and maintain all permits in full force and effect, continue their business pursuant to be or become untrue such permits and take all steps necessary to meet requirements on pending applications for permits; (j) Continue to operate and maintain the Business and the Assets in any material respect or which would result in a Material Adverse Effect to any of the Subsidiariesaccordance with applicable Laws; and (ek) Except for Use commercially reasonable efforts consistent with sound business judgment to preserve intact its present business and organization, to retain the indebtedness set forth on Schedule 6.4(e)services of its present employees, to preserve its relationships with its customers, suppliers and others having business relationships with it. Buyer acknowledge that Seller has engaged the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments services of outstanding debt), or adopt or agree Vango to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severancemanage and operate Seller’s Business.

Appears in 1 contract

Samples: Asset Purchase Agreement (Youthstream Media Networks Inc)

Conduct of Business Prior to the Closing Date. The LLC and During --------------------------------------------- the --------------------------------------------- Subsidiaries agree that period from the date hereof to the Closing Date (or as to any applicable Liberty Media Group Asset, the applicable date of contribution of such asset pursuant to Section 2.9 or 2.10), except as permitted or otherwise contemplated by this Agreement, Liberty Media Corporation, Stockholder, AGI and prior Liberty AGI will not, without the consent of Liberty Media Group LLC (which shall not be unreasonably withheld), enter into any agreement that is in conflict with the terms of this Agreement and Liberty Media Corporation and each Person included in the Additional Liberty Media Group Assets, AGI and Liberty AGI will, unless otherwise consented to by Liberty Media Group LLC, use its commercially reasonable efforts to preserve the current relationships of Liberty Media Corporation, such Person, AGI and Liberty AGI with its customers, suppliers and other Persons with which it has significant business relationships and to keep available the services of its key employees. During the period from the occurrence of a Triggering Event to the Closing Date, except as permitted or otherwise contemplated by this Agreement or consented to in writing by Liberty Media Group LLC (or as approved by a majority of the Incumbent Directors of Liberty Media Corporation prior to the occurrence of a Triggering Event), Liberty Media Corporation will not take, or commit to take, any of the following actions (and except Stockholder, AGI and Liberty AGI will not permit any Person included in the Additional Liberty Media Group Assets, the AGI Assets or the Liberty AGI Assets, as applicable, to take or commit to take any such action): (i) as set forth in Schedule 6.4 hereto, amend its charter documents or bylaws; (ii) otherwise consented merge or consolidate, or obligate itself to do so, or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) liquidated or dissolved; (iii) as required by this Agreement: (a) the business issue or sell any shares of the LLC and the Subsidiaries shall be conducted in the ordinary course; (b) no change shall be made in the Articles of Organization capital stock, partnership interests, participations or Operating Agreements of the Subsidiaries; (c) neither the LLC nor the Subsidiaries shall enter into nor terminate, amend, release other equity or modify ownership interests or any Material Contract concerning the operations or assets of the Subsidiaries; (d) neither the LLC nor the Subsidiaries will take, agree to take, or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiaries contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect rights relating to any of the Subsidiariesforegoing; andprovided that in the -------- ordinary course of business, Liberty Media Corporation may incorporate new wholly owned subsidiaries for the purpose of the operation of its business as presently conducted or proposed to be conducted; (eiv) Except for enter into any new lines of business outside of the indebtedness business as conducted or proposed to be conducted at such time; (v) conduct its business other than in a manner consistent with past practices or enter into any material transactions outside the ordinary course of business (as such business is presently conducted or proposed to be conducted); (vi) change its accounting methods, principles or practices in any material respect; (vii) declare, set forth on Schedule 6.4(e)aside or pay any dividend or equity distribution (whether in cash, stock, property or any combination thereof) in respect of its capital stock; (A) establish any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing or other employee benefit plan, or materially increase the Subsidiaries shall not compensation payable or to become payable to any officers or employees, except in any case in the ordinary course of business consistent with past practice or as may be required by law, or (B) establish or increase any stock option, unit appreciation, stock purchase or other equity-based plan; (ix) incur any indebtedness for borrowed money, prepay except in the ordinary course of business; (x) enter into, or make any outstanding indebtedness for borrowed moneys on a "term loan" basis offers to enter into, any partnership or joint venture with any third party if any consent of any Person is required (that has not been obtained in connection with the formation of such new partnership or joint venture) in order to effect the transfer of the interest in such partnership or joint venture to Liberty Media Group LLC pursuant to this Agreement; (xi) transfer or lease to any third party any assets used in connection with its operations, except for scheduled payments any such transfer or required pre-payments lease (a) made in the ordinary course of outstanding debt), business consistent with past practice or adopt (b) with respect to which such assets have been or agree to adopt any new employee benefit plan will be replaced with assets of at least equal value performing comparable functions; or (xii) except as required specifically provided for by applicable law the Firewall Agreement, enter into any transactions with Parent or terminate its Affiliates that are not on terms as least as favorable to Liberty Media Corporation (or such Person included in the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severanceAdditional Liberty Media Group Assets) as could be obtained from an unaffiliated third party.

Appears in 1 contract

Samples: Contribution Agreement (Liberty Media Corp /De/)

Conduct of Business Prior to the Closing Date. The LLC Seller covenants and the --------------------------------------------- Subsidiaries agree that agrees that, except as expressly provided in this Agreement or as otherwise approved by Buyer in writing, at all times from the date hereof and prior to through the Closing Date, and except (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreementthat: (a) the business of the LLC Seller shall and shall cause K.C. Asphalt and the Subsidiaries shall be conducted Company to: (i) execute the Contribution Agreement and comply with the terms and conditions thereof; (ii) keep, operate and maintain in all material respects the Acquired Assets in the ordinary coursecourse of business in accordance with industry standards, past operating and maintenance practices and all applicable Environmental Laws; (iii) except for matters undertaken in the ordinary course of business and pursuant to the Contribution Agreement, not to dispose of any interest in any of the Acquired Assets or take any action (including the entry into any new contract, agreement or instrument) the taking of which, or omit to take any action the omission of which, would reasonably be expected to (x) cause a Lien to arise with respect to any of the Acquired Assets (other than Permitted Liens) or (y) bind Buyer or the Company in a manner that would reasonably be expected to require capital expenditures in excess of One Million Dollars ($1,000,000); and (iv) carry, maintain and continue in full force through the Closing, all fire, casualty, property, theft, environmental and other insurance policies currently maintained by the Company or it Affiliates for the Acquired Assets. In the event the Acquired Assets, or any portion thereof, are damaged by fire, explosion or other unavoidable casualty and Seller, K.C. Asphalt or the Company receives insurance proceeds on account of such event, Seller shall, and agrees to cause and direct K.C. Asphalt and the Company to, use either such proceeds to purchase and/or construct replacement assets for the Acquired Assets that were so damaged or destroyed or assign the right to such proceeds to Buyer at Closing. (b) no change Seller shall be made in not permit or allow the Articles of Organization or Operating Agreements of the SubsidiariesCompany to: (i) amend its Organizational Documents; (cii) neither liquidate, dissolve, recapitalize or otherwise wind up its business; (iii) merge or consolidate with, or purchase substantially all of the LLC nor assets or business of, or equity interests in, or make an investment in any Person; (iv) incur any Indebtedness, except for intracompany loans and debt incurred in connection with Parent’s and its Affiliates credit facilities or Indebtedness incurred in the Subsidiaries shall ordinary course of business consistent with past practice, provided, all such Indebtedness is terminated at or prior to the Closing; (v) issue or sell any equity interests, notes, bonds or other securities of the Company, or any option, warrant or right to acquire same; (vi) adopt any profit sharing, compensation, savings, insurance, pension, retirement or other benefit plan or otherwise hire any employees; (vii) enter into nor terminateany Contract, amendexcept for Contracts entered into by the Company in the ordinary course of business or as contemplated by this Agreement; (viii) create or assume any Lien, other than a Permitted Lien; (ix) terminate or close any facility, business or operation relating to the Acquired Assets; (x) file any material lawsuit with respect to the Acquired Assets; (xi) cancel, compromise, waive, release or modify settle any Material Contract concerning right, claim or lawsuit with respect to the operations or assets Acquired Assets other than immaterial rights and claims in the ordinary course of the Subsidiariesbusiness; (dxii) neither enter into any transactions with the LLC nor the Subsidiaries will takeSeller Entities or their respective Affiliates, agree except as contemplated by this Agreement; (xiii) acquire, commence or conduct any activity or business that may generate income for federal income tax purposes that may not be “qualifying income” (as such term is defined pursuant to take, or do anything in the conduct of its business which would be contrary to or in material breach of any Section 7704 of the terms or provisions Code); (xiv) take any action that would reasonably be expected to result in any representation and warranty of Seller set forth in this Agreement, or which would cause any of the representations of the LLC or the Subsidiaries contained herein to be or become Agreement becoming untrue in any material respect respect; or (xv) agree, whether in writing or which would result in a Material Adverse Effect otherwise, to do any of the Subsidiaries; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severanceforegoing.

Appears in 1 contract

Samples: Purchase and Sale Agreement (SemGroup Energy Partners, L.P.)

Conduct of Business Prior to the Closing Date. The LLC 5.01 Conduct of Business by the Companies and Parent. During the --------------------------------------------- Subsidiaries agree that period from the date hereof of this Agreement and prior continuing until the earlier of the valid termination of this Agreement pursuant to its terms and the Closing, except to the Closing Dateextent that Parent (in the case of a request by CAG on behalf of the Companies or the Company Subsidiaries) or CAG (in the case of a request by Parent on behalf of itself or the Parent Subsidiaries) shall otherwise consent in writing (which consent shall not be unreasonably withheld, and except (i) conditioned or delayed), or as set forth in Schedule 6.4 hereto5.01 of the Company Disclosure Schedule or the Parent Disclosure Schedule (“Schedule 5.01”), or in connection with COVID-19 Measures or Permitted Actions, or as otherwise explicitly contemplated by this Agreement or the other Transaction Documents, or required pursuant to a Legal Requirement, each of the Companies, the Company Subsidiaries, Parent and the Parent Subsidiaries shall use its reasonable best efforts to carry on its business in the usual, regular and ordinary course consistent with past practices and in compliance with all applicable Legal Requirements and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business and operations and goodwill, (ii) otherwise consented to or ------------ approved by an authorized officer keep available the services of its respective present key officers and employees and (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings. In addition, during the period from the date of this Agreement and continuing until the earlier of the Operating Partnership valid termination of this Agreement pursuant to its terms or the Closing, except to the extent that Parent (such in the case of a request by CAG on behalf of the Companies or the Company Subsidiaries) or CAG (in the case of a request by Parent on behalf of itself or the Parent Subsidiaries) shall otherwise consent or approval in writing (which consent shall not to be unreasonably withheld, conditioned or delayed) or (iii) as required set forth in Schedule 5.01, or in connection with COVID-19 Measures or Permitted Actions, or as otherwise explicitly contemplated by this AgreementAgreement or the other Transaction Documents, or required pursuant to a Legal Requirement, none of the Companies, the Company Subsidiaries, Parent or the Parent Subsidiaries shall do any of the following: (a) waive any stock repurchase rights, accelerate, amend or change the business period of exercisability of options or restricted stock, or reprice options granted under any employee, consultant, director or other stock plans or authorize cash payments in exchange for any options granted under any of such plans, excluding cash payments to residents of the LLC and the Subsidiaries shall be conducted PRC for CAG Options settled in the ordinary coursecash; (b) no change shall be grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable Legal Requirement, written agreements outstanding, or Company Plans or Company policies or Parent Plans or Parent policies, as applicable, existing on the date hereof and as disclosed or made available on or prior to the date hereof to the other Party, or in the Articles of Organization or Operating Agreements case of the Companies and Company Subsidiaries, except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice; (c) neither the LLC nor the Subsidiaries shall enter into nor terminatetransfer or license to any Person or otherwise extend, amend, release amend or modify any Material Contract concerning material rights to any material Intellectual Property or enter into grants to transfer or license to any Person future Intellectual Property rights, other than in the operations or assets ordinary course of the Subsidiariesbusiness consistent with past practice; (d) neither declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (other than any such dividend or distribution by a Company Subsidiary to a Company or another such Company Subsidiary or by a Parent Subsidiary to Parent or another such Parent Subsidiary), or reclassify, combine, split, subdivide, or redeem any capital stock or issue or authorize the LLC nor issuance of any other securities in respect of, in lieu of or in substitution for any capital stock (other than the Subsidiaries will takeconsolidation of Parent’s share capital contemplated by the Parent Shareholder Matters); (e) purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock or any other equity securities or ownership interests of any Company or Company Subsidiary or Parent or Parent Subsidiary, as applicable; (f) issue, deliver, sell, authorize, pledge, amend, exchange, settle or otherwise encumber, or agree to takeany of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or do anything subscriptions, rights, warrants or options to acquire any shares of capital stock (other than in connection with the exercise of the CAG Options) or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities of any Company or Company Subsidiary or Parent or Parent Subsidiary; (g) amend any Charter Documents in any material respect; (h) acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire outside the ordinary course of business any assets which are material, individually or in the conduct aggregate, to the business of its the Company Group, taken as a whole, or Parent and the Parent Subsidiaries, taken as a whole, as applicable. For purposes of this paragraph, “material” includes the requirement that, as a result of such transaction, financial statements of the acquired, merged or consolidated entity be included in the Notice of Meeting; (i) except in the ordinary course of business which would be contrary consistent with past practice, enter into any joint ventures, strategic partnerships or alliances or other arrangements that provide for exclusivity of territory or otherwise restrict such Party’s ability to compete or to offer or sell any products or services to other Persons; (j) sell, lease, license, encumber or otherwise dispose of any properties or assets, except (i) nonexclusive licenses or sales in the ordinary course of business consistent with past practice, (ii) the incurrence of Permitted Liens, (iii) pursuant to existing Company Contracts delivered or made available to Parent, and (iv) the sale, lease or disposition of property or assets that are not material, individually or in material breach the aggregate, to the business of the Company Group, taken as a whole, or of Parent and the Parent Subsidiaries, taken as a whole, as applicable; (k) adopt a plan of, or otherwise enter into or effect a, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Companies, the Company Subsidiaries, Parent or the Parent Subsidiaries (other than the as contemplated by this Agreement and the Transactions); (l) incur, create, assume, refinance or forgive any indebtedness for borrowed money in excess of $1,000,000 or guarantee any such indebtedness of another Person or Persons, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of the Companies or the Company Subsidiaries or of Parent or the Parent Subsidiaries, as applicable, enter into any “keep well” or other agreement to maintain any financial statement condition, or enter into any arrangement having the economic effect of any of the terms foregoing, in each case, except the Parent Loan and, in the case of the Companies and the Company Subsidiaries, (i) extensions of credit in the ordinary course with employees and among the Companies and Company Subsidiaries, (ii) loans or provisions advances to channel partners in the ordinary course of business, (iii) indebtedness refinanced in the same or lesser amount as of the date hereof, and (iv) indebtedness incurred following the date hereof that results in a total amount of indebtedness that is less than or equal to the sum of the aggregate amount of indebtedness as of the date hereof plus $1,000,000; (m) except as otherwise required by applicable Legal Requirement or pursuant to an existing Company Plan, Company Contract or Company policy (provided such document has been made available to Parent) or pursuant to an existing Parent Plan, Parent Contract or Parent policy (provided such document has been made available to CAG), as applicable, (i) adopt or materially amend any such plan (including any such plan that provides for severance), or enter into any employment contract, except in connection with the promotion, hiring, or firing of any employee in the ordinary course of business consistent with past practice, or collective bargaining agreement, (ii) pay any special bonus or special remuneration to any director or employee, except in the ordinary course of business consistent with past practice, or (iii) materially increase the salaries or wage rates or fringe benefits (including rights to severance or indemnification) of its directors, officers, employees or consultants, except in the ordinary course of business consistent with past practice; (n) (i) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), or Action (whether or not commenced prior to the date of this Agreement), other than the payment, discharge, settlement or satisfaction of any claims, liabilities or obligations (A) in the ordinary course of business consistent with past practice or (B) that are covered by insurance, provided, in each case, such discharge, settlement or satisfaction involves only the payment of money damages and such amounts in the aggregate do not exceed $500,000, or (ii) waive the benefits of, agree to modify in any material manner, terminate, release any Person from or knowingly fail to enforce any material confidentiality or similar agreement to which would cause any Company or Company Subsidiary is a party or of which any Company or Company Subsidiary is a beneficiary (other than with customers and other counterparties in the ordinary course of business consistent with past practice) or to which Parent or any Parent Subsidiary is a party or of which Parent or any Parent Subsidiary is a beneficiary, as applicable; (o) except in the ordinary course of business consistent with past practice, enter into, modify in a manner materially adverse to the Companies and the Company Subsidiaries or Parent and the Parent Subsidiaries, as applicable, or terminate (other than in accordance with its terms) any Material Company Contract or Material Parent Contract, as applicable, or waive, delay the exercise of, release or assign any material rights or claims thereunder; (p) except as required by Legal Requirement, U.S. GAAP, or IFRS, as the case may be, revalue any of its assets in any material manner or make any material change in accounting methods, principles or practices; (q) make or rescind any Tax elections that, individually or in the representations of the LLC or the Subsidiaries contained herein aggregate, would be reasonably likely to be or become untrue adversely affect in any material respect the Tax liability or which would result in a Material Adverse Effect to Tax attributes of such Party, settle or compromise any material income tax liability outside the ordinary course of the Subsidiaries; and (e) Except for the indebtedness set forth on Schedule 6.4(e)business or, the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law law, change any material method of accounting for Tax purposes or terminate prepare or file any Tax Return in a manner materially inconsistent with past practice; (r) form or establish any subsidiary, except in the employment ordinary course of business consistent with past practice, or contract enter into any new line of business; (s) exercise, or permit the administrator of any employee Company Plan or contractor Parent Plan, as applicable, to exercise, any of its discretionary rights under any Company Plan or accrue Parent Plan, as applicable, to provide for the automatic acceleration of any liability beyond outstanding options, the Closing Date for severance.termination of any outstanding repurchase rights or the termination of any cancellation rights issued pursuant to such Plan, except as contemplated by this Agreement; (t) make capital expenditures (i) materially in excess of budgeted amounts previously disclosed to the other Party in writing or (ii) in excess of $1,000,000 in the aggregate; (u) enter into any material transaction with or distribute or advance any assets or property to any of its officers, directors, partners, equityholders, managers, members or other Affiliates, other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business consistent with prior practice and (ii) such transactions, distributions, or advancements by a Company Subsidiary to a Company or another Company Subsidiary or by a Parent Subsidiary to Parent or another Parent Subsidiary; or (v) agree in writing or otherwise agree or commit to take any of the actions described in Section 5.01(a) through (u) above. Notwithstanding anything in this Section 5.01 or this Agreement to the contrary, nothing set forth in this Agreement shall give Parent, directly or indirectly, the right to control or direct the operations of the Company or the Company’s Subsidiaries prior to the Closing, and nothing set forth in this Agreement shall give Company, directly or indirectly, the right to control or direct the operations of Parent or the Parent Subsidiaries prior to the Closing, and

Appears in 1 contract

Samples: Stock Purchase Agreement (NAKED BRAND GROUP LTD)

Conduct of Business Prior to the Closing Date. The LLC Company agrees that between the date of this Agreement and the --------------------------------------------- Effective Time, the Company will conduct, and cause its Subsidiaries agree that to conduct, the Business in the ordinary course of business consistent with past practice, except as expressly (i) required by this Agreement, (ii) set forth in Schedule 6.1 or (iii) approved by Parent in writing. Without limiting the foregoing, except as expressly required by this Agreement, from the date hereof and prior to through the Closing Date, and except (i) as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this AgreementEffective Time: (a) no change will be made in the business certificate of incorporation, bylaws, stockholders agreement or any other organizational document of the LLC and the Subsidiaries shall be conducted in the ordinary courseCompany or any Subsidiary; (b) no change shall will be made in the Articles number or dollar amount of Organization authorized or Operating Agreements issued capital stock or other equity interests of the Company or any of its Subsidiaries, including pursuant to any split, combination, subdivision or reclassification of any such capital stock or other equity interest (except for the exercise, expiration or forfeiture of any Conversion Options listed on Schedule 3.7 in accordance with their respective terms); nor will any option, warrant, call, right, commitment, conversion right, right of first refusal, pledge, hypothecation, or agreement of any character be granted or made by the Company or any of its Subsidiaries relating to the authorized or issued capital stock or other equity interest thereof; nor will the Company or any of its Subsidiaries issue, grant or sell any securities or obligations convertible into or redeem or purchase any capital stock or other equity interest of the Company or any of its Subsidiaries (except for the exercise of any stock options listed on Schedule 3.7 in accordance with their respective terms in effect on the date hereof); (c) each of the Company and its Subsidiaries will duly comply in all material respects with all Laws and Orders applicable to them and all Laws and Orders applicable to the transactions contemplated by this Agreement; (d) the Company and its Subsidiaries will not (i) incur any Indebtedness in addition to any Indebtedness outstanding on the date hereof or any renewals or extensions thereof, except for borrowings made in the ordinary course of business consistent with past practice under the Company’s revolving credit facility, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, except for the endorsement of checks for collection in the ordinary course of business, or (iii) make any loans, advances or capital contributions to, or investments in, any other Person, except in connection with normal relocations, travel advances or similar advances to employees of the Company or its Subsidiaries in the ordinary course of business consistent with past practice; (e) neither the LLC Company nor any of its Subsidiaries will (i) increase the compensation payable or to become payable to any officer or employee thereof except in the ordinary course of business consistent with past practice as part of regular annual reviews (provided, however, that the aggregate increase for all such officers and employees will not be greater than three percent (3%) of the current aggregate compensation payable by the Company and any of its Subsidiaries to all officers and employees), (ii) create, establish, enter into or terminate any bonus plan or other employee benefit plan or (iii) commit itself or any Employee Plan (A) to any additional pension, profit-sharing, bonus, incentive, deferred compensation, equity interest purchase, equity interest option, equity interest appreciation right, severance pay, retirement or any employee benefit plan, agreement or arrangement, or to any material employment or consulting agreement with or for the benefit of any person or (B) to amend in any material respect any Employee Plan, except as required by Law; (f) neither the Company nor any of its Subsidiaries will, except for sales of inventory in the ordinary course of business to the Company’s or its Subsidiaries’ customers, sell, transfer, mortgage, or otherwise dispose of, or encumber, or agree to sell, transfer, mortgage or otherwise dispose of or encumber, any properties, real, personal or mixed, tangible or intangible, which have a value on the consolidated books of the Company, either individually or in the aggregate, in excess of $500,000 and will not allow such properties to become subject to any Liens (other than Permitted Liens); (g) except as set forth on Schedule 6.1(g), neither the Company nor any of its Subsidiaries will make or commit to make any capital expenditure, capital addition or capital improvement in an amount exceeding $250,000 for any single Facility; (h) neither the Company nor any of its Subsidiaries will settle, cancel, compromise, release or provide a waiver with respect to any claims, actions or proceedings existing on or commenced after the date hereof and involving more than $500,000 individually or $2,500,000 in the aggregate; (i) neither the Company nor any of its Subsidiaries will make any payment that would be a breach of, or require disclosure under, Section 3.27 of this Agreement; (j) the Company will not declare or pay any dividends or distributions with respect to its capital stock or redeem any capital stock for cash or otherwise; provided, however, that the Parties acknowledge that certain of the Company’s Subsidiaries are not wholly-owned by the Company and such Subsidiaries are required by the terms of the organizational documents of such Subsidiaries to make distributions to their equityholders, such requirements and the estimated distributions prior to Closing being set forth on Schedule 6.1(j); (k) the Company and its Subsidiaries shall not make any acquisitions (including by merger, consolidation or acquisition of stock or assets or any other business combination) of (i) any corporation, partnership, other business organization or any division thereof or equity interests therein or a substantial portion of the assets thereof for consideration (including any potential “earn-outs” or other contingent or deferred consideration), or (ii) any real property (other than entering into leases in connection with the new restaurant locations identified on Schedule 6.1); (l) the Company and its Subsidiaries shall not adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization; (m) the Company and its Subsidiaries shall not make any changes in financial or tax accounting methods, principles or practices (or change an annual accounting period), except as may be required under GAAP or by applicable Law; (n) except as disclosed in Schedule 6.1(n), the Company and its Subsidiaries shall not make or change any material Tax elections, change any annual Tax accounting period, elect to adopt or change any method of accounting, amend any material Tax Return, enter into any closing agreement with respect to any material Tax, settle any material Tax claim or any assessment or surrender any right to claim a material Tax refund or extend or waive any applicable statute of limitations with respect to Taxes; (o) except as set forth on Schedule 6.1(g) or Schedule 6.1(o), neither the Company nor any of its Subsidiaries shall amend, modify, terminate, amendcancel or enter into any Material Contract; provided, release however, that the Company or any of its Subsidiaries may amend or modify any Material Contract concerning if such amendment or modification is reasonably required in connection with the operations or assets construction and establishment of the Subsidiaries; (d) neither the LLC nor the Subsidiaries will take, agree to take, or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC new stores described on Schedule 6.1 or the Subsidiaries contained herein to renovation projects described on Schedule 6.1, provided that the Company gives Parent prompt notice of such action, and provided further that such actions do not involve amounts in excess of $100,000 over the amounts on Schedule 6.1, Schedule 6.1(g) or Schedule 6.1(o), as applicable, for a single location without the prior consent of Parent, which consent will not be unreasonably withheld or become untrue in any material respect or which would result in a Material Adverse Effect to any of the Subsidiariesdelayed; and (ep) Except for neither the indebtedness set forth on Schedule 6.4(e), the Company nor any of its Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or will agree to adopt do any new employee benefit plan except as required by applicable law or terminate of the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severanceforegoing.

Appears in 1 contract

Samples: Merger Agreement (Darden Restaurants Inc)

Conduct of Business Prior to the Closing Date. The LLC and Each Seller agrees that, except as described in Section 6.1 of the --------------------------------------------- Subsidiaries agree that from Disclosure Schedule, between the date hereof and prior to the Closing Date, such Seller shall, and shall cause the Company and each of its Subsidiaries to, conduct its business in the Ordinary Course of Business in all material respects, to prepare, in the Ordinary Course of Business and consistent with past practice (except as otherwise required by Applicable Laws), and timely file all Tax Returns required to be filed by it on or before the Closing Date and to fully and timely pay all Taxes due and payable in respect of such Tax Returns that are so filed, and each use its reasonable best efforts to (i) preserve intact in all material respects its business organization, (ii) keep available the services of the Employees, and (iii) maintain the goodwill associated with the business of the Company and its Subsidiaries, including but not limited to preserving relationships with customers, vendors, lenders and others having material business relationships with the Company and its Subsidiaries. Except as contemplated by this Agreement and the Seller Documents, and except as set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer Section 6.1 of the Operating Partnership Disclosure Schedule, neither Seller, between the date hereof and the Closing, shall permit any of the Company or any of its Subsidiaries to (in each case, without the prior written consent of Buyer): i. issue any notes, bonds or other debt securities or other equity securities or any securities convertible, exchangeable, or exercisable into any ownership interests or other equity securities; ii. borrow any amount or incur or become subject to any Liabilities, except Current Liabilities incurred in the Ordinary Course of Business and Liabilities under Contracts entered into in the Ordinary Course of Business; iii. discharge or satisfy any Encumbrance or pay any obligation or Liability, other than Current Liabilities paid in the Ordinary Course of Business; iv. declare, set aside, or make any dividend, payment, or distribution of cash or other property to any of the holders of its ownership interests with respect to such consent ownership interests or approval purchase, redeem or otherwise acquire, directly or indirectly, any ownership interests or any outstanding rights or securities exercisable or exchangeable for or convertible into its ownership interests (including, without limitation, any warrants, options, or other rights to acquire its ownership interests); v. mortgage or pledge any of its assets or subject them to any Encumbrances; vi. sell, assign, lease, license, or transfer any of its tangible assets, except in the Ordinary Course of Business, or cancel any debts or claims; vii. sell, assign, lease, license, transfer, or otherwise encumber, other than in the Ordinary Course of Business, any of its Intellectual Property or other intangible assets, or disclose any material proprietary Confidential Information to any Person, or abandon or permit to lapse any of its Intellectual Property or other intangible assets, in either case material to its business; viii. suffer any extraordinary losses or waive any rights of material value, whether or not in the Ordinary Course of Business or consistent with past practice; ix. delay or postpone the payment of any accounts or commissions payable or any other liability or obligations or agree or negotiate with any party to be unreasonably withheldextend the payment date of any accounts or commissions payable or accelerate the collection of any notes, accounts or commissions receivable; x. make commitments for capital expenditures which have not been funded prior to the date hereof that aggregate in excess of $10,000; xi. make any charitable contributions or pledges; xii. suffer any damage, destruction, or casualty loss exceeding in the aggregate $10,000 (whether or not covered by insurance); xiii. except for salary or commission advances to Employees, make any loans or advances to, investment in, or guarantees for the benefit of, any Person or take steps to incorporate any Subsidiary; xiv. make any change in any method of accounting or accounting policies, other than those required by GAAP which have been disclosed in writing to Buyer; xv. enter into any employment or consulting contract (written or oral) or (iii) as required by this Agreement: (a) change the business employment terms for any Employee or agent or make or grant any bonus or any wage, salary, or compensation increase to any director, officer, Employee, sales representative, or group of Employees or make or grant any increase in any Company Plan or arrangement, or amend or terminate any existing Company Plan, incentive arrangement, or other benefit covering any of the LLC and Employees or adopt any new Company Plan, incentive arrangement or other benefit covering any of the Subsidiaries shall be conducted Employees; xvi. enter into any collective bargaining agreement or relationship with any labor organization or enter into any other material labor contracts; xvii. enter into any contract, agreement or arrangement out of the Ordinary Course of Business or prohibiting or restricting it from freely engaging in any business or otherwise restricting the conduct of its business; xviii. amend any of its organizational or governing documents; xix. enter into any other transaction, other than in the ordinary courseOrdinary Course of Business, or materially change any business practice; (b) no change shall be made in xx. enter into any compromise or settlement of any litigation, proceeding, or governmental investigation affecting the Articles of Organization Company or Operating Agreements any of the Subsidiaries; (c) neither xxi. implement any plant closing or layoff of Employees that could implicate the LLC nor the Subsidiaries shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the SubsidiariesWARN Act; (d) neither the LLC nor the Subsidiaries will takexxii. make any payments for political contributions or make any bribes, agree to takekickback payments, or do anything in the conduct of its business which would be contrary to other illegal payments; or xxiii. agree or otherwise commit, whether orally or in material breach of writing, to do any of the terms or provisions of this Agreement, or which would cause any of the representations of the LLC or the Subsidiaries contained herein to be or become untrue in any material respect or which would result in a Material Adverse Effect to any of the Subsidiaries; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severanceforegoing.

Appears in 1 contract

Samples: Share Purchase Agreement (Gp Strategies Corp)

Conduct of Business Prior to the Closing Date. The LLC and During the --------------------------------------------- Subsidiaries agree that period from the date hereof of this Agreement and prior continuing until the earlier of the time the Parties have determined that all conditions to close have not or cannot be satisfied or waived or the Closing Date, Seller agrees to carry on the Business in the Ordinary Course in substantially the same manner as heretofore conducted, to pay the debts and except (i) Taxes of Seller when due, to pay or perform other obligations when due, and, to the extent consistent with such business, use all reasonable efforts consistent with past practice and policies to preserve intact Seller's present business organization, keep available the services of Seller's present officers and employees and preserve Seller's relationships with customers, suppliers, distributors, licensors, licensees and others having business dealings with it, all with the goal of preserving unimpaired Seller's goodwill and ongoing Business at the Closing Date. Except as set forth expressly contemplated in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreement, after the date of this Agreement, Seller will not, without the prior written consent of Buyer: (a) other than performing the business of the LLC and the Subsidiaries shall be conducted Material Contracts listed in the ordinary courseSchedule 2.10 in accordance with their terms existing on the date hereof, make any expenditure or enter into any transaction exceeding $10,000; (b) no change shall be made sell, license or transfer to any Person or entity of any rights to any Intellectual Property or enter into any agreement with respect to the Intellectual Property with any Person or entity other than in the Articles of Organization or Operating Agreements of the SubsidiariesOrdinary Course; (c) neither revalue any of its assets, including without limitation writing down the LLC nor value of items on its balance sheets or writing off notes or accounts receivable other than in the Subsidiaries shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the SubsidiariesOrdinary Course; (d) neither grant any severance or termination pay (i) to any director or officer or (ii) to any employee, except payments made pursuant to standard written agreements outstanding as of the LLC nor date hereof and disclosed on the Subsidiaries will take, agree to takeSchedules, or do anything increase in the conduct salary or other compensation payable or to become payable by Seller to any of its business which would be contrary officers, directors, employees or advisors, or declare, pay or make any commitment or obligation of any kind for the payment by Seller of a bonus or other additional salary or compensation to any such Person, or adopt or amend any employee benefit plan or enter into any employment contract other than in material breach the Ordinary Course; (e) sell, lease, license or otherwise dispose of any of the terms assets or provisions properties of this AgreementSeller relating to the Business or the Purchased Assets other than in the Ordinary Course, including but not limited to the performance of obligations under contractual arrangements existing as of the date hereof set forth on the Schedules, or which would cause create any security interest in such assets or properties; (f) grant any loan, guarantee or other extension of credit, or enter into any commitment to make any loan, guaranty or other extension of credit, to any Person or entity except for accounts receivable in the Ordinary Course, incur any indebtedness or guarantee any indebtedness except for accounts payable incurred in the Ordinary Course, issue or sell any debt securities, guarantee any debt securities of others, purchase any debt securities of others or amend the terms of any outstanding agreements related to borrowed money, except for expenses in the Ordinary Course; (g) amend in any respect or otherwise modify (or agree to do so), or violate the terms of any of the representations Material Contracts set forth or described in Schedule 2.10 or enter into any contract which would constitute a Material Contract except in the Ordinary Course; (h) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or equity securities or, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets which are material, individually or in the aggregate, to the Business; (i) pay, discharge or satisfy, in an amount in excess of $10,000 (in any one case) or $25,000 (in the aggregate), any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of liabilities in the Ordinary Course; (j) make or change any material election in respect of Taxes, adopt or change any accounting method in respect of Taxes, enter into any closing agreement, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the LLC limitation period applicable to any claim or assessment in respect of Taxes; (k) terminate any employees of the Subsidiaries contained herein Business other than for cause or encourage any employees of the Business to resign from Seller; (l) enter into any contract, purchase order or other agreement pursuant to which Seller would be required to book any amounts due thereunder as deferred revenue; (m) declare, issue, make or become untrue pay any dividend or other distribution of assets, whether consisting of money, other personal property, real property or other thing of value, to its shareholders, or split, combine, dividend, distribute or reclassify any shares of its capital stock; (n) make any loan by Seller to any officer, director, employee or stockholder of Seller or enter into any other agreement or commitment to or for the benefit of any officer, director, employee or stockholder or any of their respective Affiliates; or (o) take or agree in any material respect writing or which would result in a Material Adverse Effect to otherwise take any of the Subsidiaries; and actions described in the preceding clauses (ea) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiaries shall through (n) of this section or any other action that would prevent Seller from performing or cause Seller not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severanceperform its covenants and agreements hereunder.

Appears in 1 contract

Samples: Asset Purchase Agreement (NTN Communications Inc)

Conduct of Business Prior to the Closing Date. (a) The LLC Company and the --------------------------------------------- Subsidiaries agree that from Property shall be operated in the date hereof ordinary/customary course of business; provided, however, (1) the Company shall not and prior the Company shall not cause any Building Owner to the Closing Dateenter into or amend, and except (i) as any new contract or agreement that is not terminable with thirty (30) days prior written notice, without the express written consent of Buyer or (ii) from the Effective Date up to and including January 28, 2018, any lease for the Property without the express written consent of Buyer which shall not be unreasonably withheld, conditioned or delayed and (2) at Closing, subject to Section 2.3, the Building Owner shall distribute to the Company and the Company shall immediately distribute to Seller and Par 3 any cash then held by it, excluding the Purchase Price or any portion thereof which shall be paid directly to Seller in accordance with this Agreement, which distribution shall not be credited, debited or otherwise affect the Purchase Price or portion of the Purchase Price to be paid by Buyer at Closing. To the extent necessary, the operating agreement of the Company is hereby amended to comport to the terms set forth in Schedule 6.4 hereto, (ii) otherwise consented to or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or (iii) as required by this Agreement: (a) the business of the LLC and the Subsidiaries shall be conducted in the ordinary course;Section 6.2. (b) no change As of the Effective Date, Buyer shall be made responsible to reimburse any and all tenant improvements and leasing commissions in leases involving the Articles Property entered into in accordance with Section 6.2(a). If Buyer does not reimburse said tenant improvements or leasing commissions within thirty (30) days of Organization Seller or Operating Agreements Company's written request, Seller shall have the right, at its sole and absolute discretion, to declare this Agreement null and void and Purchaser shall have no rights of any kind, type or nature and Seller and Company shall have no obligations of any kind, type or nature pursuant to this this Agreement. For the Subsidiaries;avoidance of any doubt, in such circumstance the Non-Refundable Payment shall be retained by Seller. (c) neither the LLC nor the Subsidiaries shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets As of the Subsidiaries; (d) neither the LLC nor the Subsidiaries will take, agree to take, Effective Date until Closing or do anything in the conduct of its business which would be contrary to or in material breach of any of the terms or provisions earlier termination of this Agreement, Seller shall add or which would cause any of the representations of the LLC or the Subsidiaries contained herein to be added Buyer to the disclosure list so that Buyer will be distributed the financial statements concerning the Property prepared by property manager when distributed by property manager; provided, however, neither Seller, Company nor Building Owner makes any representations or become untrue in any material respect warranties as to the truthfulness or which would result in a Material Adverse Effect to any accuracy of the Subsidiaries; and (e) Except for the indebtedness set forth on Schedule 6.4(e), the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severancesuch financial statements.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Vestin Realty Mortgage II, Inc)

Conduct of Business Prior to the Closing Date. The LLC From and the --------------------------------------------- Subsidiaries agree that from after the date hereof until the Closing Date or earlier termination of this Agreement, Seller shall: 6.1.1. Carry on the Business in substantially the same manner as it has heretofore been conducted; 6.1.2. Maintain and prior keep the Assets in as reasonable condition and repair, reasonable wear and tear excepted, as the condition and repair the Assets are in as of the date hereof; 6.1.3. Not sell, lease, pledge, mortgage or otherwise dispose of or encumber any of the Assets except for the sale, lease, pledge, mortgage or disposal or encumbrance of any of the Assets, including Inventory, in the ordinary course of business which would not, individually or in the aggregate, be material to the Closing Date, operation of the Business. 6.1.4. Perform all of its obligations under the Contracts and except Assigned Leases; 6.1.5. Not (i) as set forth in Schedule 6.4 heretoenter into any contract outside the ordinary course of business, (ii) otherwise consented to modify or ------------ approved by an authorized officer of the Operating Partnership (such consent or approval not to be unreasonably withheld) or change any material contract, (iii) as required by this Agreement: cancel any debts or waive any claims or rights where such cancellation or waiver would reasonably be expected to have a material adverse effect, or (aiv) the make any loan to, or enter into any business transaction, agreement, arrangement or understanding of any other nature with, any employee of the LLC and Business or any officer or director of the Subsidiaries shall be conducted in the ordinary courseSeller or any affiliate or associate of any such officer or director; 6.1.6. Not (bi) no change shall be made grant any increases in the Articles of Organization wages, salaries or Operating Agreements of the Subsidiaries; (c) neither the LLC nor the Subsidiaries shall enter into nor terminate, amend, release or modify any Material Contract concerning the operations or assets of the Subsidiaries; (d) neither the LLC nor the Subsidiaries will take, agree to take, or do anything in the conduct of its business which would be contrary to or in material breach benefits of any of the Seller Employees except increases in the ordinary course of business in accordance with the Seller’s existing policies, (ii) enter into any employment agreements with respect to any employees of the Business, (iii) pay or agree to pay any pension, retirement allowance or other employee benefit not required by any existing plan, agreement or arrangement to any officer or employee of the Business, whether past or present, or (iv) with respect to the Seller’s Employees, commit to any additional pension, profit-sharing, bonus, incentive, deferred compensation, group insurance, severance pay, retirement or other employee benefit plan, agreement or arrangement, or to any employment or consulting agreement with or for the benefit of any Seller Employee, or to terminate or amend any of such plans or any of such agreements in existence on the date of this Agreement; 6.1.7. Not take any action that would prevent the transfer of the Assets to the Buyer at the Closing, pursuant to the terms or provisions of this Agreement, or which would cause any free and clear of all Liens; 6.1.8. Maintain its books, accounts and records with respect to the representations Business and the Assets in the usual, regular and ordinary manner, and comply with all Laws; 6.1.9. Keep and maintain all permits in full force and effect, continue their business pursuant to such permits and take all steps necessary to meet requirements on pending applications for permits; 6.1.10. Continue to operate and maintain the Business and the Assets in accordance with applicable Laws; 6.1.11. Use commercially reasonable efforts consistent with sound business judgment to preserve intact its present business and organization, to retain the services of the LLC or the Subsidiaries contained herein its present employees, to be or become untrue in any material respect or which would result in a Material Adverse Effect to any of the Subsidiaries; and (e) Except for the indebtedness set forth on Schedule 6.4(e)preserve its relationships with its customers, the Subsidiaries shall not incur any indebtedness for borrowed money, prepay any outstanding indebtedness for borrowed moneys on a "term loan" basis (except for scheduled payments or required pre-payments of outstanding debt), or adopt or agree to adopt any new employee benefit plan except as required by applicable law or terminate the employment or contract of any employee or contractor or accrue any liability beyond the Closing Date for severancesuppliers and others having business relationships with it.

Appears in 1 contract

Samples: Asset Purchase Agreement (Versadial, Inc.)