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

Conduct of the Seller's Business. The Seller covenants and agrees with 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 shall: (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 all reasonable efforts to preserve intact its present business organization, keep available the services of its employees and preserve its relationship with its customers, suppliers, jobbers, distributors and other Persons having business relations with it; (b) use all reasonable efforts to maintain the Transferred Assets in a state of repair, order and condition consistent with its usual past practice; (c) maintain its 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 consistent basis; (d) comply in all respects with all statutes, laws, orders and regulations applicable to it and to its business; (e) not 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) not mortgage, pledge or otherwise create a security interest in any of 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) not enter into any contract, commitment or lease in relation to its business or the Transferred Assets that is out of the ordinary course of business; (h) not amend or modify any of the Orders or Orders in 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 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 of the Orders or Orders 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; and (l) promptly notify the Buyer in writing if the Seller becomes aware of any change that shall have occurred or that shall have been threatened (or any development that shall have occurred or 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 business.

Conduct of the Seller's Business. The In connection with the Assets or the Business, Seller covenants shall exercise reasonable efforts to materially observe each term set forth in this Section 7.01 and agrees with the Buyer that that, from and after the date hereof until the ClosingClosing Date, except as expressly authorized by this Agreement or as expressly unless otherwise consented to in writing by the Buyer, the Seller shallwhich 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 Transferred Assets only ordinary course of Seller's business, on an arm's-length basis and in the usual, regular accordance in all material respects with all applicable Laws and ordinary manner and, to the extent consistent with such operation, will use all reasonable efforts to preserve intact its present business organization, keep available the services of its employees Seller's past custom and preserve its relationship with its customers, suppliers, jobbers, distributors and other Persons having business relations with itpractice; (b) use all reasonable efforts Seller shall not, directly or indirectly, do or permit to maintain occur any of the Transferred Assets following insofar as they relate to Business or the Assets: (i) sell, pledge, dispose of or encumber any of the Assets, except in a state the ordinary course of repairbusiness; (ii) acquire (by merger, order 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 condition consistent with its usual 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) maintain its books of account and records relating to its business 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 usualcase of employees, regular and ordinary mannerofficers or consultants who earn in excess of $25,000 per year, take any action with respect to the grant of any bonuses, salary increases, severance or termination pay or with respect to any increase of benefits payable in accordance with effect on the Seller's usual accounting practices applied on a consistent basisdate hereof, other than those individuals set forth in Schedule 7.01(c); (d) comply in all respects with all statutesSeller shall not adopt or amend any bonus, lawsprofit sharing, orders and regulations applicable to it and to its businesscompensation, 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 sellcancel or terminate its current insurance policies covering the Assets and the Business, 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) not mortgage, pledge or otherwise create a security interest in any of 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) not enter into any contract, commitment or lease in relation to its business or the Transferred Assets that is out of the ordinary course of business; (h) not amend or modify any of the Orders or Orders in 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 its business or the Transferred Assets to be canceled or terminated or cause any of the coverage thereunder to lapse lapse, unless simultaneously with such termination termination, cancellation or cancellation lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially the same coverage similar premiums are in full force and effect; (kf) pay Seller shall (i) use its best efforts to preserve intact the organization and goodwill of the Business, keep available the services of Seller's officers and employees as a group and maintain satisfactory relationships with suppliers, distributors, customers and others having business relationships with Seller in connection with the Business; (ii) confer on a regular and frequent basis with representatives of Buyer to report operational matters and the general status of ongoing operations with respect to the 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 any emergency or other change in 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 emergency, change, complaint, investigation or hearing would be material, individually or in the aggregate, to the 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 shall discover that any representation or warranty made by it in this Agreement was when due all accounts payablemade, all payments required or has subsequently become, untrue in any respect and (vi) without limiting the generality of the foregoing, the Seller shall use its best efforts to obtain the Subscription Agreements contemplated by Section 9.01(g) below from Creditors in exchange for only (x) Buyer's stock being held by such Creditors; (g) Seller shall (i) file in accordance with its practice, custom and applicable Laws any Tax returns, elections or information statements with respect to any Liabilities for Taxes of Seller or other matters relating to Taxes of Seller which affect the Assets and pursuant to applicable law must be filed prior to the Closing Date; (ii) pay, in accordance with an approved plan of 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 amend any Tax return or 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 Orders or Orders in Production and all Taxes other than Taxes that are being contested in good faith and for which adequate reserves against Buyer with respect to any period ending after the Transferred Assets exist and which would not result in a Lien being imposed on any of the Transferred AssetsClosing Date; and (li) promptly notify the Buyer in writing if the Seller becomes aware of shall not perform any change that shall have occurred or that shall have been threatened act referenced by (or omit to perform any development that shall have occurred or that shall have been threatened involving a prospective changeact which omission is referenced by) 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 terms of businessSection 5.09.

Conduct of the Seller's Business. The Seller covenants and agrees with the Buyer that from and after (a) From the date hereof until through the ClosingClosing Date, except as expressly authorized by this Agreement or as expressly consented to in writing by the Buyer, the Seller shall: shall (ai) operate conduct its business with respect to the Branches and the Transferred Assets only Deposit Liabilities in the usual, regular and ordinary manner and, to the extent course consistent with such operationLaw and past practice, will (ii) use all commercially reasonable efforts to maintain and preserve intact its present business organization, keep available the services of its employees and preserve its relationship relationships generally with its customersCustomers and (iii) take all commercially reasonable actions to maintain the Branches and property in the condition it existed in at the date of this Agreement, suppliersnormal wear and tear excepted; provided, jobbershowever, distributors and other Persons having 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 relations consistent with it;Seller's past practices. (b) use all reasonable efforts to maintain Except as may be required by regulatory authorities, Seller shall not, without the Transferred Assets in a state prior consent of repair, order and condition consistent with its usual past practice; (c) maintain its 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 consistent basis; (d) comply in all respects with all statutes, laws, orders and regulations applicable to it and to its business; (e) not 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) not mortgage, pledge or otherwise create a security interest in any of 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) not enter into any contract, commitment or lease in relation to its business or the Transferred Assets that is out of the ordinary course of business; (h) not amend or modify any of the Orders or Orders in Production; Purchaser: (i) not consent transfer to Seller's other branches any Deposit Liabilities at the Branches (or transfer deposits to the termination Branches from any other of any of the Orders or Orders in Production or waive any of the Seller's rights with respect thereto; (jbranches) not permit any insurance policy naming it as except upon the unsolicited request of a beneficiary or a loss payee relating to 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 of the Orders or Orders 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; and (l) promptly notify the Buyer in writing if the Seller becomes aware of any change that shall have occurred or that shall have been threatened (or any development that shall have occurred or 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 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 Deposit Liabilities except in the ordinary course of business or pursuant to this Agreement; (iii) offer to pay or pay on any Deposit Liabilities at the Branches any rate that would deviate materially from Seller's historical pricing practices and which is higher than that generally offered by Seller on similar products at other offices of Seller; or (iv) reduce fees on deposit accounts at the Branch below fees charged on similar deposit products at other offices of Seller. (c) Between the date hereof and the Closing Date, Seller shall promptly advise Purchaser in writing of any fact that, if existing or known as of the date hereof, would have made any of the representations contained herein inaccurate or untrue in any material respect.

Conduct of the Seller's Business. The Seller covenants and agrees with the Buyer that from and after (a) From the date hereof until -------------------------------- through the ClosingClosing Date, except as expressly authorized by this Agreement or as expressly consented to in writing by the Buyer, the Seller shall: shall (ai) operate conduct its business and with respect to the Transferred Assets only Deposit Liabilities in the usual, regular and ordinary manner and, to the extent course consistent with such operationLaw and past practice, will (ii) use all commercially reasonable efforts to maintain and preserve intact its present business organization, keep available the services of its employees and preserve its relationship relationships generally with its customersCustomers and (iii) take all commercially reasonable actions to maintain the Branch and property in the condition it existed in at the date of this Agreement, suppliersnormal wear and tear excepted; provided, jobbershowever, distributors and other Persons having 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 relations consistent with it;Seller's past practices. (b) use all reasonable efforts to maintain Except as may be required by regulatory authorities, Seller shall not, without the Transferred Assets in a state prior consent of repair, order and condition consistent with its usual past practice; (c) maintain its 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 consistent basis; (d) comply in all respects with all statutes, laws, orders and regulations applicable to it and to its business; (e) not 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) not mortgage, pledge or otherwise create a security interest in any of 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) not enter into any contract, commitment or lease in relation to its business or the Transferred Assets that is out of the ordinary course of business; (h) not amend or modify any of the Orders or Orders in Production; Purchaser: (i) not consent transfer to Seller's other branches any Deposit Liabilities at the Branch (or transfer deposits to the termination Branch from any other of any of the Orders or Orders in Production or waive any of the Seller's rights with respect thereto; (jbranches) not permit any insurance policy naming it as except upon the unsolicited request of a beneficiary or a loss payee relating to 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 of the Orders or Orders 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; and (l) promptly notify the Buyer in writing if the Seller becomes aware of any change that shall have occurred or that shall have been threatened (or any development that shall have occurred or 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 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 Deposit Liabilities except in the ordinary course of business or pursuant to this Agreement; (iii) offer to pay or pay on any Deposit Liabilities at the Branch any rate that would deviate materially from Seller's historical pricing practices and which is higher than that generally offered by Seller on similar products at other offices of Seller; or (iv) reduce fees on deposit accounts at the Branch below fees charged on similar deposit products at other offices of Seller.

Conduct of the Seller's Business. Pending the Closing Date. The --------------------------------------------------------- Seller covenants and hereby agrees with that prior to 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 shallClosing Date it will: (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 all reasonable its best efforts to preserve intact its present business organizationorganization and reputation intact, keep available the services of its present officers and employees and preserve its relationship present relationships and good will with its customers, suppliers, jobbers, distributors and other Persons persons having business relations dealings with it; (b) use maintain all reasonable efforts to maintain of the Transferred Assets in a state of customary repair, order and condition consistent condition, reasonable wear and use excepted, and maintain insurance upon all of its properties and with respect to the conduct of its usual past practicebusiness 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 of account books, accounts 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 basiswith 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 in all respects duly with all statutes, laws, orders and regulations laws applicable to it and to the conduct of its business; (e) not 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 businessconduct its operations so as to comply with all Environmental Laws; (f) not mortgagemake no amendment in its Articles of Incorporation or Bylaws; and enter or agree to enter into no merger or consolidation with, pledge or otherwise create sale of a security interest significant amount of its assets to, any corporation or change the character of its business in any of 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 Agreementmanner; (g) not enter into any contract, commitment make or lease grant no general wage or salary increase or increase in relation compensation payable or to its business or the Transferred Assets that is out of the ordinary course of business; (h) not amend or modify any of the Orders or Orders in 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 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 become payable to any of the Orders employee, officer, director or Orders in Production and all Taxes agent; pay or provide for no bonus, stock option, stock purchase, profit sharing, deferred compensation, pension, multi-employer pension, retirement or 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; and (l) promptly notify the Buyer in writing if the Seller becomes aware of any change that shall have occurred similar payment or that shall have been threatened (or any development that shall have occurred or 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 arrangement except in the ordinary course of businessadministering 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