Common use of Conduct of the Seller's Business Clause in Contracts

Conduct of the Seller's Business. Pending the Closing Date. The --------------------------------------------------------- Seller hereby agrees that prior to the Closing Date it will: (a) operate its business only in the usual, regular and ordinary manner and, to the extent consistent with such operation, use its best efforts to preserve its present business organization and reputation intact, keep available the services of its present officers and employees and preserve its present relationships and good will with persons having business dealings with it; (b) maintain all of the Assets in customary repair, order and condition, reasonable wear and use excepted, and maintain insurance upon all of its properties and with respect to the conduct of its business in such amounts and of such kinds comparable to that in effect on the date hereof; and, in the event of a casualty, loss or damage to any of such properties prior to the Closing Date for which the Seller is insured, the Seller shall, at Buyer's option, either repair or replace such damaged property or transfer the proceeds of such insurance to the Buyer; (c) maintain its books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; endeavor to comply with all laws and contractual obligations applicable to it and to the conduct of its business; and perform all of its obligations without default; (d) use its best efforts to comply duly with all laws applicable to it and the conduct of its business; (e) conduct its operations so as to comply with all Environmental Laws; (f) make no amendment in its Articles of Incorporation or Bylaws; and enter or agree to enter into no merger or consolidation with, or sale of a significant amount of its assets to, any corporation or change the character of its business in any manner; (g) make or grant no general wage or salary increase or increase in compensation payable or to become payable to any employee, officer, director or agent; pay or provide for no bonus, stock option, stock purchase, profit sharing, deferred compensation, pension, multi-employer pension, retirement or other similar payment or arrangement except in the ordinary course of administering existing plans referred to in Section 4.10 of the Disclosure ------------------------------ Schedule; pay or provide for no unfunded pensions, not covered by any pension -------- plan, other than the unfunded pensions, if any, referred to in Section 4.10 of --------------- the Disclosure Schedule and enter into no employment or consulting agreement or ----------------------- sales agency with respect to the performance of personal services which is not terminable without liability by Seller on thirty days notice or less. (h) (i) incur or become subject to, or agree to incur or become subject to, no obligation or liability (contingent or otherwise), subject to the exceptions enumerated in Section 4.7(a) hereof; (ii) discharge or satisfy no lien or encumbrance and pay no obligation or liability

Conduct of the Seller's Business. Pending In connection with the Assets or the Business, Seller shall exercise reasonable efforts to materially observe each term set forth in this Section 7.01 and agrees that, from the date hereof until the Closing Date. The --------------------------------------------------------- Seller hereby agrees that prior , unless otherwise consented to the Closing Date it willby Buyer, which consent shall not be unreasonably withheld, in writing: (a) operate its business The Business shall be conducted only in, and Seller shall not take any action except in, the ordinary course of Seller's business, on an arm's-length basis and in accordance in all material respects with all applicable Laws and Seller's past custom and practice; (b) Seller shall not, directly or indirectly, do or permit to occur any of the following insofar as they relate to Business or the Assets: (i) sell, pledge, dispose of or encumber any of the Assets, except in the usualordinary course of business; (ii) acquire (by merger, regular exchange, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership, joint venture or other business organization or division or material assets thereof; (iii) incur any indebtedness for borrowed money or issue any debt securities except the borrowing of working capital in the ordinary course of business and ordinary manner andconsistent with past practice; (iv) permit any accounts payable owed to trade creditors to remain outstanding more than 60 days; (v) accelerate, beyond the normal collection cycle, collection of accounts receivable; or (vi) enter into or propose to enter into, or modify or propose to modify, any agreement, arrangement or understanding with respect to any of the matters set forth in this Section 7.01(b); (c) Seller shall not, directly or indirectly, (i) enter into or modify any employment, severance or similar agreements or arrangements with, or grant any bonuses, salary increases, severance or termination pay to, any officers or directors or consultants; or (ii) in the case of employees, officers or consultants who earn in excess of $25,000 per year, take any action with respect to the extent consistent grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in effect on the date hereof, other than those individuals set forth in Schedule 7.01(c); (d) Seller shall not adopt or amend any bonus, profit sharing, compensation, pension, retirement, deferred compensation, employment or other employee benefit plan, trust, fund or group arrangement for the benefit or welfare of any employees or affiliates; (e) Seller shall not cancel or terminate its current insurance policies covering the Assets and the Business, or cause any of the coverage thereunder to lapse, unless simultaneously with such operationtermination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect; (f) Seller shall (i) use its best efforts to preserve its present business intact the organization and reputation intactgoodwill of the Business, keep available the services of its present Seller's officers and employees as a group and preserve its present maintain satisfactory relationships with suppliers, distributors, customers and good will with persons others having business dealings relationships with it; Seller in connection with the Business; (bii) maintain all confer on a regular and frequent basis with representatives of Buyer to report operational matters and the Assets in customary repair, order and condition, reasonable wear and use excepted, and maintain insurance upon all general status of its properties and ongoing operations with respect to the conduct Business; (iii) not intentionally take any action which would render, or which reasonably may be expected to render, any representation or warranty made by it in this Agreement untrue at the Closing; (iv) notify Buyer of its business any emergency or other change in such amounts the normal course of the Business or in the operation of the properties of the Business and of any governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated) if such kinds comparable to that in effect on the date hereof; andemergency, change, complaint, investigation or hearing would be material, individually or in the event of a casualtyaggregate, loss or damage to any of such properties prior to the Closing Date for which business, operations or financial condition of Seller or to Seller's or Buyer's ability to consummate the transactions contemplated by this Agreement; (v) promptly notify Buyer in writing if Seller is insuredshall discover that any representation or warranty made by it in this Agreement was when made, or has subsequently become, untrue in any respect and (vi) without limiting the generality of the foregoing, the Seller shall, at Buyer's option, either repair or replace such damaged property or transfer the proceeds of such insurance to the Buyer; (c) maintain its books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; endeavor to comply with all laws and contractual obligations applicable to it and to the conduct of its business; and perform all of its obligations without default; (d) shall use its best efforts to comply duly with all laws applicable to it and obtain the conduct of its business; Subscription Agreements contemplated by Section 9.01(g) below from Creditors in exchange for only (ex) conduct its operations so as to comply with all Environmental Laws; (f) make no amendment in its Articles of Incorporation or Bylaws; and enter or agree to enter into no merger or consolidation with, or sale of a significant amount of its assets to, any corporation or change the character of its business in any mannerBuyer's stock being held by such Creditors; (g) make Seller shall (i) file in accordance with its practice, custom and applicable Laws any Tax returns, elections or grant no general wage or salary increase or increase in compensation payable or to become payable to any employee, officer, director or agent; pay or provide for no bonus, stock option, stock purchase, profit sharing, deferred compensation, pension, multi-employer pension, retirement or other similar payment or arrangement except in the ordinary course of administering existing plans referred to in Section 4.10 of the Disclosure ------------------------------ Schedule; pay or provide for no unfunded pensions, not covered by any pension -------- plan, other than the unfunded pensions, if any, referred to in Section 4.10 of --------------- the Disclosure Schedule and enter into no employment or consulting agreement or ----------------------- sales agency information statements with respect to any Liabilities for Taxes of Seller or other matters relating to Taxes of Seller which affect the performance Assets and pursuant to applicable law must be filed prior to the Closing Date; (ii) pay, in accordance with an approved plan of personal services which is reorganization in Seller's Chapter 11 Case, all Taxes required to be shown on such Tax returns; (iii) promptly upon filing provide copies of any such Tax returns, elections or information statements to Buyer; (iv) make any such Tax elections or other discretionary positions with respect to Taxes taken by or affecting Seller only upon prior consultation with and consent of Buyer; and (v) not terminable without liability by Seller on thirty days notice amend any Tax return or less.report; (h) Neither Seller nor any of its Affiliates shall make any election without respect to Taxes, change an annual accounting period, adopt or change any accounting method or file any amended return, report or form, if such election, adoption, change or filing would have the effect of increasing the Tax Liability of the Buyer with respect to any period ending after the Closing Date; and (i) incur Seller shall not perform any act referenced by (or become subject to, or agree omit to incur or become subject to, no obligation or liability (contingent or otherwise), subject to perform any act which omission is referenced by) the exceptions enumerated in terms of Section 4.7(a) hereof; (ii) discharge or satisfy no lien or encumbrance and pay no obligation or liability5.09.

Conduct of the Seller's Business. Pending (a) From the date hereof -------------------------------- through the Closing Date. The --------------------------------------------------------- , Seller hereby agrees that prior shall (i) conduct its business with respect to the Closing Date it will: (a) operate its business only Deposit Liabilities in the usual, regular and ordinary manner and, to the extent course consistent with such operationLaw and past practice, (ii) use its best commercially reasonable efforts to preserve its present business organization and reputation intact, keep available the services of its present officers and employees maintain and preserve intact its present relationships generally with its Customers and good will (iii) take all commercially reasonable actions to maintain the Branch and property in the condition it existed in at the date of this Agreement, normal wear and tear excepted; provided, however, that Seller shall be under no obligation to advertise or promote new or substantially new customer services in the principal market area of, or for the benefit of, the Branch; provided, further, that Seller shall pay interest on the Deposit Liabilities at rates which are determined in the ordinary course of business consistent with persons having business dealings with it;Seller's past practices. (b) maintain Except as may be required by regulatory authorities, Seller shall not, without the prior consent of Purchaser: (i) transfer to Seller's other branches any Deposit Liabilities at the Branch (or transfer deposits to the Branch from any other of Seller's branches) except upon the unsolicited request of a depositor in the ordinary course of business; (ii) transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding, or negotiate with any party with respect to entering into a contract, agreement or understanding, to transfer, assign, encumber or otherwise dispose of any or all of the Assets in customary repair, order and condition, reasonable wear and use excepted, and maintain insurance upon all of its properties and with respect to the conduct of its business in such amounts and of such kinds comparable to that in effect on the date hereof; and, in the event of a casualty, loss or damage to any of such properties prior to the Closing Date for which the Seller is insured, the Seller shall, at Buyer's option, either repair or replace such damaged property or transfer the proceeds of such insurance to the Buyer; (c) maintain its books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; endeavor to comply with all laws and contractual obligations applicable to it and to the conduct of its business; and perform all of its obligations without default; (d) use its best efforts to comply duly with all laws applicable to it and the conduct of its business; (e) conduct its operations so as to comply with all Environmental Laws; (f) make no amendment in its Articles of Incorporation or Bylaws; and enter or agree to enter into no merger or consolidation with, or sale of a significant amount of its assets to, any corporation or change the character of its business in any manner; (g) make or grant no general wage or salary increase or increase in compensation payable or to become payable to any employee, officer, director or agent; pay or provide for no bonus, stock option, stock purchase, profit sharing, deferred compensation, pension, multi-employer pension, retirement or other similar payment or arrangement Deposit Liabilities except in the ordinary course of administering existing plans referred business or pursuant to in Section 4.10 of the Disclosure ------------------------------ Schedulethis Agreement; (iii) offer to pay or provide for no unfunded pensions, not covered by pay on any pension -------- plan, other than Deposit Liabilities at the unfunded pensions, if any, referred to in Section 4.10 of --------------- the Disclosure Schedule Branch any rate that would deviate materially from Seller's historical pricing practices and enter into no employment or consulting agreement or ----------------------- sales agency with respect to the performance of personal services which is not terminable without liability higher than that generally offered by Seller on thirty days notice similar products at other offices of Seller; or less(iv) reduce fees on deposit accounts at the Branch below fees charged on similar deposit products at other offices of Seller. (h) (i) incur or become subject to, or agree to incur or become subject to, no obligation or liability (contingent or otherwise), subject to the exceptions enumerated in Section 4.7(a) hereof; (ii) discharge or satisfy no lien or encumbrance and pay no obligation or liability

Conduct of the Seller's Business. Pending The Seller covenants and agrees with the Closing Date. The --------------------------------------------------------- Buyer that from and after the date hereof until the Closing, except as expressly authorized by this Agreement or as expressly consented to in writing by the Buyer, the Seller hereby agrees that prior to the Closing Date it willshall: (a) operate its business and the Transferred Assets only in the usual, regular and ordinary manner and, to the extent consistent with such operation, will use its best all reasonable efforts to preserve intact its present business organization and reputation intactorganization, keep available the services of its present officers and employees and preserve its present relationships relationship with its customers, suppliers, jobbers, distributors and good will with persons other Persons having business dealings relations with it; (b) use all reasonable efforts to maintain all of the Transferred Assets in customary a state of repair, order and condition, reasonable wear and use excepted, and maintain insurance upon all of condition consistent with its properties and with respect to the conduct of its business in such amounts and of such kinds comparable to that in effect on the date hereof; and, in the event of a casualty, loss or damage to any of such properties prior to the Closing Date for which the Seller is insured, the Seller shall, at Buyer's option, either repair or replace such damaged property or transfer the proceeds of such insurance to the Buyerusual past practice; (c) maintain its books, accounts books of account and records relating to its business in the usual, regular and ordinary manner, in accordance with the Seller's usual accounting practices applied on a basis consistent with prior years; endeavor to basis; (d) comply in all respects with all laws statutes, laws, orders and contractual obligations regulations applicable to it and to the conduct of its business; and perform all of its obligations without default; (d) use its best efforts to comply duly with all laws applicable to it and the conduct of its business; (e) conduct its operations so as to comply with all Environmental Lawsnot sell, assign, transfer, lease or otherwise dispose of any of the Transferred Assets or sell, assign, trade, lease, rent or otherwise dispose of any inventory or other assets of the Seller outside of the ordinary course of business; (f) make no amendment in its Articles of Incorporation not mortgage, pledge or Bylaws; and enter or agree to enter into no merger or consolidation with, or sale of otherwise create a significant amount of its assets to, any corporation or change the character of its business security interest in any mannerof the Transferred Assets or permit there to be created or exist any Liens thereon that would not be released upon the transfer of the Transferred Assets to the Buyer pursuant to this Agreement; (g) make not enter into any contract, commitment or grant no general wage lease in relation to its business or salary increase the Transferred Assets that is out of the ordinary course of business; (h) not amend or increase modify any of the Orders or Orders in compensation payable Production; (i) not consent to the termination of any of the Orders or Orders in Production or waive any of the Seller's rights with respect thereto; (j) not permit any insurance policy naming it as a beneficiary or a loss payee relating to become payable its business or the Transferred Assets to be canceled or terminated or any of the coverage thereunder to lapse unless simultaneously with such termination or cancellation replacement policies providing substantially the same coverage are in full force and effect; (k) pay when due all accounts payable, all payments required with respect to any employee, officer, director of the Orders or agentOrders in Production and all Taxes other than Taxes that are being contested in good faith and for which adequate reserves against the Transferred Assets exist and which would not result in a Lien being imposed on any of the Transferred Assets; pay and (l) promptly notify the Buyer in writing if the Seller becomes aware of any change that shall have occurred or provide for no bonus, stock option, stock purchase, profit sharing, deferred compensation, pension, multi-employer pension, retirement that shall have been threatened (or other similar payment any development that shall have occurred or arrangement except that shall have been threatened involving a prospective change) in the Seller's business or the Transferred Assets that would reasonably be expected to have a material or adverse effect on the Seller's business or the Transferred Assets whether or not occurring in the ordinary course of administering existing plans referred to in Section 4.10 of the Disclosure ------------------------------ Schedule; pay or provide for no unfunded pensions, not covered by any pension -------- plan, other than the unfunded pensions, if any, referred to in Section 4.10 of --------------- the Disclosure Schedule and enter into no employment or consulting agreement or ----------------------- sales agency with respect to the performance of personal services which is not terminable without liability by Seller on thirty days notice or lessbusiness. (h) (i) incur or become subject to, or agree to incur or become subject to, no obligation or liability (contingent or otherwise), subject to the exceptions enumerated in Section 4.7(a) hereof; (ii) discharge or satisfy no lien or encumbrance and pay no obligation or liability

Conduct of the Seller's Business. Pending (a) From the date hereof through the Closing Date. The --------------------------------------------------------- , Seller hereby agrees that prior shall (i) conduct its business with respect to the Closing Date it will: (a) operate its business only Branches and the Deposit Liabilities in the usual, regular and ordinary manner and, to the extent course consistent with such operationLaw and past practice, (ii) use its best commercially reasonable efforts to preserve its present business organization and reputation intact, keep available the services of its present officers and employees maintain and preserve intact its present relationships generally with its Customers and good will (iii) take all commercially reasonable actions to maintain the Branches and property in the condition it existed in at the date of this Agreement, normal wear and tear excepted; provided, however, that Seller shall be under no obligation to advertise or promote new or substantially new customer services in the principal market area of, or for the benefit of, the Branches; provided, further, that Seller shall pay interest on the Deposit Liabilities at rates which are determined in the ordinary course of business consistent with persons having business dealings with it;Seller's past practices. (b) maintain Except as may be required by regulatory authorities, Seller shall not, without the prior consent of Purchaser: (i) transfer to Seller's other branches any Deposit Liabilities at the Branches (or transfer deposits to the Branches from any other of Seller's branches) except upon the unsolicited request of a depositor in the ordinary course of business; (ii) transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding, or negotiate with any party with respect to entering into a contract, agreement or understanding, to transfer, assign, encumber or otherwise dispose of any or all of the Assets in customary repair, order and condition, reasonable wear and use excepted, and maintain insurance upon all of its properties and with respect to the conduct of its business in such amounts and of such kinds comparable to that in effect on the date hereof; and, in the event of a casualty, loss or damage to any of such properties prior to the Closing Date for which the Seller is insured, the Seller shall, at Buyer's option, either repair or replace such damaged property or transfer the proceeds of such insurance to the Buyer; (c) maintain its books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years; endeavor to comply with all laws and contractual obligations applicable to it and to the conduct of its business; and perform all of its obligations without default; (d) use its best efforts to comply duly with all laws applicable to it and the conduct of its business; (e) conduct its operations so as to comply with all Environmental Laws; (f) make no amendment in its Articles of Incorporation or Bylaws; and enter or agree to enter into no merger or consolidation with, or sale of a significant amount of its assets to, any corporation or change the character of its business in any manner; (g) make or grant no general wage or salary increase or increase in compensation payable or to become payable to any employee, officer, director or agent; pay or provide for no bonus, stock option, stock purchase, profit sharing, deferred compensation, pension, multi-employer pension, retirement or other similar payment or arrangement Deposit Liabilities except in the ordinary course of administering existing plans referred business or pursuant to in Section 4.10 of the Disclosure ------------------------------ Schedulethis Agreement; (iii) offer to pay or provide for no unfunded pensions, not covered by pay on any pension -------- plan, other than Deposit Liabilities at the unfunded pensions, if any, referred to in Section 4.10 of --------------- the Disclosure Schedule Branches any rate that would deviate materially from Seller's historical pricing practices and enter into no employment or consulting agreement or ----------------------- sales agency with respect to the performance of personal services which is not terminable without liability higher than that generally offered by Seller on thirty days notice similar products at other offices of Seller; or less(iv) reduce fees on deposit accounts at the Branch below fees charged on similar deposit products at other offices of Seller. (hc) (i) incur Between the date hereof and the Closing Date, Seller shall promptly advise Purchaser in writing of any fact that, if existing or become subject toknown as of the date hereof, would have made any of the representations contained herein inaccurate or agree to incur or become subject to, no obligation or liability (contingent or otherwise), subject to the exceptions enumerated untrue in Section 4.7(a) hereof; (ii) discharge or satisfy no lien or encumbrance and pay no obligation or liabilityany material respect.