Covenants Pending Closing. The Seller covenants and agrees with Purchaser that, upon full execution of this Agreement and pending the Closing: (a) the business of the Seller shall be conducted in the ordinary course consistent with its past practice, and the Seller shall not enter into any material new contracts or incur any material new obligations (except for the purchase of automobiles and other vehicles in the ordinary course of business), nor shall the Seller amend, otherwise modify or terminate any Contracts without the prior written consent of the Purchaser, other than in the ordinary course of business. Without limiting the foregoing, the Seller shall promptly notify the Purchaser of any material changes in the Seller's conduct of the Business; (b) the Seller shall not, directly or indirectly, in any way contact, initiate, enter into, participate in or conduct any discussions or negotiations, or enter into any agreements, whether written or oral, with any person with respect to the sale of all or part of the Assets or the Business, except for transactions in the ordinary course of the Business consistent with past practice; (c) the Seller will give to the Purchaser's officers, employees, counsel, accountants and other representatives free and full access to and the right to inspect, during normal business hours, all of the premises, properties, assets, records, contracts, business plans and other documents relating to the Business, and shall permit them to consult with the officers, employees, counsel, accountants and other representatives of the Seller for the purpose of making such investigation of the Business as the Purchaser shall desire to make, provided that such investigation shall not unreasonably interfere with the Seller's business operations. Furthermore, the Seller will furnish to the Purchaser all such documents and copies of documents and records and information with respect to its affairs and copies of any working papers relating thereto as the Purchaser shall from time to time request; (d) the Seller shall use reasonable efforts to fulfill the conditions set forth in Section 5 hereof and to cause the representations and warranties set forth herein to remain true and correct; (e) the Seller shall not incur any debts, dues, claims, encumbrances, liens, mortgages, or other indebtedness without the prior written consent of Purchaser, other than in the ordinary course of business; (f) the Seller shall maintain all Assets and physical structures of Stuart Nissan and Stuart Volvo in the same condition as at the expiration of the Inspection Period, reasonable wear and tear excepted; (g) the Seller will use reasonable efforts to maintain all present employees and to preserve the goodwill associated with the Business; (h) the Seller will maintain customer information pertaining to the Business consistent with its past practices; (i) the Seller will not sell any of the Assets, except in the ordinary course of business; (j) the Seller will maintain insurance on the Business Assets in amounts and against risks consistent with its past practices; (k) the Seller shall not enter into any written or oral agreements or preliminary letters of intent or agreements in principal for the sale of the Assets; and (l) the Seller shall maintain in good standing the Nissan Lease and Volvo Lease (hereinafter defined) on the Business and shall keep in full force and effect the dealer agreements with Volvo and Nissan Motors and advise Purchaser of any written notifications, or memoranda with Nissan or Volvo received after the execution of this Agreement and received within six (6) months prior to the full execution of this Agreement which in any way relate to any violation by Seller of the dealer agreements with Nissan Motors or Volvo adversely affecting the ability of dealer agreements to be entered into by Nissan Motors and Volvo and Purchaser, or relate to the renewal or term thereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Smart Choice Automotive Group Inc)
Covenants Pending Closing. (a) The Seller covenants and agrees with Purchaser thatthat from the date hereof to the Closing Date, upon full execution of this Agreement to, and pending to cause the ClosingCompany to:
(ai) operate the business businesses of the Seller shall be conducted Company substantially as now operated and only in the ordinary course and, to the extent of and consistent with its past practicesuch operation, use reasonable efforts to preserve intact the present business organization, maintain the Company’s reputation and the Seller shall not enter into any material new contracts or incur any material new obligations (except for relationships with Persons having business dealings with the purchase of automobiles and other vehicles in the ordinary course of business), nor shall the Seller amend, otherwise modify or terminate any Contracts without the prior written consent of the Purchaser, other than in the ordinary course of business. Without limiting the foregoing, the Seller shall promptly notify the Purchaser of any material changes in the Seller's conduct of the BusinessCompany;
(bii) maintain the Seller shall notbooks, directly or indirectly, in any way contact, initiate, enter into, participate in or conduct any discussions or negotiations, or enter into any agreements, whether written or oral, with any person with respect to the sale of all or part accounts and records of the Assets or the Business, except for transactions Company in the usual, regular and ordinary course of the Business manner and consistent with past practice;
(ciii) not sell, lease or dispose of any material business assets of the Company or encumber the Company with liabilities or Liens;
(iv) not amend, adversely modify or terminate any Contract except as otherwise necessary to comply with this Agreement; and
(v) not take any action that might reasonably be expected to adversely affect the ability of either party to execute, deliver or perform this Agreement. The Seller, the Company and the Purchaser will use their respective best efforts (A) to obtain all necessary consents and approvals of Seller /s/ AG Purchaser /s/ CD governmental and regulatory authorities to the consummation of the transactions contemplated by this Agreement, (B) to obtain all other waivers and/or consents necessary or advisable in connection with the transactions contemplated by this Agreement, and (C) to perform, comply with and fulfill all obligations, covenants and conditions required by this Agreement to be performed, complied with and fulfilled by them prior to or at the Closing Date. All transactional matters, corporate ministerial actions, regulatory filings or consent payments prior to Closing shall be at the Seller’s sole cost and expense.
(b) Prior to the Closing, the Seller will give and the Company agree to permit the Purchaser and its employees, agents and representatives to have reasonable access to the Purchaser's officers, employees, counsel, accountants and other representatives free and full access to and the right to inspect, during normal business hours, all of the premises, properties, assets, books and records, contracts, business plans contracts and other documents relating documents, on reasonable prior notice, during regular business hours.
(c) Prior to the BusinessClosing, and shall permit them to consult with the officers, employees, counsel, accountants and other representatives of neither the Seller for or the purpose Company, on the one hand, nor the Purchaser, on the other hand, nor any of making such investigation of their agents or affiliates, shall either directly or indirectly make any press release or other public communication after the Business as the Purchaser shall desire to make, provided that such investigation shall not unreasonably interfere with the Seller's business operations. Furthermore, the Seller will furnish to the Purchaser all such documents and copies of documents and records and information date hereof with respect to its affairs and copies of any working papers relating thereto as the Purchaser shall from time to time request;
(d) the Seller shall use reasonable efforts to fulfill the conditions set forth in Section 5 hereof and to cause the representations and warranties set forth herein to remain true and correct;
(e) the Seller shall not incur any debts, dues, claims, encumbrances, liens, mortgages, or other indebtedness transaction contemplated hereby without the prior written consent of Purchaserall other parties hereto (which shall not be unreasonably withheld) unless required by applicable Law, other than rule or regulation (including the rules and regulations of the SEC and any securities quotation system or securities exchange) to make such a communication.
(d) Prior to Closing, the Company shall, and the Seller shall cause the Company to, fully, faithfully and promptly discharge its ordinary course liabilities as and when due and dischargeable, according to the terms of such liability so long as any such action is not in breach of this Agreement.
(e) The Seller hereby agrees that it shall, and shall cause the Company to, conduct the on-going business operations of the Company in the ordinary course and shall, and shall cause the Company to, take no action to liquidate or distribute its business assets or dissolve or otherwise reclassify its corporate identity, and shall promptly notify the Purchaser if any third party attempts or executes any action which interferes with the consummation of business;the transactions contemplated by this Agreement.
(f) Prior to Closing, the Company shall, and the Seller shall maintain all Assets and physical structures of Stuart Nissan and Stuart Volvo in cause the same condition as at Company to, not make or declare any distributions or dividends payable to stockholders. Prior to the expiration date of the Inspection Periodmost recently filed annual report of the Company on Form 10-K or Form 10-KSB, reasonable wear the Company shall not have any declared and tear excepted;unpaid dividends or distributions owing to stockholders.
(g) Immediately prior to the Seller will use reasonable efforts to maintain all present employees and to preserve Closing, the goodwill associated Board of Directors serving as of the date of this Agreement shall appoint the Person set forth on Exhibit B hereto as new director of the Company, in accordance with the Business;form of written resolution attached hereto as Exhibit B.
(h) At the Seller will maintain customer information pertaining Closing and subsequent to the Business consistent with its past practices;
(i) the Seller will not sell any duly effective appointment of the Assetsnew director under paragraph 6.5(g) above, except each director and officer of the Company serving the Company as of the date of this Agreement shall resign pursuant to the respective forms of resignation in the ordinary course forms attached as Exhibit C hereto, provided, however that prior to the effectiveness of business;
such resignation, ten (j10) calendar days shall have elapsed following the Seller will maintain insurance filing with the U.S. Securities and Exchange Commission of an Information Statement on Schedule 14f-1 by the Business Assets in amounts Company (as the may be amended prior to the expiration of such ten (10) day period, and against risks consistent with its past practices;
which amendment thereof shall extend the ten (k10) the Seller shall not enter into any written or oral agreements or preliminary letters of intent or agreements in principal for the sale of the Assets; and
(l) the Seller shall maintain in good standing the Nissan Lease and Volvo Lease (hereinafter defined) on the Business and shall keep in full force and effect the dealer agreements with Volvo and Nissan Motors and advise Purchaser of any written notifications, or memoranda with Nissan or Volvo received after day period therefrom). Following the execution of this Agreement and received within six (6through the date of effectiveness of such resignations, no other directors shall be appointed or elected to serve the Company except as otherwise expressly provided in paragraph 6.5(g) months prior to the full above. Following execution of this Agreement which in any way relate to any violation by Seller the Seller, no other officers of the dealer agreements with Nissan Motors or Volvo adversely affecting Company and no powers of attorney to act on behalf of the ability of dealer agreements to Company shall be entered into appointed by Nissan Motors and Volvo and Purchaser, or relate to the renewal or term thereofCompany.
Appears in 1 contract
Samples: Securities Purchase Agreement (Rudana Investment Group AG)
Covenants Pending Closing. (a) The Seller covenants and agrees with Purchaser thatthat from the date hereof to the Closing Date, upon full execution of this Agreement to, and pending to cause the ClosingCompany to:
(ai) operate the business businesses of the Seller shall be conducted Company substantially as now operated and only in the ordinary course and, to the extent of and consistent with its past practicesuch operation, use reasonable efforts to preserve intact the present business organization, maintain the Company’s reputation and the Seller shall not enter into any material new contracts or incur any material new obligations (except for relationships with Persons having business dealings with the purchase of automobiles and other vehicles in the ordinary course of business), nor shall the Seller amend, otherwise modify or terminate any Contracts without the prior written consent of the Purchaser, other than in the ordinary course of business. Without limiting the foregoing, the Seller shall promptly notify the Purchaser of any material changes in the Seller's conduct of the BusinessCompany;
(bii) maintain the Seller shall notbooks, directly or indirectly, in any way contact, initiate, enter into, participate in or conduct any discussions or negotiations, or enter into any agreements, whether written or oral, with any person with respect to the sale of all or part accounts and records of the Assets or the Business, except for transactions Company in the usual, regular and ordinary course of the Business manner and consistent with past practice;
(ciii) not sell, lease or dispose of any material business assets of the Company or encumber the Company with liabilities or Liens;
(iv) not amend, adversely modify or terminate any Contract except as otherwise necessary to comply with this Agreement; and Seller V.V. Purchaser T.S. R.T.
(v) not take any action that might reasonably be expected to adversely affect the ability of either party to execute, deliver or perform this Agreement. The Seller, the Company and the Purchaser will use their respective best efforts (A) to obtain all necessary consents and approvals of governmental and regulatory authorities to the consummation of the transactions contemplated by this Agreement, (B) to obtain all other waivers and/or consents necessary or advisable in connection with the transactions contemplated by this Agreement, and (C) to perform, comply with and fulfill all obligations, covenants and conditions required by this Agreement to be performed, complied with and fulfilled by them prior to or at the Closing Date. All transactional matters, corporate ministerial actions, regulatory filings or consent payments prior to Closing shall be at the Seller’s sole cost and expense.
(b) Prior to the Closing, the Seller will give and the Company agree to permit the Purchaser and its employees, agents and representatives to have reasonable access to the Purchaser's officers, employees, counsel, accountants and other representatives free and full access to and the right to inspect, during normal business hours, all of the premises, properties, assets, books and records, contracts, business plans contracts and other documents relating documents, on reasonable prior notice, during regular business hours.
(c) Prior to the BusinessClosing, and shall permit them to consult with the officers, employees, counsel, accountants and other representatives of neither the Seller for or the purpose Company, on the one hand, nor the Purchaser, on the other hand, nor any of making such investigation of their agents or affiliates, shall either directly or indirectly make any press release or other public communication after the Business as the Purchaser shall desire to make, provided that such investigation shall not unreasonably interfere with the Seller's business operations. Furthermore, the Seller will furnish to the Purchaser all such documents and copies of documents and records and information date hereof with respect to its affairs and copies of any working papers relating thereto as the Purchaser shall from time to time request;
(d) the Seller shall use reasonable efforts to fulfill the conditions set forth in Section 5 hereof and to cause the representations and warranties set forth herein to remain true and correct;
(e) the Seller shall not incur any debts, dues, claims, encumbrances, liens, mortgages, or other indebtedness transaction contemplated hereby without the prior written consent of Purchaserall other parties hereto (which shall not be unreasonably withheld) unless required by applicable Law, other than rule or regulation (including the rules and regulations of the SEC and any securities quotation system or securities exchange) to make such a communication.
(d) Prior to Closing, the Company shall, and the Seller shall cause the Company to, fully, faithfully and promptly discharge its ordinary course liabilities as and when due and dischargeable, according to the terms of such liability so long as any such action is not in breach of this Agreement.
(e) The Seller hereby agrees that it shall, and shall cause the Company to, conduct the on-going business operations of the Company in the ordinary course and shall, and shall cause the Company to, take no action to liquidate or distribute its business assets or dissolve or otherwise reclassify its corporate identity, and shall promptly notify the Purchaser if any third party attempts or executes any action which interferes with the consummation of business;the transactions contemplated by this Agreement.
(f) Prior to Closing, the Company shall, and the Seller shall maintain all Assets and physical structures of Stuart Nissan and Stuart Volvo in cause the same condition as at Company to, not make or declare any distributions or dividends payable to stockholders. Prior to the expiration date of the Inspection Periodmost recently filed annual report of the Company on Form 10-K or Form 10-KSB, reasonable wear the Company shall not have any declared and tear excepted;unpaid dividends or distributions owing to stockholders.
(g) Each director and officer of the Seller will use reasonable efforts to maintain all present employees and to preserve Company serving the goodwill associated with Company as of the Business;
(h) the Seller will maintain customer information pertaining date of this Agreement shall resign pursuant to the Business consistent with its past practices;
respective forms of resignation in the forms attached as Exhibit B hereto, to be effective upon (i) the Seller will not sell execution of a resolution appointing such individual to the Company’s Board of Directors as the Purchaser may recommend at any time within ninety (90) days hereafter, with such appointment to become effective at such time as the Purchaser may reasonably request, and (ii) ten (10) calendar days following the filing with the U.S. Securities and Exchange Commission of an Information Statement on Schedule 14f-1 by the AssetsCompany (as the same may be amended prior to the expiration of such ten (10) day period, except in and which amendment thereof shall extend the ordinary course ten (10) day period therefrom), which Schedule 14f-1 shall reflect the appointment of business;
(j) such new director and the Seller will maintain insurance on the Business Assets in amounts and against risks consistent with its past practices;
(k) the Seller shall not enter into any written or oral agreements or preliminary letters of intent or agreements in principal for the sale of the Assets; and
(l) the Seller shall maintain in good standing the Nissan Lease and Volvo Lease (hereinafter defined) on the Business and shall keep in full force and effect the dealer agreements with Volvo and Nissan Motors and advise Purchaser of any written notifications, or memoranda with Nissan or Volvo received after Seller’s resignation as described herein. Following the execution of this Agreement and received within six (6through the date of effectiveness of such resignations, no other directors shall be appointed or elected to serve the Company except as otherwise expressly provided in Section 6.1(f)(i) months prior to the full above. Following execution of this Agreement which in any way relate to any violation by Seller the Seller, no other officers of the dealer agreements with Nissan Motors or Volvo adversely affecting Company and no powers of attorney to act on behalf of the ability of dealer agreements to Company shall be entered into appointed by Nissan Motors and Volvo and Purchaser, or relate to the renewal or term thereof.Company. Seller V.V. Purchaser T.S. R.T.
Appears in 1 contract
Samples: Securities Purchase Agreement (Rudana Investment Group AG)
Covenants Pending Closing. The Seller covenants (a) From and agrees after the date of this Agreement, the parties shall use their reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable and consistent with Purchaser thatapplicable law to perform their respective obligations under this Agreement, upon full to cause the conditions to Closing to be satisfied, and to consummate the transactions contemplated hereby as soon as reasonably practicable.
(b) From and after the date of this Agreement, each party hereto shall, as promptly as possible, use its reasonable best efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all third parties and vendors that may be or become necessary for its execution and delivery of this Agreement and pending the Closing:performance of its obligations pursuant to this Agreement and the other Transaction Documents. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals.
(ac) From and after the date hereof and continuing until that date which is thirty (30) days after the date hereof (the “Investigation Period”), Seller shall afford Purchaser the opportunity to conduct an investigation reviewing the legal, financial, operating and other aspects of the Assets. During the Investigation Period, the Seller shall provide Purchaser and its representatives reasonable access during normal business hours to all of the property, books and records of the Seller relating to the Assets. At any time prior to the expiration of the Investigation Period, Purchaser shall have the absolute right, in its sole discretion and for any reason or no reason, to terminate the investigation and all obligations under this Agreement by giving written notice thereof to the Seller at the address set forth above. In the event of such termination, Seller shall promptly return the Deposit to Purchaser and this Agreement shall become null and void and none of the parties hereto shall have any other or further liability to the other hereunder.
(d) Concurrently with the execution hereof, Purchaser shall, at Purchaser’s expense, engage an accounting firm reasonably satisfactory to the parties to complete an audit of the Seller’s financial statements for the calendar years ended December 31, 2017 and December 31, 2018 (the “Audit”). Purchaser represents and warrants to Seller that attached hereto as Schedule 7.1(d) of the Disclosure Schedule is a true and complete copy of such engagement agreement. From and after the date hereof and continuing until that date which is sixty (60) days after the date hereof (the “Audit Period”), Seller shall reasonably cooperate with Purchaser (and such accounting firm) and provide reasonable access during normal business hours to all of the property, books and records of the Seller to allow the Audit to be conducted completed within the Audit Period. Purchaser shall use commercially reasonable diligent efforts to cause such Audit to be completed within the Audit Period and pay the fees of the accounting firm in accordance with such engagement agreement. In the ordinary course consistent event that the Audit shows a material adverse change from the internally prepared financial statements for such periods, then at any time prior to the expiration of the Audit Period, Purchaser shall have the absolute right, in its sole discretion to terminate all obligations under this Agreement by giving written notice thereof to the Seller at the address set forth above. In the event that Purchaser ceases such Audit or fails to diligently pursue such Audit at any time during the Audit Period or fails to pay the accounting firm in accordance with its past practicesuch engagement agreement, then Seller shall have the right to terminate this Agreement by giving written notice thereof to Purchaser at the address set forth above. In the event of either such termination, Seller shall promptly return the Deposit to Purchaser and this Agreement shall become null and void and none of the parties hereto shall have any other or further liability to the other hereunder.
(e) From and after the date of this Agreement and continuing until the earlier of the Closing Date or the termination of this Agreement, Seller shall not enter into any material new contracts agreement, arrangement or incur any material new obligations understanding to, or otherwise offer or commit to (except for the purchase of automobiles and other vehicles in the ordinary course of business)a) sell, nor shall the Seller amendtransfer, otherwise modify assign, lease or terminate any Contracts without the prior written consent of the Purchaser, other than in the ordinary course of business. Without limiting the foregoing, the Seller shall promptly notify the Purchaser dispose of any material changes in the Seller's conduct of the Business;
(b) the Seller shall not, directly or indirectly, in any way contact, initiate, enter into, participate in or conduct any discussions or negotiations, or enter into any agreements, whether written or oral, with any person with respect to the sale of all or part of the Assets or the Business, except for transactions in the ordinary course of the Business consistent with past practice;
(c) the Seller will give to the Purchaser's officers, employees, counsel, accountants and other representatives free and full access to and the right to inspect, during normal business hours, all of the premises, properties, assets, records, contracts, business plans and other documents relating to the Business, and shall permit them to consult with the officers, employees, counsel, accountants and other representatives of the Seller for the purpose of making such investigation of the Business as the Purchaser shall desire to make, provided that such investigation shall not unreasonably interfere with the Seller's business operations. Furthermore, the Seller will furnish to the Purchaser all such documents and copies of documents and records and information with respect to its affairs and copies of any working papers relating thereto as the Purchaser shall from time to time request;
(d) the Seller shall use reasonable efforts to fulfill the conditions set forth in Section 5 hereof and to cause the representations and warranties set forth herein to remain true and correct;
(e) the Seller shall not incur any debts, dues, claims, encumbrances, liens, mortgagesinterest therein or portion thereof, or negotiate therefor, or (b) create, incur or suffer to exist any new lien, encumbrance or other indebtedness without the prior written consent of Purchaser, other than in the ordinary course of business;
(f) the Seller shall maintain all Assets and physical structures of Stuart Nissan and Stuart Volvo in the same condition as at the expiration of the Inspection Period, reasonable wear and tear excepted;
(g) the Seller will use reasonable efforts to maintain all present employees and to preserve the goodwill associated with the Business;
(h) the Seller will maintain customer information pertaining to the Business consistent with its past practices;
(i) the Seller will not sell any of the Assets, except in the ordinary course of business;
(j) the Seller will maintain insurance liability on the Business Assets in amounts and against risks consistent with its past practices;
(k) the Seller shall not enter into or any written or oral agreements or preliminary letters of intent or agreements in principal for the sale of the Assets; and
(l) the Seller shall maintain in good standing the Nissan Lease and Volvo Lease (hereinafter defined) on the Business and shall keep in full force and effect the dealer agreements with Volvo and Nissan Motors and advise Purchaser of any written notifications, or memoranda with Nissan or Volvo received after the execution of this Agreement and received within six (6) months prior to the full execution of this Agreement which in any way relate to any violation by Seller of the dealer agreements with Nissan Motors or Volvo adversely affecting the ability of dealer agreements to be entered into by Nissan Motors and Volvo and Purchaser, or relate to the renewal or term thereof.interest therein,
Appears in 1 contract
Covenants Pending Closing. The Seller (a) Prior to the Closing, Buyer shall be entitled, through its employees and representatives, to make such investigations and examinations of Target, its books and records, business and assets as Buyer may reasonably request. In order that Buyer may have the full opportunity to do so, Target shall furnish Buyer and its representatives during such period with all information concerning Target as Buyer or such representatives may reasonably request and cause Target's officers, employees, consultants, agents, accountants and attorneys to cooperate fully with Buyer and such representatives and to make full disclosure of all information and documents requested by Buyer or such representatives. Any such investigations and examinations shall be conducted at reasonable times and under reasonable circumstances. No investigation by Buyer shall, however, limit, diminish or obviate in any way the effectiveness of any of the representations, warranties, covenants and agrees with Purchaser that, upon full execution or agreements of Target contained in this Agreement or the Transaction Documents.
(b) From the date hereof through the Closing Date, Target shall conduct its business and pending its corporate affairs in such a manner that its representations and warranties contained herein shall continue to be true and correct in all material respects as of the Closing Date as if made on and as of the Closing Date, except for changes occurring in the ordinary course of business, changes from actions of Target, previously approved by Buyer, or as otherwise contemplated herein. Target, on the one hand, and Buyer, on the other, shall use best efforts to cause the satisfaction of the conditions precedent to the obligation of the other parties to consummate the transactions contemplated hereby.
(c) From the date hereof through the Closing Date, except as otherwise contemplated herein, or as previously approved by Buyer, Target shall conduct its business only in the ordinary course and consistent with its prior practices, shall not make or institute any unusual or novel methods of purchase, sale, lease, management, accounting, or operation or that vary materially from those in use as of the date hereof and shall maintain, keep and preserve its business and the Assets in good condition and repair. In addition, Target shall use its best efforts: (i) to preserve the business and organization of Target intact; (ii) to keep available to Buyer the services of Target's present officers, employees, agents and independent contractors; (iii) to preserve for the benefit of Buyer the goodwill of Target's suppliers, customers, licensors and others having business relations with it; and (iv) to cooperate with Buyer and use reasonable efforts to assist Buyer in obtaining the consent of any noteholder, licensor or other party to any agreement with Target where the consent of such other party may be required or advisable by reason of the transactions contemplated herein or in the Transaction Documents. Without limiting the generality of the foregoing, prior to the Closing:
(ai) the business of the Seller shall be conducted in the ordinary course consistent with its past practice, and the Seller Target shall not enter into any material new contracts agreement, including any loan agreement, or incur any material new obligations (except for the purchase of automobiles and other vehicles in the ordinary course of business), nor shall the Seller amend, otherwise modify or terminate any Contracts obligation without the prior written consent of Buyer;
(ii) Target shall repay all outstanding debt owed by Target, and Target shall not incur any additional debt, under the Purchaserloan agreements set forth in Schedule 2.32;
(iii) Target shall not enter into any contract, commitment, arrangement or transaction with Seller or any of its respective Affiliates on terms and conditions less favorable to Target than the terms and conditions which could be obtained by Target with respect to similar dealings, contracts, commitments or arrangements with third parties, without the prior consent of Buyer; and
(iv) Target shall not, without Buyer's prior written approval, amend or propose to amend its Certificate of Incorporation or By-laws or take any action or enter into any transaction of the sort described in Section 2.13, or which would cause any representation or warranty made in Section 2.13 to be untrue.
(d) From the date hereof through the Closing Date, Target shall: (i) maintain in force (including necessary renewals thereof) the insurance policies currently in effect, except to the extent that they may be replaced with equivalent policies providing insurance to the same extent as currently insured, without material increase in cost; (ii) comply in all material respects with all agreements to which it is a party and will not suffer or permit to exist any condition or event that, with notice or lapse of time or both, would constitute a material default by it under any material contract, license or governmental authorization or permit; (iii) duly and timely file all tax returns required to be filed with authorities and duly observe and conform, in all material respects, to all applicable laws and orders; and (iv) notify Buyer of any lawsuit, claim, proceeding, or investigation that after the date hereof is threatened or commenced against it.
(e) From the date hereof through the Closing Date, Target shall not: (i) issue or sell, or commit to issue or sell, any shares of its capital stock; (ii) declare, set aside or pay, or commit to pay, any dividend or other distribution on its capital stock; (iii) borrow or agree to borrow any funds or incur, whether directly or by way of guarantee, any obligation for borrowed money, other than in the ordinary course of business. Without limiting the foregoing, the Seller shall promptly notify the Purchaser of any material changes in the Seller's conduct of the Business;
(b) the Seller shall not, directly or indirectly, in any way contact, initiate, enter into, participate in or conduct any discussions or negotiations, or enter into any agreements, whether written or oral, with any person with respect to the sale of all or part of the Assets or the Business, except for transactions in the ordinary course of the Business business and consistent with past practice;
; (civ) the Seller will give to the Purchaser's officers, employees, counsel, accountants and other representatives free and full access to and the right to inspect, during normal business hours, all permit any of the premisesproperty or assets of Target (real, propertiespersonal or mixed, assets, records, contracts, business plans and other documents relating tangible or intangible) to be subjected to any encumbrance or otherwise permit or allow the Business, and shall permit them to consult with the officers, employees, counsel, accountants and other representatives of the Seller for the purpose of making such investigation of the Business as the Purchaser shall desire to make, provided that such investigation shall not unreasonably interfere with the Seller's business operations. Furthermore, the Seller will furnish to the Purchaser all such documents and copies of documents and records and information with respect to its affairs and copies disposition of any working papers relating thereto as the Purchaser shall from time property or assets of Target; (v) knowingly waive or commit to time request;
(d) the Seller shall use reasonable efforts to fulfill the conditions set forth in Section 5 hereof and to cause the representations and warranties set forth herein to remain true and correct;
(e) the Seller shall not incur waive any debts, dues, claims, encumbrances, liens, mortgages, or other indebtedness without the prior written consent of Purchaser, rights other than in the ordinary course of business;business consistent with past practice; (vi) make or agree to make any increase in the compensation payable or to become payable to any employee, agent, consultant or other similar representative of Target, or make or agree to make any increase in any bonus or incentive compensation or commission plan or in any employee benefit plan or pension plan; or (vii) agree to do any of the foregoing.
(f) Unless and until this Agreement shall be terminated, Target shall not, nor shall it cause, suffer, or permit its directors, officers, employees, representatives, agents, accountants, or attorneys to, initiate or solicit, directly or indirectly, any inquiries or the Seller shall maintain making of any proposal, or engage in negotiations or discussions with any person, or provide any confidential information or data to any person, with respect to any acquisition, business combination or purchase of all Assets and physical structures of Stuart Nissan and Stuart Volvo in the same condition as at the expiration or substantially all of the Inspection Periodoutstanding shares or Assets, reasonable wear and tear excepted;or any significant Asset of Target, or any direct or indirect equity interest in Target or otherwise facilitate any effort or attempt to seek any of the foregoing. Furthermore, Target shall immediately terminate any existing activities, discussions, or negotiations with any person other than Buyer with respect to any of the foregoing.
(g) Each party shall cooperate in obtaining all required consents, audits, and completion of other transactions contemplated to have occurred as of the Seller will Closing and to use reasonable best efforts to maintain all present employees and cause the fulfillment of the conditions to preserve the goodwill associated other party's obligation to consummate the transactions contemplated hereby. Target shall update the Schedules hereto to a date that is within one week of the Closing Date to reflect changes therein that are permitted to occur under this Agreement. No such update shall be deemed to cure (or affect the rights of Buyer with respect to) any breach of any representation or warranty made in this Agreement or have any effect for the Business;purpose of determining satisfaction of the conditions set forth in subsection 5.1(a) hereof or the obligations by Target set forth in Section 6 hereof.
(h) the Seller Each party will maintain customer information pertaining give to the Business consistent with its past practices;other prompt written notice of any material adverse change in any fact or circumstance respecting which a representation, warranty, covenant or agreement has been made by it herein.
(i) Unless and until the Seller will transactions contemplated hereby shall have been consummated, Buyer and Target shall hold all information and documents received from the other party in strictest confidence, except such information and documents available to the public, and all such information in written form and documents shall be returned to the party originally delivering them in the event the transactions contemplated hereby are not sell any consummated. Buyer, before the Closing, and Target, both before and after the Closing, shall hold in strictest confidence all information concerning the terms of the Assets, except in Transaction Documents and the ordinary course of business;transactions contemplated thereby.
(j) Target shall prepare and timely file all Tax returns and amendments thereto required to be filed by it on or before the Seller will maintain insurance on the Business Assets in amounts Closing Date; provided, however, that Buyer shall have a reasonable opportunity to review such -------- ------- Tax returns and against risks consistent with its past practices;
(k) the Seller shall not enter into any written or oral agreements or preliminary letters of intent or agreements in principal for the sale of the Assets; and
(l) the Seller shall maintain in good standing the Nissan Lease and Volvo Lease (hereinafter defined) on the Business and shall keep in full force and effect the dealer agreements with Volvo and Nissan Motors and advise Purchaser of any written notifications, or memoranda with Nissan or Volvo received after the execution of this Agreement and received within six (6) months amendments thereto prior to the full execution filing thereof. Target shall pay and discharge all Taxes, assessments and governmental charges upon or against it or any of this Agreement which in its properties or assets, and all liabilities at any way relate to any violation by Seller of time existing, before the dealer agreements with Nissan Motors or Volvo adversely affecting the ability of dealer agreements to be entered into by Nissan Motors same shall become delinquent and Volvo and Purchaser, or relate to the renewal or term thereofbefore penalties accrue thereon.
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Covenants Pending Closing. The Seller covenants and agrees with Purchaser that, upon full execution of this Agreement and pending the Closing:
(a) Prior to the business Closing, Buyer shall be entitled, through its employees and representatives, to make such investigations and examinations of the Seller shall be conducted in the ordinary course consistent with its past practiceParties, their books and records, business, and assets as Buyer may reasonably request for the sole purpose of verifying the representations and warranties of Seller as contained in this Agreement. Seller shall not enter into any material new contracts furnish Buyer and its representatives during such period with information concerning the Canberra Business and Acquired Assets as Buyer or incur any material new obligations (except for the purchase of automobiles such representatives may reasonably request and other vehicles in the ordinary course of business), nor shall the Seller amend, otherwise modify or terminate any Contracts without the prior written consent of the Purchaser, other than in the ordinary course of business. Without limiting the foregoing, the Seller shall promptly notify the Purchaser of any material changes in the cause Seller's conduct of the Business;
(b) the Seller shall not, directly or indirectly, in any way contact, initiate, enter into, participate in or conduct any discussions or negotiations, or enter into any agreements, whether written or oral, with any person with respect to the sale of all or part of the Assets or the Business, except for transactions in the ordinary course of the Business consistent with past practice;
(c) the Seller will give to the Purchaser's officers, employees, counselconsultants, accountants agents, accountants, and other representatives free attorneys to cooperate with Buyer and full access to such representatives. Any such investigations and the right to inspectexaminations shall be conducted at reasonable times, under reasonable circumstances, during normal business hours, all and at the normal place of Seller's business.
(b) From the date of this Agreement through the Closing Date, except as otherwise contemplated in this Agreement, or as previously approved by Buyer or included in a business plan approved by Buyer, the Seller Parties shall conduct the Canberra Business only in the Ordinary Course of Business and consistent with its prior practices, shall not make or institute any unusual or novel methods of purchase, sale, lease, management, accounting, or operation or that vary materially from those in use as of the premisesdate hereof. In addition, properties, assets, records, contracts, the Seller Parties shall use their reasonable efforts: (i) to preserve the business plans and other documents relating organization of the Canberra Business intact; (ii) to keep available to the Business, and shall permit them to consult with Canberra Business the services of the present officers, employees, counselagents, accountants and other representatives independent contractors employed or engaged primarily in the Canberra Business or that provide services to the operation of the Seller Canberra Business; (iii) to preserve for the purpose benefit of making such investigation Buyer the goodwill of the suppliers, customers, licensors, and distributors of the Canberra Business as and others having business relations with it; and (iv) to cooperate with Buyer and use reasonable efforts to assist Buyer in obtaining the Purchaser shall desire consent of any note holder, licensor, distributors, or other party to make, provided that any agreement with any Seller Party where the consent of such investigation shall not unreasonably interfere with other party may be required or advisable by reason of the Seller's business operations. Furthermoretransactions contemplated in this Agreement or in the Transaction Documents.
(c) From the date hereof through the Closing Date, the Seller will furnish Parties shall: (i) maintain in force (including necessary renewals thereof) the insurance policies currently in effect, except to the Purchaser extent that they may be replaced with equivalent policies appropriate to insure the Acquired Assets and the Canberra Business, to the same extent as currently insured; (ii) comply in all such documents material respects with all agreements related to the Canberra Business; (iii) duly and copies of documents timely file all Tax Returns related to the Canberra Business required to be filed with Authorities and records duly observe and information with respect conform, in all material respects, to its affairs all applicable laws and copies orders related to the Canberra Business; and (iv) notify Buyer of any working papers relating thereto as lawsuit, claim, proceeding, or investigation that after the Purchaser shall from time date hereof is threatened or commenced against Seller, any Canberra Affiliate or any Joint Affiliate related to time request;the Canberra Business.
(d) Unless and until this Agreement shall be terminated, the Seller Parties shall not, nor shall any of them cause, suffer, or permit their respective directors, officers, employees, representatives, agents, accountants, or attorneys to, initiate or solicit, directly or indirectly, any inquiries or the making of any proposal, or engage in negotiations or discussions with any Person, or provide any confidential information or data to any Person, with respect to any acquisition, business combination or purchase of all or substantially all of the Canberra Business. Furthermore, Seller shall immediately terminate any existing activities, discussions, or negotiations with any Person other than Buyer with respect to the foregoing.
(e) Each Party shall cooperate and use its respective commercially reasonable efforts in obtaining all required consents, including, without limitation, to the transfer of permits and licenses (including, but not limited to, those related to Environmental Laws and Governmental Licenses and Permits), audits, and completion of other transactions contemplated herein to have occurred as of the Closing and to use reasonable efforts to fulfill cause the fulfillment of the conditions to the other Party's obligation to consummate the transactions contemplated hereby. Each Party's representations and warranties contained in this Agreement and in all Schedules delivered by such Party hereunder shall be updated to the Closing Date (except for representations and warranties that speak as of a specific date) by such Party and delivered to the other Party(ies); PROVIDED that such updates shall be for information purposes only and shall not alter or modify the representations or warranties made pursuant to Sections 3 or 4 of this Agreement.
(f) Each Party will give to the other prompt written notice of any material adverse change in any fact respecting which a representation or warranty has been made by it in this Agreement.
(g) Seller and Buyer shall file any information and documents that remain to be filed under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder (the "HSR ACT") as promptly as practicable at such time as such items are required to be filed, if any. At Buyer's election, Seller and Buyer shall file voluntary notification under Section 721 of the Omnibus Trade and Competitiveness Act of 1988 (amending Title VII of the Defense Production Act, 50 U.S.C. App. ss. 2170 (1997)) (the "EXON-XXXXXX AMENDMENT"). Seller and Buyer shall as promptly as practicable comply with any other laws of any country and the European Union which are applicable to any of the transactions contemplated hereby and pursuant to which any consent, approval, order, or authorization of, or registration, declaration, or filing with any Authority or any other Person in connection with such transactions is necessary. The Parties hereby agree to (i) cooperate with each other in connection with such HSR Act, Exon-Xxxxxx Amendment and other country or European Community filings and compliance, which cooperation shall include, without limitation, furnishing the other with any information or documents that may be reasonably required in connection with such filings and compliance; (ii) promptly file, after any request by the Federal Trade Commission ("FTC") or Department of Justice ("DOJ") or other Authority, as the case may be, and after appropriate negotiation with the FTC or DOJ or other Authority, as the case may be, of the scope of such request, any information or documents requested by the FTC or DOJ or other Authority, as the case may be; and (iii) furnish each other with any correspondence from or to, and notify each other of any other communications with, the FTC or DOJ or other Authority, as the case may be, that relates to the transactions contemplated hereunder, and to the extent practicable, to permit each other to participate in any conferences with the FTC or DOJ or other Authority, as the case may be.
(h) To the extent required under applicable law, or if Buyer or Seller or any of their respective Affiliates shall become party to any litigation, or claim before any Authority or self-regulatory organization (E.G., Nasdaq, NASD), challenging the transactions contemplated in this Agreement due to an alleged failure to obtain, by written consent or at a meeting of Seller's stockholders, the approval from such number of its common stockholders as may be required under applicable law for approval as of the record date therefor, of this Agreement and the consummation of the transactions contemplated hereby (the "SELLER STOCKHOLDER APPROVAL"), then Seller shall seek to obtain the Seller Stockholder Approval. If Seller is obligated to seek Seller Stockholder Approval pursuant to this Section 5.1(h), the Board of Directors of Seller shall recommend and declare advisable the Seller Stockholder Approval and Seller shall take all lawful action to solicit, and use its best efforts to obtain promptly, the Seller Stockholder Approval.
(i) To the extent required under applicable law, Seller will, as promptly as practicable, prepare and file with the United States Securities and Exchange Commission (the "SEC") a proxy statement and form of proxy or information statement in connection with obtaining the Seller Stockholder Approval (such proxy statement or information statement, together with any amendments of either or supplements thereto, in the form mailed to Seller's stockholders entitled to vote on the matters set forth in such proxy statement, is herein called the "PROXY STATEMENT" or "INFORMATION STATEMENT," respectively). If the filing of a Proxy Statement or Information Statement is required under applicable law, Seller will, and will cause its legal counsel and accountants to, use its best efforts to have or cause the Proxy Statement or Information Statement to conform in all material respects to applicable securities laws and regulations in form and substance acceptable to the SEC. Buyer shall furnish Seller all information concerning Buyer, its officers and directors, the holders of its capital stock and its Affiliates, and shall take any action as Seller may reasonably request in connection with Seller's preparation of the Proxy Statement or Information Statement. Buyer shall advise Seller in writing if, at any time prior to the Seller stockholders' meeting, Buyer shall obtain Knowledge of any event, with respect to Buyer or its officers and directors, holders of its capital stock or Affiliates, that might make it necessary or appropriate to amend the Proxy Statement or Information Statement in order to make the statements contained or incorporated by reference therein, in light of the circumstances under which they were made, not misleading or to comply with applicable law.
(i) Seller shall provide prompt written notice to Buyer, and Buyer shall provide prompt written notice to Seller (in each case within five (5) business days), of any litigation, arbitration, or administrative proceeding pending or, to its Knowledge, threatened against any Seller Party on the one hand, or Buyer, on the other hand, which challenges the transactions contemplated hereby.
(ii) Seller will provide prompt written notice to Buyer (in any event within five (5) business days) of any change in any of the information contained in its representations and warranties made in Section 5 3 hereof or any Exhibits or Schedules referred to herein or attached hereto and shall promptly furnish any information which Buyer may reasonably request in relation to cause such change; PROVIDED, HOWEVER, that such notice shall not operate to cure any breach of the representations and warranties set forth made in Section 3 hereof or any Exhibits or Schedules referred to herein to remain true and correct;
(e) the Seller shall not incur any debts, dues, claims, encumbrances, liens, mortgages, or other indebtedness without the prior written consent of Purchaser, other than in the ordinary course of business;
(f) the Seller shall maintain all Assets and physical structures of Stuart Nissan and Stuart Volvo in the same condition as at the expiration of the Inspection Period, reasonable wear and tear excepted;
(g) the Seller will use reasonable efforts to maintain all present employees and to preserve the goodwill associated with the Business;
(h) the Seller will maintain customer information pertaining to the Business consistent with its past practices;
(i) the Seller will not sell any of the Assets, except in the ordinary course of business;
(j) the Seller will maintain insurance on the Business Assets in amounts and against risks consistent with its past practices;
(k) the Seller shall not enter into any written or oral agreements or preliminary letters of intent or agreements in principal for the sale of the Assets; and
(l) the Seller shall maintain in good standing the Nissan Lease and Volvo Lease (hereinafter defined) on the Business and shall keep in full force and effect the dealer agreements with Volvo and Nissan Motors and advise Purchaser of any written notifications, or memoranda with Nissan or Volvo received after the execution of this Agreement and received within six (6) months prior to the full execution of this Agreement which in any way relate to any violation by Seller of the dealer agreements with Nissan Motors or Volvo adversely affecting the ability of dealer agreements to be entered into by Nissan Motors and Volvo and Purchaser, or relate to the renewal or term thereofattached hereto.
Appears in 1 contract
