Interim Operations of Seller. Subject to any obligations as debtors or debtors-in-possession under the Bankruptcy Code, or any Order of the Bankruptcy Court, Sellers covenant and agree that, after the date hereof and prior to the Closing Date, except as expressly provided in this Agreement or as may be agreed in writing by Purchaser:
(a) except as set forth on Schedule 6.1(e), the Business shall be conducted substantially in the same manner as heretofore conducted, and Sellers shall use commercially reasonable efforts to preserve the business organization of the Business intact, keep available the services of the current officers and employees of the Business and maintain the existing relationships with customers, suppliers, creditors, business partners and others having business dealings with the Business; provided, that this clause (a) shall not limit Sellers’ right to amend or terminate any Plan;
(b) prior to the Closing, Sellers or their Affiliates shall not modify, amend or terminate any of the Assumed Contracts, except in the Ordinary Course of Business or as necessary to assume and assign the Assumed Contracts pursuant to Section 365 of the Bankruptcy Code;
(c) Sellers or their Affiliates shall not terminate or permit to lapse any material Permits or other Government Authorizations of any Government Entities that are necessary for the operation of the Business and the failure to have which would cause a Material Adverse Effect, except when such termination or lapse results from any Order or other proceeding instituted by any Government Entity;
(d) Sellers or their Affiliates shall not lease, license, mortgage, pledge or encumber any Purchased Assets other than in the Ordinary Course of Business and under the DIP Agreement (provided that Sellers shall be able to transfer the Purchased Assets to Purchaser free and clear of all such liens and claims upon the Closing) or purchase, transfer, sell or dispose of any Purchased Assets other than in the Ordinary Course of Business or dispose of or permit to lapse any rights to any Transferred Intellectual Property other than in the Ordinary Course of Business;
(e) Sellers or their Affiliates shall not fire any Business Employee other than for cause and except as set forth on Schedule 6.1(e);
(f) Sellers or their Affiliates shall not make any change to increase the rate of base compensation or, other than in connection with a sale-related incentive or retention plan as such sale-related incentive or retention plan is approved by a Bankrupt...
Interim Operations of Seller. 22 SECTION 4.2 Access to Information............................................. 25 SECTION 4.3
Interim Operations of Seller. Prior to the Closing Date, unless Buyer has previously consented in writing thereto:
a. Seller will not with respect to the Purchased Assets: (i) acquire, sell, license, abandon, fail to maintain or otherwise dispose of, any material property or assets, tangible or intangible (other than in the Ordinary Course of Business), or (ii) mortgage or encumber any property or assets.
b. Seller will not deplete or waste the Purchased Assets, subject to normal business operation; and
c. No material adverse change shall have occurred in the Purchased Assets.
Interim Operations of Seller. Seller covenants and agrees that, except (i) as contemplated by this Agreement, (ii) entering into new warehousing/distribution arrangements to replace the agreement with Cosmetic Essence, Inc., PROVIDED that Seller has consulted with Buyer as to the terms with respect to such new arrangements prior to entering into any definitive agreement related thereto and that any such definitive agreement (A) has an initial term of 24 months or less and (B) is on terms no less favorable in the aggregate in any material respect than the current arrangement, based on 1997 sales volume and product mix, (iii) the continuation of the Affiliate transactions in Section 2.20 of the Disclosure Schedule, (iv) that Seller will have the right to delay payment of accounts payable by an amount not in excess of (A) $120,000, if Seller and/or its designees elect to purchase, and Buyer sells, the Dermablend Business, the National Cosmetics Business and the Iman Business pursuant to Sections 4.11 (a) and (b) or (B) $1,500,000, if Buyer retains the Dermablend Business but Seller and/or its designees elect to purchase, and Buyer sells, the National Cosmetics Business and the Iman Business pursuant to Section 4.11(b) or (v) with the prior written consent of Buyer, after the date hereof and prior to the Closing Date, Seller will cause:
(a) the Company and its Subsidiaries to conduct their businesses in the ordinary and usual course of business;
(b) the Company and its Subsidiaries not to amend their certifi cates of incorporation or bylaws or similar organizational documents;
(c) the Company not to (i) split, combine or reclassify the Shares, (ii) declare, set aside or pay any dividend or other distribution payable in cash, stock or property with respect to the Shares, (iii) issue or sell any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commit ments or rights of any kind to acquire, the Shares or (iv) redeem, purchase or otherwise acquire directly or indirectly any of its capital stock;
(d) the Company and its Subsidiaries not to (i) adopt any new employee benefit plan (including any stock option, stock benefit or stock purchase plan) or amend any existing employee benefit plan in any material respect, except as may be required by applicable law or (ii) materially increase any compensation or enter into or amend any employment, severance, termination or similar agreement with any of its present or future officers or directors;
(e) ...
Interim Operations of Seller. From and after December 31, 1997 through the Closing, except as disclosed on Schedule 5.2 Seller:
(a) Has and will conduct its Business only according to its usual, regular and ordinary course in substantially the same manner as heretofore conducted;
(b) Has and will maintain, keep and preserve the Property, Plant and Equipment in normal operating condition and repair, ordinary wear and tear excepted, and maintain insurance with respect to its assets and business as provided in Section 3.21;
(c) Has and will use reasonable efforts to preserve for Purchaser the goodwill of Seller's suppliers, customers, landlords and others having business relations with Seller;
(d) Has not and will not alter through merger, liquidation, reorganization, restructuring or in any other fashion, the corporate structure or ownership of Seller except for the exercise of options disclosed in Schedule 3.4 or otherwise as disclosed in or anticipated by this Agreement;
(e) Has not and will not revalue any of the Purchased Assets, settle or compromise any pending or threatened suit, action or claim relating to Seller or the transactions contemplated hereby, waive or release any right or claim of Seller or pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in, or contemplated by the Interim Balance Sheet or incurred in the ordinary course of business consistent with past practice;
(f) Has not and will not sell, encumber, assign or transfer any assets or properties which would have been included in the Purchased Assets if the Closing had been held on the Interim Balance Sheet Date or on any date subsequent thereto, except for the sale of rental x-ray equipment, inventory in the ordinary course of business consistent with past practice, other equipment not in excess of $50,000 and except for Permitted Encumbrances;
(g) Has not and will not amend or terminate any material agreement, contract, commitment or lease to which it is a party or by which it is bound other than termination of leases or commitments in the ordinary course of business consistent with past practice;
(h) Has not and will not make any material change in its customary operating methods (including its purchasing, marketing, selling and pricing practices and policies);
(i) Has not and will not make commitments or...
Interim Operations of Seller. Between the Effective Date and the Closing Date, Seller agrees that it shall not, nor shall it permit any of its subsidiaries to, enter into any enforceable contract, agreement, commitment or arrangement that would make the representations and warranties of the Seller untrue or incorrect as of the Closing.
Interim Operations of Seller. Seller covenants and agrees that, after the date hereof and prior to the Closing Date, except as expressly provided in this Agreement or as may be agreed in writing by Purchaser:
(a) neither Seller nor any Affiliate of Seller shall modify, amend or terminate any of the Servicing Agreements, other than the PSA Amendments;
(b) neither Seller nor any Affiliate of Seller shall transfer or dispose of any Purchased Assets; and
(c) neither Seller nor any Affiliate of Seller shall take, or agree to or commit to take, any action that would or is reasonably likely to result in any of the conditions to the Closing, as applicable, set forth in Article VII, not being satisfied, or would make any representation or warranty of Seller contained herein inaccurate in any material respect at, or as of any time prior to, the Closing Date or that would impair the ability of Seller or Purchaser to consummate the Closing in accordance with the terms hereof or materially delay such consummation;
Interim Operations of Seller. During the period from and after the [Effective Date or date of execution of this Agreement] and until the Closing Date, except with the prior written consent of the Buyer, Seller will conduct its business only in the ordinary and normal course consistent with past practice. Additionally:
Interim Operations of Seller. Except as contemplated by this Agreement, including any Exhibits and Schedules hereto, during the period from the date of this Agreement and continuing until the Closing Date, the Seller (i) shall carry on its businesses only in the usual, regular, and ordinary course in substantially the same manner as heretofore conducted and, to the extent consistent with such business, use all reasonable efforts to preserve intact its present organizations of such business, keep available the services of its present officers and employees and preserve its relationships with customers, suppliers, and others having business dealings with it, (ii) shall not take any action, or fail to take any action, that is reasonably likely to result in any of their respective representations and warranties set forth in this Agreement becoming untrue as though such representations and warranties are made as of and on the Closing Date, (iii) will not authorize or consummate any dividends or distributions of any assets to Seller’s shareholders, any consolidation, merger, sale of any of the assets other than in the ordinary course of business, or purchase of all or substantially all of the assets of any entity, or any other extraordinary corporate transaction, (iv) will not place any indebtedness or guaranty on the assets or place or allow any encumbrance on the assets and (v) will not terminate any material right or settle or agree to settle any litigation.
Interim Operations of Seller. Seller shall procure that, from the date of this Agreement until the Closing Date, except (i) as expressly provided in this Agreement or the other Transaction Documents, (ii) as set forth in the Disclosure Schedule on the date of this Agreement or (iii) as may be agreed in writing by Purchaser:
(a) the Business shall be conducted in the same manner as heretofore conducted and only in the ordinary course, and Seller shall (i) pay all of its liabilities and Taxes when due (subject to good faith disputes), (ii) maintain insurance coverage in amounts adequate to cover the reasonably anticipated risks relating to the operation, business, properties and assets of the Business and (iii) use its Reasonable Best Efforts to (A) preserve the business organization of the Business intact, (B) keep available the services of the current officers and employees of the Business and (C) maintain the existing relations with franchisees, customers, suppliers, contract manufacturers, direct labor suppliers, creditors, business partners and others having business dealings with or relating to the Business. Seller shall not institute any new methods of manufacture, purchase, sale, lease, management, accounting or operation relating to the Business or engage in any transaction or activity with respect to the Business other than minor changes in the ordinary course of business and consistent with past practice;
(b) Seller shall not adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
(c) Seller (with respect to the Business) shall not (i) terminate, modify or amend any Material Contract or waive, release or assign any material rights or claims, except in the ordinary course of business and consistent with past practice, (ii) transfer to any Person any rights to Transferred Intellectual Property other than non-exclusive license arrangements in the ordinary course of business, consistent with past practice, (iii) abandon, permit to lapse or otherwise dispose of any Business Intellectual Property, (iv) make any material change in any Business Intellectual Property, (v) dispose of or disclose to any Person, other than representatives of Purchaser, any Trade Secret that is Transferred Intellectual Property not theretofore a matter of public knowledge, except as necessary in the ordinary course of business, consistent with past practice, subject to written confidentiality agreements reasonably suffici...
