Operations Pending Closing. Between the date hereof and the Closing, except as (a) set forth in this Agreement or the Option Exercise Agreement, (b) contemplated by the applicable subsection of Schedule 5.01, or (c) required by applicable Law or the regulations or requirements of any regulatory organization applicable to WTGS TV, the Seller or the LIN Companies, as the case may be, unless Buyer otherwise consents in writing which request for consent shall be directed to and promptly considered in accordance with the terms and conditions of this Section 5.01 by Buyer and which consent shall (i) not be unreasonably withheld, conditioned or delayed in the case of clauses (c), (e), (f), (g), (h), (i), (l), (n), (r), (s), (t), (u) or (w), and (ii) which may otherwise be withheld in Buyer’s sole discretion, the LIN Companies shall, and Seller shall use commercially reasonable efforts to cause WTGS TV and, prior to the Merger Closing, the LIN Companies to, and the Seller shall, following the Merger Closing and prior to the Closing:
(a) operate the Station in the ordinary course and in all material respects in accordance with the Communications Laws, the FCC Licenses and with all other applicable Laws;
(b) not cause or permit, or agree or commit to cause or permit, by act or failure to act, any of the FCC Licenses to expire or to be revoked, suspended or adversely modified, or take or fail to take any action that would cause the FCC or any other Governmental Authority to institute proceedings (other than proceedings of general applicability) for the suspension, revocation or adverse modification of any of the FCC Licenses listed on Schedule 3.04(a);
(c) other than in the ordinary course of business or for the purpose of disposing of obsolete or worthless assets, not (i) sell, lease, license or dispose of or agree to sell, lease, license or dispose of any material assets unless replaced with similar items of substantially equal or greater value and utility or (ii) create, assume or permit to exist any Liens upon their assets, except for Permitted Liens;
(d) not dissolve, liquidate, merge or consolidate with any other entity;
(e) maintain, repair and replace the Tangible Personal Property, including any Tangible Personal Property which has been damaged prior to Closing, and maintain, repair and replace the Real Property, including any improvements thereon, which has been damaged prior to Closing, in each case in the ordinary course of business;
(i) upon reasonable written advance notice, give ...
Operations Pending Closing. At all times prior to the Closing or the sooner termination of this Agreement, Seller agrees: (a) to maintain, manage and operate the Property free from waste and neglect, in accordance with applicable law and consistent with its past management practices; (b) to maintain the Property in its current condition and state of repair (normal wear and tear and casualty loss excepted); (c) to maintain its existing casualty and liability insurance on the Property (to the extent such insurance continues to be available at commercially reasonable premiums); and (d) to perform all of its material obligations under the Tenant Leases and the Contracts. At all times after the expiration of the Inspection Period (or earlier waiver of the Inspection Contingency), Seller agrees (e) not to amend, modify or terminate or permit the termination of any of the Tenant Leases (other than for expansions, renewals and other changes contemplated by a Tenant Lease existing on the Date of this Agreement) or the Contracts without the prior written consent of Buyer, which shall not unreasonably be withheld or delayed; (f) not to lease or rent any portion of the Property without the prior written consent of Buyer, which shall not unreasonably be withheld or delayed; or (g) not to issue a new Contract (other than a Contract in the ordinary course of business and terminable on thirty (30) days or less notice by the owner of the Property) without the prior written consent of Buyer, which shall not be unreasonably withheld or delayed. All amendments and modifications of the existing Tenant Leases, and all new leases and rental agreements, made by Seller prior to Closing and permitted under this Agreement shall be considered part of the "Tenant Leases." All amendments and modifications of the existing Contracts, and all new contracts concerning utilities, maintenance, services or operation of the Property, made by Seller prior to Closing and permitted under this Agreement shall be considered part of the "Contracts."
Operations Pending Closing. Except as otherwise agreed by the Parties, between the date of this Agreement and the Closing (or the sooner termination of this Agreement), Seller and its Subsidiaries shall conduct the Business in substantially the same manner as the Ordinary Course of Business during the period preceding the date of this Agreement; provided, however, all new customer contracts may be handled through joint venture, teaming or similar agreements to be negotiated on a case by case basis between Seller and Buyer (any such customer contracts being referred to herein as "JV Contracts"); provided, however, that, (x) in the event the Closing does not occur on or before July 31, 2003, Seller may reduce the scope of its normal operations; and (y) in the event the Closing does not occur on or before the later of (I) August 31, 2003 or (II) 20 days after the Seller has finally resolved any comments made by the staff of the SEC with respect to the Seller Proxy Materials, but in no event later than September 20, 2003 (the date provided in this clause (y) being referred to as the "Outside Date"), Seller shall no longer be required to conduct the Business in the Ordinary Course of Business (without limitation, Seller shall have no further obligation to fund the Business), but, at Buyer's written request, Seller shall agree irrevocably to lease or cause to be leased to Buyer the Acquired Equipment, Acquired Inventory, employees of Seller and other assets necessary to conduct the Business on a subcontracting basis, including performing the Assumed Contracts (with the Buyer receiving the revenue therefrom), all on terms reasonably agreed upon by the parties. Without limiting the generality of the foregoing, Seller and its Subsidiaries shall not, without the prior consent of the Buyer, which shall not be unreasonably withheld:
(i) take any action which would, or could reasonably be expected to, result in a Material Adverse Effect;
(ii) mortgage, pledge, or subject to any Encumbrance the Acquired Assets or otherwise enter into any agreement or commitment that restricts the use of the Acquired Assets in any way;
(iii) sell, transfer, convey, assign or otherwise dispose of any of the Acquired Assets, except for the consumption of Acquired Inventory in the Ordinary Course of Business;
(iv) waive, release, settle, compromise or cancel any claims against third parties or debts owing to it or any rights with respect to Acquired Assets or Assumed Liabilities;
(v) settle or compromise, or agree to ...
Operations Pending Closing. Each of the Company, on one hand, and ORRV and the ORRV Subsidiary, on the other hand, covenants that from the date hereof through the Closing Date, except as otherwise provided in this Agreement; or with the prior written consent of the other parties, which shall not be unreasonably withheld or delayed, shall:
7.3.1 not undertake any transactions or enter into any contracts, commitments or arrangements other than in the ordinary course of business, use its good faith efforts to preserve the present Business and organization of such party, and to preserve the goodwill of others having business relationships with such party;
7.3.2 not enter into, renew, extend, modify, terminate, waive or diminish any right under any material lease, contract or other instrument, except in the ordinary course of business;
7.3.3 not allow any of such parties’ assets or properties to become subject to any Encumbrance that does not exist as of the date of this Agreement, except in the ordinary course of business;
7.3.4 maintain such party’s existing insurance coverages, subject to variations in amounts in the ordinary course of business;
7.3.5 not declare or make any dividends or distributions; and
7.3.6 not amend the organizational documents of such party.
Operations Pending Closing. The Seller hereby covenants to and agrees with the Buyer that, from the date hereof to the Closing Date or the termination of this Agreement, and subject to the requirement of the regulators that the Seller must control its own operations in accordance with past operating practice, the Seller shall not without the written consent of the Buyer, cause or allow the Bank to:
(a) fail to carry on its business in substantially the same manner as now being conducted;
(b) declare, pay or make any cash dividend, stock dividend or other distribution with respect to the Bank Shares outside of the ordinary course of business, except for (i) the Capital Dividend in accordance with Section 2.2 and (ii) dividends or distributions paid to Seller in the ordinary course in connection with the issuance of S-corporation tax dividends to Seller’s shareholders;
(c) issue or directly or indirectly sell, transfer or otherwise dispose of, or purchase, redeem, retire or otherwise acquire any Equity Securities of the Bank, or agree to commit to do so;
(d) subdivide or in any way reclassify any of the Equity Securities of the Bank;
(e) grant any option or right to purchase or execute any agreement or otherwise commit to issue any Equity Securities of the Bank;
(f) invest or take any actions to inject any additional capital or equity into the Bank other than increases in the Bank’s capital accounts arising due to earnings in the ordinary course of business;
(g) sell, transfer, lease, mortgage, pledge or otherwise dispose of or encumber any of the Bank’s assets or cancel any of the Bank’s claims except, in each case, in the ordinary course of business.
(h) fail to use its reasonable efforts to preserve the Bank’s business, organization and goodwill and its existing relationships with its respective customers;
(i) amend the Bank’s Articles of Incorporation or Bylaws;
(j) incur any obligation or liability or enter into any transaction except in the ordinary course of the Bank’s business;
(k) fail to take any action necessary and appropriate to maintain in full force and effect the Bank’s corporate existence, rights, licenses and franchises;
(l) pay or commit to pay any salary, fee or other compensation at a rate in excess of that prevailing on January 31, 2016;
(m) fail to maintain all existing policies of insurance with respect to the Bank in their present form and with their present coverage or comparable substitute policies; WHD/12223603.9 - 14 - (n) enter into any employment, agency ...
Operations Pending Closing. In order to ensure the continued operations of the Company and to insure the ongoing business operations of the Company, immediately upon execution of this Agreement, Catalyst shall have the right, but not the obligation, to designate the chief financial officer and a director of the Company. Said designee shall have the rights to manage the Company’s financial operations, contractual commitments, funding and banking requirements.
Operations Pending Closing. (a) After the Effective Date, without Buyer’s prior written consent, which may be provided by electronic mail, and which consent shall not to be unreasonably withheld, conditioned or delayed (provided, however, Buyer’s consent shall be deemed granted in the event Buyer does not object in writing thereto within five (5) business days after Seller requests such consent from Buyer), Seller shall not enter into any new Lease or any modification, amendment, restatement, termination, or renewal of any of the Leases except for letters of understanding, certificates, punch lists and other documents contemplated by the applicable Lease; provided, however, Seller may enter into such agreements if so required by a Lease (e.g. if a Tenant exercises a renewal option or expansion option). Seller shall promptly deliver a copy of any item described in the preceding sentence entered into or received by Seller following the Effective Date. Seller promptly shall deliver to Buyer a copy of any written notice of default given or received by Seller under any Lease from and after the Effective Date.
(b) After the Effective Date, Seller shall have the right to enter into standard service, construction, materials and maintenance contracts necessary for operation and maintenance of a Project (e.g. landscaping, security, parking lot sweeping, garbage removal, etc.), so long as such contracts are either: (i) at competitive rates and terminable upon thirty (30) days’ notice, or (ii) remain Seller’s sole responsibility and are not assigned at Closing. Seller’s execution of such contracts shall not require Buyer’s prior consent, however, Seller shall provide a copy of each said contract to Buyer promptly after its full execution. At or before each Closing, Seller shall terminate, without cost to the Buyer, all existing property management agreements for the Projects relating thereto.
(c) After the Effective Date, Seller also shall continue to maintain all casualty, liability and hazard insurance currently in effect with respect to the Projects to the extent such insurance is in place with respect to the Projects as of the Effective Date, or as required under the Leases.
Operations Pending Closing. Seller shall operate the Seller-operated Interests using the same standard of care as imposed on the "Operator" under the applicable joint operating agreements until Closing, or such later time as any applicable joint operating agreement may require, when such operation shall be turned over to, and become the responsibility of, Buyer or its designees. During the period from the date of this Agreement to Closing, Seller shall:
(i) consult with Buyer with respect to all AFE's over FIFTY THOUSAND DOLLARS ($50,000) net to the interests of Seller which are received by Seller with respect to any Interest, and consult with Buyer with respect to all material decisions to be made with respect to the Interests, including, without limitation, the incurring of costs for discretionary expenditures for operations in excess of FIFTY THOUSAND DOLLARS ($50,000) net to the interest of Seller for which AFE's are not prepared;
(ii) not transfer, sell, hypothecate, encumber, abandon or otherwise dispose of any material portion of the Interests (other than the sale of production in the ordinary course of business) or as required in connection with the exercise of third parties of preferential rights to purchase any of the Interests without the express written consent of Buyer;
(iii) permit Buyer and its representatives, at Buyer's sole risk and expense, to have reasonable access to the Interests operated by Seller, and shall assist Buyer in gaining reasonable access to the Interests operated by third parties.
Operations Pending Closing. Contributing Party agrees that from the date of this Agreement to the Closing:
4.2.1 Contributing Party will operate the Assets in a manner designed to preserve and protect its business, goodwill and relationships with its vendors, suppliers, customers and others; and comply, in all material respects, with all applicable laws.
4.2.2 Contributing Party will not do, or omit to do, any act which will cause a material breach of any commitment or obligation related to the Assets or amend, terminate or waive any material right of substantial value relating to the Assets.
Operations Pending Closing. Contributing Party agrees that from the date of this Agreement to the Closing:
4.3.1 Contributing Party will:
(a) maintain all of the Assets in customary repair, order and condition, reasonable wear, tear and use and damage by fire or unavoidable casualty excepted;
(b) operate the Assets and the Business in a manner designed to preserve and protect its business, goodwill and relationships with its vendors, suppliers, customers and others;
(c) maintain insurance on the Assets in the same manner and to the same extent as such insurance has been maintained with respect to the Assets prior to the date of this Agreement; and
(d) comply, in all material respects, with all applicable laws.
4.3.2 Contributing Party will not:
(a) grant any new salary increase to any employee engaged in the Business unless such increase has been previously approved by Company in writing, or such salary increase occurs in the ordinary course and does not exceed 3%;
(b) enter into or amend or alter any bonus, incentive compensation, deferred compensation, retirement, pension, savings, group insurance, death benefit or other fringe benefit plan, trust agreement or arrangement affecting its employees engaged in the Business that do not represent existing commitments; provided, however, that Contributing Party's handling of severance pay and related issues is not limited by this Section;
(c) enter into or assume any material contract, agreement, obligation, lease, license or commitment relating to the Assets, except in the ordinary course of the Business as contemplated by this Agreement or with Company's prior written approval;
(d) do, or omit to do, any act which will cause a material breach of any Material Agreement, Permit, commitment or obligation related to the Assets or the Business; or
(e) amend, terminate or waive any material right of substantial value relating to the Assets or the Business.
