Common use of Pre-Closing Covenants of Buyer Clause in Contracts

Pre-Closing Covenants of Buyer. (a) During the period from the date hereof to the Closing, Buyer covenants and agrees with Seller that Buyer and its Subsidiaries (i) shall each conduct its operations according to its ordinary course of business consistent with past practice and in compliance with Applicable Laws; (ii) shall each use its reasonable best efforts to preserve, maintain and protect its properties; and (iii) shall each use its reasonable best efforts to preserve intact its business organization, to keep available the services of its officers and employees and to maintain existing relationships with suppliers, operators, customers and others having business relationships with it. (b) During the period from the date hereof to the Closing, neither Buyer nor any Subsidiary shall without the prior written consent of Seller: (i) amend its Organic Documents or other governing instruments; (ii) (A) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents, exclusive of any shares issued pursuant to options, warrants, commitments, subscriptions, rights to purchase or otherwise existing on the date hereof); or (B) amend in any respect any of the terms of any such securities outstanding as of the date hereof; (iii) (A) split, combine, or reclassify any shares of its capital stock; or (B) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation or dissolution of Buyer or any Subsidiary; (iv) except as provided in subsection (c) below, make any loans, advances, or capital contributions to, or investments in, any other Person (other than customary loans or advances to employees in amounts not material to the maker of such loan or advance); (A) enter into, adopt, or (except as may be required by law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee; (B) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to Buyer, increase in any manner the compensation or fringe benefits of any director, officer or employee; or (C) pay to any director, officer or employee any benefit not required by any employee benefit agreement, trust, plan, fund or other arrangement as in effect on the date hereof; (vi) make any capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $250,000; (vii) amend any Tax Return or make any Tax election or settle or compromise any federal, state, local, or foreign Tax liability material to Buyer and the Subsidiaries considered as a whole; (viii) pay, discharge, or satisfy any claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Financial Statements or incurred since the date of the Latest Balance Sheet in the ordinary course of business consistent with past practice; provided, however, that in no event shall Buyer or any Subsidiary repay any long-term indebtedness except to the extent required by the terms thereof; (ix) take any action which would or might make any of the representations or warranties of Buyer contained in this Agreement untrue or inaccurate as of any time from the date of this Agreement to the Closing or would or might result in any of the conditions set forth in this Agreement not being satisfied; or (x) authorize or propose, or agree in writing or otherwise to take, any of the actions described in this Section. (c) Notwithstanding anything in this Section 6.2 to the contrary, it is expressly agreed that the execution and delivery by Buyer of (i) the Other Acquisition Agreements, (ii) the Preferred Stock Purchase Agreement, (iii) the Senior Credit Facility and (iv) the Subordinated Debt Agreement, and the consummation of the respective transactions contemplated thereunder will not be deemed to be a breach by Buyer of any covenant and agreement contained in this Section 6.2 or elsewhere herein. (d) Between the date hereof and the Closing, Buyer (i) shall give Seller and its authorized representatives reasonable access, during regular business hours, to all employees, all plants, offices, warehouses, and other facilities, and all books and records, including work papers and other materials prepared by Buyer's independent public accountants, of Buyer and the Subsidiaries, (ii) shall permit Seller and its authorized representatives to make such inspections as they may reasonably require and (iii) shall cause Buyer's officers and those of the Subsidiaries to furnish Seller and its authorized representatives with such financial and operating data and other information with respect to Buyer and the Subsidiaries as Seller may from time to time reasonably request; provided, however, that Buyer shall have the right to have a representative present at all times of any such inspections, interviews and examinations conducted at or on the offices or other facilities or properties of Buyer or its affiliates or representatives.

Pre-Closing Covenants of Buyer. (a) During the period from the date hereof to the Closing, Buyer covenants and agrees with Seller that Buyer and its Subsidiaries (i) shall each conduct its operations according to its ordinary course of business consistent with past practice and in compliance with Applicable Laws; (ii) shall each use its reasonable best efforts to preserve, maintain and protect its properties; and (iii) shall each use its reasonable best efforts to preserve intact its business organization, to keep available the services of its officers and employees and to maintain existing relationships with suppliers, operators, customers and others having business relationships with it. (b) During the period from the date hereof to the Closing, neither Buyer nor any Subsidiary shall without the prior written consent of Seller: (i) amend its Organic Documents or other governing instruments; (ii) (A) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents, exclusive of any shares issued pursuant to options, warrants, commitments, subscriptions, rights to purchase or otherwise existing on the date hereof); or (B) amend in any respect any of the terms of any such securities outstanding as of the date hereof; (iii) (A) split, combine, or reclassify any shares of its capital stock; or (B) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation or dissolution of Buyer or any Subsidiary; (iv) except as provided in subsection (c) below, make any loans, advances, or capital contributions to, or investments in, any other Person (other than customary loans or advances to employees in amounts not material to the maker of such loan or advance); (v) (A) enter into, adopt, or (except as may be required by law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee; (B) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to Buyer, increase in any manner the compensation or fringe benefits of any director, officer or employee; or (C) pay to any director, officer or employee any benefit not required by any employee benefit agreement, trust, plan, fund or other arrangement as in effect on the date hereof; (vi) make any capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $250,000; (vii) amend any Tax Return or make any Tax election or settle or compromise any federal, state, local, or foreign Tax liability material to Buyer and the Subsidiaries considered as a whole; (viii) pay, discharge, or satisfy any claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Financial Statements or incurred since the date of the Latest Balance Sheet in the ordinary course of business consistent with past practice; provided, however, that in no event shall Buyer or any Subsidiary repay any long-term indebtedness except to the extent required by the terms thereof; (ix) take any action which would or might make any of the representations or warranties of Buyer contained in this Agreement untrue or inaccurate as of any time from the date of this Agreement to the Closing or would or might result in any of the conditions set forth in this Agreement not being satisfied; or (x) authorize or propose, or agree in writing or otherwise to take, any of the actions described in this Section. (c) Notwithstanding anything in this Section 6.2 to the contrary, it is expressly agreed that the execution and delivery by Buyer of (i) the Other Acquisition Agreements, (ii) the Preferred Stock Purchase Agreement, (iii) the Senior Credit Facility and (iv) the Subordinated Debt Agreement, and the consummation of the respective transactions contemplated thereunder will not be deemed to be a breach by Buyer of any covenant and agreement contained in this Section 6.2 or elsewhere herein. (d) Between the date hereof and the Closing, Buyer (i) shall give Seller and its authorized representatives reasonable access, during regular business hours, to all employees, all plants, offices, warehouses, and other facilities, and all books and records, including work papers and other materials prepared by Buyer's independent public accountants, of Buyer and the Subsidiaries, (ii) shall permit Seller and its authorized representatives to make such inspections as they may reasonably require and (iii) shall cause Buyer's officers and those of the Subsidiaries to furnish Seller and its authorized representatives with such financial and operating data and other information with respect to Buyer and the Subsidiaries as Seller may from time to time reasonably request; provided, however, that Buyer shall have the right to have a representative present at all times of any such inspections, interviews and examinations conducted at or on the offices or other facilities or properties of Buyer or its affiliates or representatives.

Pre-Closing Covenants of Buyer. (a) During the period from the date hereof to the Closing, Buyer covenants and agrees with Seller that Buyer and its Subsidiaries (i) shall each conduct its operations according to its ordinary course of business consistent with past practice and in compliance with Applicable Laws; (ii) shall each use its reasonable best efforts to preserve, maintain and protect its properties; and (iii) shall each use its reasonable best efforts to preserve intact its business organization, to keep available the services of its officers and employees and to maintain existing relationships with suppliers, operators, customers and others having business relationships with it. (b) During the period from the date hereof to the Closing, neither Buyer nor any Subsidiary shall without the prior written consent of Seller: (i) amend its Organic Documents or other governing instruments; (ii) (A) issue, sell, or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of its capital stock of any class or any other securities or equity equivalents, exclusive of any shares issued pursuant to options, warrants, commitments, subscriptions, rights to purchase or otherwise existing on the date hereof); or (B) amend in any respect any of the terms of any such securities outstanding as of the date hereof; (iii) (A) split, combine, or reclassify any shares of its capital stock; or (B) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing a liquidation or dissolution of Buyer or any Subsidiary; (iv) except as provided in subsection (c) below, make any loans, advances, or capital contributions to, or investments in, any other Person (other than customary loans or advances to employees in amounts not material to the maker of such loan or advance); (A) enter into, adopt, or (except as may be required by law) amend or terminate any bonus, profit sharing, compensation, severance, termination, stock option, stock appreciation right, restricted stock, performance unit, stock equivalent, stock purchase, pension, retirement, deferred compensation, employment, severance or other employee benefit agreement, trust, plan, fund or other arrangement for the benefit or welfare of any director, officer or employee; (B) except for normal increases in the ordinary course of business consistent with past practice that, in the aggregate, do not result in a material increase in benefits or compensation expense to Buyer, increase in any manner the compensation or fringe benefits of any director, officer or employee; or (C) pay to any director, officer or employee any benefit not required by any employee benefit agreement, trust, plan, fund or other arrangement as in effect on the date hereof; (vi) make any capital expenditure or expenditures which, individually, is in excess of $100,000 or, in the aggregate, are in excess of $250,000; (vii) amend any Tax Return or make any Tax election or settle or compromise any federal, state, local, or foreign Tax liability material to Buyer and the Subsidiaries considered as a whole; (viii) pay, discharge, or satisfy any claims, liabilities, or obligations (whether accrued, absolute, contingent, unliquidated, or otherwise, and whether asserted or unasserted), other than the payment, discharge, or satisfaction in the ordinary course of business consistent with past practice, or in accordance with their terms, of liabilities reflected or reserved against in the Financial Statements or incurred since the date of the Latest Balance Sheet in the ordinary course of business consistent with past practice; provided, however, that in no event shall Buyer or any Subsidiary repay any long-term indebtedness except to the extent required by the terms thereof; (ix) take any action which would or might make any of the representations or warranties of Buyer contained in this Agreement untrue or inaccurate as of any time from the date of this Agreement to the Closing or would or might result in any of the conditions set forth in this Agreement not being satisfied; or (x) authorize or propose, or agree in writing or otherwise to take, any of the actions described in this Section. (c) Notwithstanding anything in this Section 6.2 to the contrary, it is expressly agreed that the execution and delivery by Buyer of (i) the Other Acquisition Agreements, (ii) the Preferred Stock Purchase Agreement, (iii) the Senior Credit Facility and (iv) the Subordinated Debt Agreement, and the consummation of the respective transactions contemplated thereunder will not be deemed to be a breach by Buyer of any covenant and agreement contained in this Section 6.2 or elsewhere herein. (d) Between the date hereof and the Closing, Buyer (i) shall give Seller and its authorized representatives reasonable access, during regular business hours, to all employees, all plants, offices, warehouses, and other facilities, and all books and records, including work papers and other materials prepared by Buyer's independent public accountants, of Buyer and the Subsidiaries, (ii) shall permit Seller and its authorized representatives to make such inspections as they may reasonably require and (iii) shall cause Buyer's officers and those of the Subsidiaries to furnish Seller and its authorized representatives with such financial and operating data and other information with respect to Buyer and the Subsidiaries as Seller may from time to time reasonably request; provided, however, that Buyer shall have the right to have a representative present at all times of any such inspections, interviews and examinations conducted at or on the offices or other facilities or properties of Buyer or its affiliates or representatives.