Operation and Maintenance of the Business. (a) From the date hereof until the Closing or termination of this Agreement by its terms, Seller shall conduct the Business in the Ordinary Course of Business in substantially the same manner as previously conducted. (b) From the date hereof until the Closing or termination of this Agreement by its terms, except as otherwise contemplated by this Agreement or consented to in writing by Buyer, Seller shall not: (i) issue, sell or deliver shares of any of Seller’s Equity Securities or issue or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any shares of Seller’s Equity Securities; (ii) effect any recapitalization, reclassification, stock dividend, stock split or like change in Seller’s capitalization; (iii) amend Seller’s organizational documents; (iv) make any redemption or purchase of any shares of any member of Seller’s Equity Securities; (v) declare or pay any non-cash dividend or make any other non-cash distribution to Seller’s members or equityholders whether or not upon or in respect of any shares of Seller’s Equity Securities; (vi) incur any Indebtedness; (vii) permit, allow or suffer any of Seller’s assets to become subjected to any Lien (other than Permitted Liens) other than in the Ordinary Course of Business; (viii) except as contemplated by this Agreement, cancel any Indebtedness of Seller that is material individually or in the aggregate or waive any claims or rights of substantial value; (ix) make any change in any method of financial accounting or accounting practice or policy other than those required by GAAP; (x) write off as uncollectable any notes or Accounts Receivable; (xi) commit to pay any bonus or other amount not previously required to be paid, or increase or accelerate the due date of compensation, to any officer, director, agent, employee or consultant of Seller; (xii) accelerate any monies due to or payable by Seller (including Accounts Receivable of Seller); (xiii) acquire by merging or consolidating with, or by purchasing any of the assets of, or by any other manner, any Person or division thereof or otherwise acquire any assets (other than in the Ordinary Course Business) that are material; (xiv) make any capital expenditure commitments which, in the aggregate, exceed $50,000 and are outside the Ordinary Course of Business, other than maintenance capital expenditures consistent with Seller’s budget; (xv) sell, lease, license or otherwise dispose of any of Se...
Operation and Maintenance of the Business. Negative Covenants 5.2(k) Existing Sale Contracts 5.2(p) Company Capital Expenditure Budget 5.2(r) Branch Closure Applications 6.6(e) Indemnification Premiums 7.6(d) Employees and Employee Benefits
Operation and Maintenance of the Business. Prior to the Closing, unless disclosed on Schedule 6.1 or unless Buyer otherwise consents in writing, the Sellers will:
(a) conduct the Business only in the Ordinary Course of Business; use commercially reasonable efforts, consistent with sound business practice, to (i) keep in full force and effect its existence and all material rights, franchises, and contractual rights relating or pertaining to the Business; (ii) preserve their present relationships with their employees, customers, suppliers, service providers, landlords and other Persons with whom the Sellers have business relations; (iii) maintain the assets included in the Purchased Assets in such general state of repair as is reasonably necessary for the conduct of the Business consistent with then present needs and past practices, including replacement in accordance with reasonably prudent business practices of any inoperable, worn out or obsolete assets with assets of quality consistent with reasonably prudent business practices and then current needs and, in the event of a condemnation, casualty, loss or other material damage to any of the assets prior to the Closing Date, use commercially reasonable efforts to either repair or replace such condemned or damaged property; and NYC#: 148660.21
(b) maintain the books, accounts and records of the Business in accordance with past custom and practice as used in the preparation of the Financial Statements. Nothing contained in this Agreement shall give Buyer, directly or indirectly, the right to control or direct the operations of the Business prior to the Closing. Prior to the Closing, the Sellers shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over the Business.
Operation and Maintenance of the Business. Prior to the Rights Offering Closing, except as expressly contemplated by this Agreement (including the actions required to be taken to comply with the Interim Operating Plan), permitted by Section 5.12(b), set forth in Section 5.1 of the Disclosure Letter or unless the Sponsor otherwise consents in writing (such approval or consent not to be unreasonably withheld, conditioned or delayed), the Company shall and shall cause its Subsidiaries to:
(a) use reasonable best efforts to conduct the business of the Company and its Subsidiaries substantially in the Ordinary Course of Business (including with respect to (i) maintenance of working capital balances, collection of accounts receivable, payment of employee wages or compensation, payment of employee benefits, payment of accounts payable and cash management practices generally and (ii) making capital expenditures substantially consistent with the capital expenditure budget set forth in Exhibit C (“Interim Operating Budget”));
(b) use reasonable best efforts to keep in full force and effect the existence of the Company and each of its Subsidiaries and all material Permits, franchises and Contracts that are believed by the Company in good faith to be advantageous to it;
(c) use reasonable best efforts to cause its current insurance policies that are material to their respective businesses or assets not to be canceled or terminated or any of the coverage thereunder to lapse, unless, simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies for substantially similar premiums are in full force and effect;
(d) use reasonable best efforts to keep its organization and properties substantially intact, including reasonably maintaining its present operations, physical facilities and its present relationships with independent contractors, lessors, licensors, suppliers, customers and others having business relations with it and retain employees of the Company or its Subsidiaries who are performing satisfactorily, in each case that or whom are believed by the Company in good faith to be advantageous to it;
(e) maintain its books, accounts and records in accordance with applicable Law and GAAP and, to the extent consistent therewith, past practice;
(f) maintain copies of all written communications, reports and other materials provided to any holders of or agents for any of its Senior Secured In...
Operation and Maintenance of the Business. 11 6.2 Negative Covenants of the Company 12 6.3 Information 13 (a) Interim Reports 13 (b) Access 13 (c) Exclusivity 13
Operation and Maintenance of the Business. Prior to the Closing, unless disclosed on Schedule 6.1 or unless Buyer otherwise consents in writing, the Company will:
(a) Conduct its business and operations only in the ordinary course of business consistent with past practice;
(b) Use commercially reasonable efforts, consistent with sound business practice, to keep in full force and effect its existence and all material rights, franchises, Proprietary Rights and contractual rights relating or pertaining to its business;
(c) Maintain its assets in such general state of repair as is reasonably necessary for the conduct of its business consistent with then present needs and past practices, including replacement in accordance with reasonably prudent business practices of any inoperable, worn out or obsolete assets with assets of quality consistent with reasonably prudent business practices and then current needs and, in the event of a condemnation, casualty, loss or other material damage to any of the assets prior to the Closing Date, either use commercially reasonable efforts to repair or replace such condemned or damaged property through (and only to the extent of) the use of the proceeds of such condemnation or insurance, or preserve such proceeds for use by the Surviving Company following the Effective Time;
(d) Maintain its books, accounts and records in accordance with past custom and practice as used in the preparation of the December 31, 2012 Balance Sheet and the accompanying interim financial statements;
(e) Comply in all material respects with all Legal Requirements; and
(f) Not take any action which would adversely affect the ability of the parties to consummate the transactions contemplated by this Agreement.
Operation and Maintenance of the Business. From the date of this Agreement through the Closing Date, unless Buyer otherwise consents in writing, Seller will:
(a) conduct the Business only in the Ordinary Course;
(b) make capital and promotional expenditures only in the Ordinary Course;
(c) not sell or otherwise dispose of (by dividend, distribution or otherwise) any Asset other than dispositions in the Ordinary Course;
(d) maintain the Assets in such state of repair as is necessary for the conduct of the Business in the Ordinary Course, including replacement in accordance with reasonably prudent business practices of any Asset used in the Business that does not meet the standard described in Section 4.18(b) with assets of quality meeting such standard and, in the event of a condemnation, casualty, loss or other damage to any Asset used in the Business prior to the Closing Date, whether or not it is insured, use commercially reasonable efforts either to repair or replace such condemned or damaged property or to use the proceeds of such condemnation or insurance in such other manner as mutually agreed upon by them and Buyer;
(e) not take or fail to take any action which would cause any of the representations set forth in Article IV hereof to be untrue;
(f) cause its current insurance (or reinsurance) policies not to be canceled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies are in full force and effect;
(g) use commercially reasonable efforts to keep in full force and effect their existence and all rights, franchises, Proprietary Rights and contractual rights relating or pertaining to the Business;
(h) use reasonable efforts to keep its present business organization, including the present business operations, physical facilities, working conditions and employees and their present relationships with lessors, licensors, suppliers, customers, independent contractors and others having business relations with it;
(i) maintain its books, accounts and records in the Ordinary Course as used in the preparation the Financial Statements;
(j) comply in all material respects with all applicable Legal Requirements and all contractual obligations applicable to the Business or the Assets, and pay all applicable Taxes which are due and payable; and
(k) not enter into any Contract, agreement or transaction, relatin...
Operation and Maintenance of the Business
