Operation of Business Pending Closing. Seller will not engage in any practice, take any action or enter into any transaction outside the ordinary course of the Business and will continue to operate the Purchased Assets in a manner consistent with the past practices of the business, including maintenance and repair of the Vessels and related equipment. Without limiting the foregoing:
(a) other than a forced sale because of a Total Loss, Seller will not sell, transfer or assign any of the Purchased Assets or agree to sell, transfer or assign any of the Purchased Assets, other than inventory used in the ordinary course of business;
(b) Seller will not impose or permit to be imposed any Encumbrance upon any of the Purchased Assets;
(c) Seller will keep in full force and effect the currently existing insurance coverage on the Purchased Assets;
(d) Seller will not enter into any contract or charter (or similar arrangement) with a term greater than 30 days with respect to the Vessels without the prior consent of Buyer;
(e) Seller will inform Buyer as promptly as practicable of the occurrence of any destruction, material damage or material loss of any Purchased Asset;
(f) Seller will perform in all material respects its obligations under all agreements that are related to any of the Purchased Assets;
(g) Seller will continue to purchase supplies and similar items in the ordinary course of business, and will continue to replenish inventory and spare parts on the Vessels in accordance with past practices;
(h) Seller will continue to maintain and operate the Vessels in conformity with the past practices of Seller; and
(i) Seller will use commercially reasonable efforts to keep intact the relationships of the Business with its licensors, suppliers, customers and employees.
Operation of Business Pending Closing. Prior to the Closing Date, except as set forth in subsection (b) below and except as necessary to effect the transactions contemplated by this Agreement, or except with the prior consent of Satellink, Newco shall conduct its business in the usual and ordinary course and only as necessary to perform its obligations under the Management Agreement and the Reseller Agreement, and without limiting the generality of the foregoing clause, Newco shall not do any of the following:
(i) amend its articles of incorporation or bylaws, or merge, consolidate, liquidate or dissolve;
(ii) issue any capital stock, any securities convertible or exchangeable into capital stock, or any options, warrants or rights with respect to capital stock, or split, subdivide or reclassify its capital stock;
(iii) declare or pay any dividend or make any other distribution on its capital stock;
(iv) increase the compensation or benefits of officers or employees of Newco or pay any bonuses except for normal and customary increases made or bonuses paid or accrued in accordance with past practices;
(v) create or incur any Lien on any of its properties; or, except for the issuance of insurance contracts or policies and the settlement of insurance claims in the ordinary course of business, incur or assume any guaranty or other liability to discharge an obligation of another, or incur or assume any obligations for money borrowed, or cancel or discount any material debt owed to it;
(vi) enter into or terminate any Contract;
(vii) make any expenditure for fixed assets;
(viii) do or fail to do anything that will cause a breach of, or default under, any Contract; or
(ix) make any change (whether or not material) in its accounting procedures, methods, policies or practices or the manner in which Newco maintains its records.
Operation of Business Pending Closing. (a) Prior to the Closing Date, except as set forth in subsection (b) below and except as necessary to effect the transactions contemplated by this Agreement, or except with the prior consent of Buyer, each of Premier and Premier New Orleans shall conduct its business in the usual and ordinary course as currently being conducted, and without limiting the generality of the foregoing clause, neither Premier nor Premier New Orleans shall do any of the following:
(i) amend its articles of incorporation or bylaws, or merge, consolidate, liquidate or dissolve;
(ii) issue any capital stock, any securities convertible or exchangeable into capital stock, or any options, warrants or rights with respect to capital stock, or split, subdivide or reclassify its capital stock;
(iii) declare or pay any dividend or make any other distribution on its capital stock;
(iv) increase the compensation or benefits of officers or employees of Premier or Premier New Orleans or pay any bonuses except for normal and customary increases made or bonuses paid or accrued in accordance with past practices;
(v) create or incur any lien, encumbrance, mortgage, pledge, charge or security interest whatsoever on any of its properties; or, except for the issuance of insurance contracts or policies and the settlement of insurance claims in the ordinary course of business, incur or assume any guaranty or other liability to discharge an obligation of another, or incur or assume any obligations for money borrowed, or cancel or discount any material debt owed to it;
(vi) enter into or terminate any Material Contract;
(vii) make any expenditure for fixed assets in excess of $5,000 for any single item or $10,000 in the aggregate;
(viii) do or fail to do anything that will cause a breach of, or default under, any Material Contract; or EXECUTION COPY
(ix) make any change (whether or not material) in its accounting procedures, methods, policies or practices or the manner in which Premier or Premier New Orleans maintains its records.
(b) Notwithstanding subsection (a) above, prior to the Effective Time, each of Premier and Premier New Orleans shall pay all accrued but unpaid bonuses owed by Premier and Premier New Orleans to their respective employees.
Operation of Business Pending Closing. From and after the date hereof and prior to the Closing Date, except with the consent of Buyer, which shall not be unreasonably withheld or delayed, Seller shall:
(a) conduct its Business in substantially the same manner as presently conducted, and refrain from entering into any transaction or Contract which (i) is not in the ordinary course of business and consistent with past practice (ii) requires Seller to make extraordinary product deliveries for a period that could reasonably extend for more than 90 days past the Closing Date, (iii) creates a new consignment arrangement or vendor managed inventory arrangement that is inconsistent with Seller's past business practices or (iv) gives any Large Customer the right to receive, upon the attainment of specified sales volumes or otherwise, or the opportunity to receive, an incentive, discount, refund, rebate, incentive allowance, earned cost savings, credit (whether for products or for cash) or other price allowance of any kind, individually or in the aggregate with respect to such Large Customer, in excess of 3% on an annual basis, unless reasonably required to meet a competitive situation (but nothing herein shall prevent Seller from complying with any existing program);
(b) notify Buyer of (i) any unexpected Material emergency or other Material change in the normal course of the operation of the Business or the Purchased Assets, and (ii) any Litigation (or written communications indicating that the same may be reasonably contemplated), affecting the Business or the Purchased Assets, and keep Buyer fully informed of such events and permit its representatives prompt access to all materials prepared in connection therewith (other than documents subject to the attorney-client privilege); (c) refrain from committing to any new trade or industry show space or signage or point of purchase displays unless failing so to commit might adversely affect the Business if the transactions contemplated hereby do not close; (d) promptly notify Buyer in writing of the occurrence of any Material Adverse Change with respect to the Business or the Purchased Assets or of any condition or event which could reasonably be expected to result in such a Material Adverse Change; and (e) use its reasonable commercial efforts to protect and preserve for the benefit of the Buyer (i) Seller's relationships with its employees, customers and suppliers and (ii) the goodwill of the Business. Notwithstanding anything herein to the contrary, Sel...
Operation of Business Pending Closing. Seller will not (and will cause Subsidiary not to) engage in any practice, take any action, or enter into any transaction outside its ordinary course of business and will continue to operate (and cause Subsidiary to operate) the Purchased Assets in a manner consistent with the past practices of Seller and Subsidiary, as applicable, and accepted oilfield practice, including maintenance and repair of operating Vessels and related equipment. Without limiting the foregoing:
(a) other than a forced sale because of loss, Seller will not (and will cause Subsidiary not to) sell, transfer or assign any of the Purchased Assets;
(b) except as otherwise permitted by such contracts, Seller will not accelerate, terminate, modify or cancel any contracts or any other agreement, (or series of related agreements) to which Seller is a party or by which Seller is bound that is related to any of the Vessels involving a commitment of greater than $300,000.00 or a term of more than three (3) months, in each case; without the prior written consent of Buyer; provided, however, that no approval of Buyer shall be required in the event Seller accelerates, terminates, modifies or cancels any such agreement, contract or license as a result of Seller’s not being paid thereunder, after commercially reasonable efforts have been made by Seller to obtain payment, or as a result of a material default by the other party to such contract;
(c) Seller will not impose or permit to be imposed (and will cause Subsidiary not to impose or permit to be imposed) any Encumbrance upon any of the Purchased Assets that will not be fully released at Closing;
(d) Seller will inform Buyer as promptly as practicable of the occurrence of any destruction, material damage, or material loss of any Purchased Asset;
(e) Seller will perform (and cause Subsidiary to perform) in all material respects their respective obligations under all agreements that are related to any of the Purchased Assets;
(f) Seller will continue to purchase supplies and similar items in the ordinary course of business; and will continue to replenish inventory and spare parts in accordance with past practices;
(g) Seller will continue to maintain and operate the Vessels and the Real Property, and will cause Subsidiary to maintain and operate the Real Property, in conformity with customary practices of Seller and Subsidiary, as applicable, for other vessels and property owned by it and industry standards and practices for vessels and property o...
Operation of Business Pending Closing. Seller will use its reasonable best efforts to cause MSCTC to conduct its business according to its ordinary and usual course of business and substantially in the manner heretofore conducted and will use its reasonable best efforts to preserve in all material respects the business organization and business relationships of MSCTC intact. By way of amplification and not limitation, Xxxxx, MLD and MSCTC each shall not, between the date of this Agreement and the Closing Date, directly or indirectly do, or propose or commit to do, any of the following, except as contemplated by this Agreement or as previously disclosed with reasonable specificity to Buyer, or except in the ordinary course of business and in a manner consistent with past practice and in compliance with applicable laws, without the prior written consent of Buyer, such consent not to be unreasonably withheld or delayed: (a) Amend or otherwise change their Articles of Incorporation, By-Laws or Partnership Agreement; (b) Issue, deliver, sell, pledge, dispose of or encumber, or authorize or commit to the issuance, sale, pledge, disposition or encumbrance of, (i) any shares of capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock, or any other ownership interest (including, but not limited to, stock appreciation rights or phantom stock), of Xxxxx or MLD, or (ii) any assets of Xxxxx, MLD or MSCTC, except for sales of services and products in the ordinary course of business and in a manner consistent with past practice; (c) Declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock (except as specifically contemplated by this
Operation of Business Pending Closing. Prior to the Closing Date, except as necessary to effect the transactions contemplated by this Agreement, or except with the prior consent of Satellink, each Cape Fear Entity shall conduct its business in the usual and ordinary course as currently being conducted, and without limiting the generality of the foregoing clause, no Cape Fear Entity shall do any of the following:
(i) amend its articles of incorporation or bylaws, or merge, consolidate, liquidate or dissolve;
(ii) issue any capital stock, any securities convertible or exchangeable into capital stock, or any options, warrants or rights with respect to capital stock, or split, subdivide or reclassify its capital stock;
(iii) declare or pay any dividend or make any other distribution on its capital stock;
(iv) increase the compensation or benefits of officers or employees of any Cape Fear Entity or pay any bonuses except for normal and customary increases made or bonuses paid or accrued in accordance with past practices;
(v) create or incur any lien, encumbrance, mortgage, pledge, charge or security interest whatsoever on any of its properties; or, except for the issuance of insurance contracts or policies and the settlement of insurance claims in the ordinary course of business, incur or assume any guaranty or other liability to discharge an obligation of another, or incur or assume any obligations for money borrowed, or cancel or discount any material debt owed to it;
(vi) enter into or terminate any Material Contract;
(vii) make any expenditure for fixed assets in excess of $75,000 for any single item or $300,000 in the aggregate;
(viii) do or fail to do anything that will cause a breach of, or default under, any Material Contract; or
(ix) make any change (whether or not material) in its accounting procedures, methods, policies or practices or the manner in which any Cape Fear Entity maintains its records.
Operation of Business Pending Closing. Companies warrant, represent and covenant that pending the Closing Date, Companies shall continue to conduct their businesses and operations only in the ordinary course, Companies shall use their best efforts to preserve the business organization intact, shall, subject to normal fluctuations, maintain substantially the same balance of cash, accounts receivable, and inventory as existed on March 31, 2004, and shall maintain its books of account in a manner which fairly and accurately reflects its income, expenses and liabilities in accordance with generally accepted accounting principles consistently applied. Companies warrant, represent and covenant that during such period, unless Parent may have given such consent thereto in writing, which consent may be arbitrarily withheld, Companies will not:
(a) Incur an obligation or liability, absolute or contingent, other than current liabilities incurred in the ordinary and usual course of its business.
(b) Incur any indebtedness for money borrowed, make any loans or advances to any individual, firm or corporation or assume, guarantee, endorse or otherwise become responsible for the obligations of any individual, firm or corporation.
Operation of Business Pending Closing. Seller will not engage in any practice, take any action, or enter into any transaction outside its ordinary course of business and will continue to operate the Purchased Assets in a manner consistent with Seller’s past practices and accepted oilfield practice, including maintenance and repair of the Barge Rigs and related equipment. Without limiting the foregoing:
(a) other than as a result of a forced sale because of loss, Seller will not sell, transfer or assign any of the Purchased Assets;
(b) Seller will not impose or permit to be imposed any Encumbrance upon any of the Purchased Assets that will not be fully released at Closing;
(c) Seller will inform Buyer as promptly as practicable of the occurrence of any destruction, material damage or loss or transfer of any Purchased Asset; and
(d) Seller will continue to purchase supplies and replenish inventory in the ordinary course of business consistent with its past practices.
Operation of Business Pending Closing. Prior to the Effective Time, except as necessary to effect the transactions contemplated by this Agreement, or except as set forth on Schedule 7.5, with the prior written consent of Parent, the Company shall conduct its business in substantially the same manner it was conducted during the prior 24 month period. Without the prior written consent of Parent (which consent may be reasonably or unreasonably withheld by Parent in its sole discretion), the Company shall not undertake any of the actions that would cause the representation of the Company in Section 4.9 to be untrue if such representation were being made on the date of such action.
