Ordinary Conduct. Except as permitted by the terms of this Agreement or as set forth in Schedule 5(b), from the date hereof to the Closing, Sellers will cause the Companies and the Subsidiary to conduct the Business and Kraft Jacoxx xx conduct the UK Business in the ordinary course consistent with past practice. Sellers will cause the Companies and the Subsidiary to maintain all of their material properties and assets in substantially the same working condition and repair as of the date hereof, consistent with past practice, except for ordinary wear and tear, casualties, and acts of God. Kraft, through the Closing, will maintain the Tulare Facility and the Anaheim Facility and cause Kraft Jacoxx xx maintain the Bristol Facility in substantially the same working condition and repair as of the date hereof, consistent with past practice except for ordinary wear and tear, casualties and acts of God; provided, however, that proceeds of insurance in respect of any such casualty or act of God shall be utilized to repair or restore the facility or assets affected thereby. Except as provided in this Agreement or Schedule 5(b), from the date hereof until the Closing, none of Sellers, the Companies or the Subsidiary will do any of the following without the prior written consent of Buyer (written requests for which should be directed to Hanex X. Hxxxxx, Xxputy General Counsel): (i) amend its Certificate of Incorporation or Bylaws; (ii) declare or pay any dividend or make any other distributions to its shareholders whether or not upon or in respect of any shares of its capital stock; provided, however, that Buyer acknowledges that (x) the Companies and the Subsidiary do not maintain cash balances and, at or prior to the time of the Closing, Sellers will withdraw any cash balances of any of the Companies and the Subsidiary, (y) dividends or distributions may continue to be made by the Subsidiary to any of the Companies and (z) dividends or distributions of cash may continue to be made by any of the Companies to Sellers; (iii) redeem or otherwise acquire any shares of its capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stock; (iv) make any material change in the conduct of the Business, except as specifically contemplated by this Agreement; (v) sell, lease, license or otherwise dispose of, or agree to sell, lease, license or otherwise dispose of, any interest in any of the assets that are material, individually or in the aggregate, to the Companies and the Subsidiary, taken as a whole, except for sales of inventory in the ordinary course of business consistent with past practice; (vi) permit, allow or subject any of the assets or Owned Properties owned by any of the Companies, the Subsidiary or Kraft (with respect to the Tulare Facility and the Anaheim Facility) or the leasehold interests of the Companies and the Subsidiary in the Leased Properties to any mortgage, pledge, security interest, encumbrance or lien or suffer such to be imposed, except for Permitted Liens; (vii) except in the ordinary course of business consistent with past practice or as required by law or contractual obligations or other agreements existing on the date hereof, increase in any manner the compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its directors or officers; (viii) assume, incur or guarantee any obligation for borrowed money (other than intercompany indebtedness) having an outstanding principal amount in excess of $500,000 in the aggregate; (ix) except in the ordinary course of business consistent with past practice or as otherwise provided for in this Agreement, enter into a new agreement that would be included within the definition of Material Contracts if it had been entered into as of the date of this Agreement or amend in a material manner any of the Material Contracts; (x) enter into or terminate, or agree to enter into or terminate, a lease of real property which is (or would be) a Leased Property, except that Buyer acknowledges and consents to any of the Companies or the Subsidiary entering into any lease the negotiation of which has commenced prior to the date of this Agreement or any renewal of a lease to which any of the Companies or the Subsidiary is a party; provided, however, that any such lease shall contain terms and provisions which shall be consistent with past practice;
Appears in 1 contract
Ordinary Conduct. (i) Except as permitted specifically provided by the terms of this Agreement or as set forth on Schedule 6.1(b), from the date of this Agreement to the Closing, the Company shall, and Seller shall cause the Company and each of the GMACCH Consolidated Subsidiaries to:
(A) conduct the Commercial Capital Business in the ordinary course;
(B) use its commercially reasonable efforts to preserve intact its current business organization;
(C) use its commercially reasonable efforts to (1) keep available the services of its current officers and key employees and (2) maintain in all material respects the relations and goodwill with suppliers, customers, landlords and creditors; and
(D) promptly report to Investor (which may be done by promptly reporting to a Special Representative) concerning material developments in the Commercial Capital Business.
(ii) Except as contemplated by the terms of this Agreement or as set forth on Schedule 5(b6.1(b), from the date hereof to the Closing, Sellers Seller will cause the GMACCH Companies and the Subsidiary to conduct the Business and Kraft Jacoxx xx conduct the UK Business their business in the ordinary course consistent with past practice. Sellers will cause the Companies and the Subsidiary to maintain all of their material properties and assets in substantially the same working condition and repair as of the date hereof, consistent with past practice, except for ordinary wear and tear, casualties, and acts of God. Kraft, through the Closing, will maintain the Tulare Facility and the Anaheim Facility and cause Kraft Jacoxx xx maintain the Bristol Facility in substantially the same working condition and repair as of the date hereof, consistent with past practice except for ordinary wear and tear, casualties and acts of God; provided, however, that proceeds of insurance in respect of any such casualty or act of God shall be utilized to repair or restore the facility or assets affected therebycourse. Except as provided in contemplated by the terms of this Agreement or as set forth on Schedule 5(b6.1(b), from the date hereof until the Closing, none neither the Company nor any of Sellers, the Companies or the Subsidiary GMACCH Consolidated Subsidiaries will do any of the following without the prior written (including via e-mail) consent of Buyer the Investor (written requests for which should not to be directed to Hanex X. Hxxxxxunreasonably withheld or delayed), Xxputy General Counselit being agreed that any consent given by either of the Special Representatives shall constitute the consent of Investor under this Section 6.1(b):
(iA) amend its Certificate the charter, bylaws or similar organizational documents of Incorporation or Bylawsany Material Operating Company;
(iiB) declare or pay any dividend or make any other distributions to its shareholders shareowners whether or not upon or in respect of any shares of its capital stock (however characterized and whether payable in cash or additional shares of stock); provided, however, that Buyer repayment of any Intercompany Indebtedness shall not constitute a distribution for the purposes of this Section 6.1(b); provided, further, that Investor acknowledges that (x) the Companies and the Subsidiary do not maintain cash balances and, at or prior to the time of the Closing, Sellers will withdraw any cash balances of any of the Companies and the Subsidiary, (y) dividends or distributions may continue to be made by any Subsidiary of the Company to the Company or any of its Subsidiaries in the ordinary course of business;
(C) propose or effect a split, combination or reclassification of the Company’s outstanding capital stock or a recapitalization thereof;
(D) dispose of or permit to lapse any rights to the use of any material Intellectual Property;
(E) make any alteration in accounting principles or policies, or any material alteration in the practices, procedures or methods used for financial reporting purposes, except as required by a change in GAAP, or with respect to any Subsidiary, as required by generally accepted accounting principles applicable to such Subsidiary, or as recommended by any U.S. federal or state or foreign regulatory authority;
(F) incur any capital expenditure or capital additions or betterments or series of such capital expenditures, capital additions or betterments in excess of $500,000 in any instance;
(G) fail to maintain its books, accounts and records in the usual, regular and ordinary manner on a basis consistent with past practice;
(H) adopt or amend in any material respect any collective bargaining agreement other than as required by Law;
(I) acquire (by merger, share exchange, consolidation, combination or acquisition of equity interests or assets) any corporation, partnership or other business organization or division or line of business thereof (other than any acquisition of portfolio assets not in excess of $50,000,000 in the aggregate for each such acquisition);
(J) make or revoke any election or change any tax accounting practices, procedures or methods relating to any material amount of Taxes of the Company or any Subsidiary of the Company or settle or compromise any Legal Proceeding or other controversy relating to any material increase or decrease in amount of Taxes of the Company or any Subsidiary of the Company, or enter into any other agreement to do any of the Companies and foregoing, provided, however, that Seller shall disclose all such activities applicable to the Parent Consolidated Group that may have an effect on any GMACCH Company, without the consent of Investor (z) dividends which consent shall not be unreasonably withheld or distributions of cash may continue to be made by any of the Companies to Sellersdelayed);
(iiiK) prepare or file any Tax Return in a manner inconsistent with past practice and custom except as required by a change in applicable law;
(L) redeem or otherwise acquire any shares of its capital stock of any Material Operating Company or issue any such capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of such capital stockstock or any phantom stock or phantom options;
(iv) make any material change in the conduct of the Business, except as specifically contemplated by this Agreement;
(vM) sell, lease, license license, assign or otherwise dispose oftransfer (1) any line of business or all or substantially all of the assets used in any line of business of the Company or any Significant Subsidiary of the Company, in either case that is material, individually or in the aggregate, to the GMACCH Companies, taken as a whole, or agree to sell, lease, license or otherwise dispose of, (2) any interest in any of the assets that are material, individually or in the aggregate, to the Companies and the SubsidiaryGMACCH Companies, taken as a whole, except in the ordinary course of business;
(N) other than changes in benefits pursuant to an existing Plan, make, commit to make or formally announce any changes in the benefits provided to, annual or long-term compensation or severance payable to, or make any advance or loan to (other than business expense advances or draws against commissions in the ordinary course of business), any Company Employee, or any bonus payment or similar arrangement made to or with any such Company Employee, other than pursuant to normal performance reviews, in connection with a promotion or change in responsibilities or in connection with new hires or retentions, in any such case, in the ordinary course of business;
(O) other than as required by Law or in order to comply with policies implemented with respect to all members of the Parent Group, announce, agree to provide or provide any new pension, retirement or other employment benefits, or increase any existing benefits, for sales any Company Employees or establish any new Plan or amend, terminate or materially modify, in a manner that would increase the total annual cost of inventory providing benefits by a material amount relative to the cost of providing benefits in the prior fiscal year as reported on the most recent audited Financial Statements, any existing Plan or otherwise incur any Liability under any Plan different in nature from the Liabilities incurred during similar periods in the prior year;
(P) mortgage, pledge, xxxxx x Xxxx or otherwise encumber any asset of the Company, other than Permitted Exceptions, Permitted Liens or under Ordinary Course Finance Agreements or pursuant to the requirements of Guarantee Obligations entered into in the ordinary course of business;
(Q) incur any Indebtedness for borrowed money other than Indebtedness entered into in the ordinary course of business consistent with past practice;
that have maturity dates of ninety (vi90) permit, allow days or subject any of the assets less or Owned Properties owned by any of the Companies, the Subsidiary can be prepaid without premium or Kraft (with respect to the Tulare Facility and the Anaheim Facility) or the leasehold interests of the Companies and the Subsidiary in the Leased Properties to any mortgage, pledge, security interest, encumbrance or lien or suffer such to be imposed, except for Permitted Liens;
(vii) except in the ordinary course of business consistent with past practice or as required by law or contractual obligations or other agreements existing on the date hereof, increase in any manner the compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its directors or officers;
(viii) assume, incur or guarantee any obligation for borrowed money (other than intercompany indebtedness) having an outstanding principal amount in excess of $500,000 in the aggregate;
(ix) except in the ordinary course of business consistent with past practice or as otherwise provided for in this Agreement, enter into a new agreement that would be included within the definition of Material Contracts if it had been entered into as of the date of this Agreement or amend in a material manner any of the Material Contracts;
(x) enter into or terminate, or agree to enter into or terminate, a lease of real property which is (or would be) a Leased Property, except that Buyer acknowledges and consents to any of the Companies or the Subsidiary entering into any lease the negotiation of which has commenced prior to the date of this Agreement or any renewal of a lease to which any of the Companies or the Subsidiary is a partypenalty; provided, however, that the Company and the GMACCH Consolidated Subsidiaries will not incur (i) aggregate consolidated indebtedness for borrowed money required to be repaid at Closing (excluding Indebtedness to be refinanced from sources other than the Debt Financing) to exceed $10,000,000,000.00 or (ii) Indebtedness that would cause the Company’s aggregate consolidated amount of secured Indebtedness (1) outstanding immediately prior to Closing and (2) not being repaid at Closing (including that which is rolled over after Closing) to exceed $2,000,000,000.00;
(R) modify, amend, alter in any material way or terminate any of the Material Contracts if such lease shall contain modification, amendment, alteration or termination would be materially adverse to the GMACCH Companies, taken as a whole;
(S) cancel any debts or claims or waive any rights that it has with a value to it in excess of $500,000 individually or $2,000,000 in the aggregate, other than in the ordinary course of business;
(i) change in any material respect its lending, investment, underwriting, risk and asset liability management or other operating policies, or,
(ii) other than in to the ordinary course of business or as required by Law, enter into any new line of business or materially modify its mix of businesses;
(U) adopt a voluntary plan of liquidation, dissolution, merger, consolidation, recapitalization or other reorganization;
(V) enter into any material joint venture, partnership or strategic alliance or similar agreement or arrangement outside the ordinary course of business;
(W) settle any Legal Proceeding outside the ordinary course of business which is not covered by insurance where the amount for which it is, or the GMACCH Companies are, liable, exceeds $1,000,000;
(X) enter into any agreement containing (i) a covenant not to compete, (ii) exclusivity provisions binding a GMACCH Company or (iii) any other restriction, in each case that materially limits or impairs the ability of the GMACCH Companies to freely conduct the Commercial Capital Business;
(Y) amend or modify in any manner adverse to a GMACCH Company any Contract set forth on Schedule 5.2(ff), enter into any Contract or transaction with, or make any payment to, or for the benefit of, any member of the Parent Group or any officer or director of any member of the Parent Group and/or their respective family members, other than as required pursuant to the terms and provisions which shall be consistent with past practice;of the Contracts set forth on Schedule 5.2(ff); provided, that the Company may, subject to Section 6.1(b)(ii)(Q), borrow funds on an overnight basis from any member of the Parent Group at the same interest rate spreads as currently charged to the Company for similar borrowings; or
(Z) make any formal announcement of an intention to, or create a binding commitment or agreement to, do any of the foregoing.
Appears in 1 contract
Ordinary Conduct. Except as permitted contemplated by the terms of this Agreement or as set forth in Schedule 5(b), Section 2(b) or otherwise expressly provided by this Agreement, from the date hereof to the Closing, Sellers will Westinghouse shall cause the Companies and business of the Subsidiary Sold Subsidiaries to conduct the Business and Kraft Jacoxx xx conduct the UK Business be conducted in the ordinary course consistent with past practice. Sellers will cause the Companies and the Subsidiary to maintain all of their material properties and assets in substantially the same working condition manner as presently conducted and repair as of the date hereof, shall make all reasonable efforts consistent with past practicepractices to preserve their relationships with dealers, suppliers and others with whom any Sold Subsidiary deals. In addition, except for ordinary wear and tear, casualties, and acts of God. Kraft, through the Closing, will maintain the Tulare Facility and the Anaheim Facility and cause Kraft Jacoxx xx maintain the Bristol Facility in substantially the same working condition and repair as of the date hereof, consistent with past practice except for ordinary wear and tear, casualties and acts of God; provided, however, that proceeds of insurance in respect of any such casualty or act of God shall be utilized to repair or restore the facility or assets affected thereby. Except as provided in this Agreement or contemplated by Schedule 5(b), from the date hereof until the ClosingSection 2(b) or otherwise expressly provided by this Agreement, none of Sellers, the Companies Westinghouse shall not permit any Sold Subsidiary to do (or the permit any Selling Subsidiary will do to permit any Sold Subsidiary to do) any of the following without the prior written consent of Buyer (written requests for which should be directed to Hanex X. Hxxxxx, Xxputy General Counsel):Buyer:
(i) amend its Certificate certificate of Incorporation incorporation or Bylawsby-laws (or comparable organizational documents) in any material respect;
(ii) declare or pay any dividend or make any other distributions distribution to its shareholders stockholders whether or not upon or in respect of any shares of its capital stock; providedpro vided, however, that (A) Buyer acknowledges that (x) the Companies and the Subsidiary Sold Subsidiaries do not maintain cash balances and, at or prior to the time of the Closing, Sellers Westinghouse will withdraw any cash balances of any of the Companies and the SubsidiarySold Subsidiaries, (yB) dividends or and distributions may continue to be made by the Subsidiary Other Sold Subsidiaries to any of the Companies Direct Sold Subsidiaries and (zC) cash dividends or and distributions of cash may continue to be made by any Direct Sold Subsidiary to any Seller, provided that such dividends and distributions shall not be funded by the proceeds of borrowings by the Companies to SellersSold Subsidiaries;
(iii) redeem adopt or otherwise acquire amend in any shares material respect any Benefit Plan or collective bargaining agreement, except as required by law or pursuant to the terms of any existing collective bargaining agreement or other existing contract, agreement or instrument and except for changes made by Westinghouse to any Benefit Plan which affects substantially all the employees of Westinghouse and its capital stock or issue any capital stock or any option, warrant or right relating thereto or any securities convertible into or exchangeable for any shares of capital stocksubsidiaries;
(iv) grant to any executive officer of any Sold Subsidiary any increase in compensation or benefits or loans, except in the ordinary course of business consistent with past practice or as may be required under existing contracts or agreements and except for any increases or loans the liability for which a Seller shall be solely obligated;
(v) incur or assume any liabilities, obligations or indebtedness for borrowed money or guarantee any such liabilities, obligations or indebtedness, or cancel any material indebtedness or waive any claim or rights of material value, in each case other than in the ordinary course of business consistent with past practice;
(vi) except for dividends and distributions permit xxx under clause (ii) above and cash management and other intercompany transactions in the ordinary course of business, pay, loan or advance any material amount to, or sell, transfer or lease any of its material assets to, or enter into any material contract, agreement or arrangement with, Westinghouse or any of its subsidiaries (other than any Sold Subsidiaries);
(vii) make any material change in the conduct any method of the Business, except as specifically contemplated accounting or accounting practice or policy other than those required by this Agreementgenerally accepted accounting princi ples;
(vviii) sellacquire by merging or consolidating with, lease, license or otherwise dispose by purchasing a material portion of the assets of, or agree to sell, lease, license or otherwise dispose ofby any other manner, any interest in business or any of the corpora tion, partnership, joint stock company, limited liability company, association or other business organization or division thereof;
(ix) acquire any assets that (other than inventory) which are material, individually or in the aggregate, to the Companies and Sold Subsidiaries, taken as a whole, except in the Subsidiaryordinary course of business;
(x) sell, lease, mortgage, pledge or otherwise dispose of, or grant preferential rights to, any of its assets which are material, individually or in the aggregate, to the Sold Subsidiaries, taken as a whole, except for sales the sale of inventory in the ordinary course of business consistent with past practice;
(vixi) permitenter into any lease of real property for an annual rent in excess of $150,000, allow or subject except any renewals of the assets or Owned Properties owned by any of the Companies, the Subsidiary or Kraft (with respect to the Tulare Facility and the Anaheim Facility) or the leasehold interests of the Companies and the Subsidiary existing leases in the Leased Properties to any mortgage, pledge, security interest, encumbrance or lien or suffer such to be imposed, except for Permitted Liensordinary course of business;
(viixii) enter into any joint venture, partnership or other similar arrangement;
(xiii) sell, assign, or transfer any material Intellectual Property except in the ordinary course of business consistent with past practice or as required by law or contractual obligations or other agreements existing on the date hereof, increase in any manner the compensation of, or enter into any new bonus or incentive agreement or arrangement with, any of its directors or officersbusiness;
(viiixiv) assume, incur or guarantee make any obligation for borrowed money (other than intercompany indebtedness) having an outstanding principal amount capital expenditures in excess of $500,000 1,000,000 more than the capital expenditures contemplated in the aggregatecapital budget previously made available to Buyer;
(ixxv) except amend any Contract in any material respect other than in the ordinary course of business consistent with past practice business; or
(xvi) agree, whether in writing or as otherwise provided for in this Agreementotherwise, enter into a new agreement that would be included within the definition of Material Contracts if it had been entered into as of the date of this Agreement or amend in a material manner to do any of the Material Contracts;
(x) enter into or terminate, or agree to enter into or terminate, a lease of real property which is (or would be) a Leased Property, except that Buyer acknowledges and consents to any of the Companies or the Subsidiary entering into any lease the negotiation of which has commenced prior to the date of this Agreement or any renewal of a lease to which any of the Companies or the Subsidiary is a party; provided, however, that any such lease shall contain terms and provisions which shall be consistent with past practice;foregoing.
Appears in 1 contract
