Common use of Pre-Closing Obligations Clause in Contracts

Pre-Closing Obligations. (a) From the date of this Agreement until the Closing Date, except as otherwise expressly contemplated by this Agreement, required by Applicable Law, Permit, Contract in existence as of the date of this Agreement, or any Governmental Authority, as set forth in Section 5.01 of the Seller Disclosure Schedule or with the written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall, and shall cause the Company Group to, use Commercially Reasonable Efforts to conduct the Business in the ordinary course of business in all material respects, including use Commercially Reasonable Efforts to (w) keep available the services of all Company Employees, (x) maintain and operate its assets and properties in a good and workmanlike manner (and consistent with good industry practice and past practices), (y) maintain all Company Intellectual Property Rights to be in full force and effect, and (z) keep all Material Contracts in full force and effect (and, where such Contracts are due to expire prior to Closing, use Commercially Reasonable Efforts to secure a renewal or extension of such Contracts on terms substantially similar to their existing terms) and comply with all of the material terms, covenants and obligations contained in all Material Contracts. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except as otherwise contemplated by this Agreement, required by Applicable Law, Permit, Contract in existence as of the date of this Agreement, or any Governmental Authority, as set forth in Section 5.01 of the Seller Disclosure Schedule or with the written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall not permit any Company Group member to (and, with respect to clause (vii) below, Seller shall not and shall not permit any of its Subsidiaries to): (i) amend (whether by merger, consolidation or otherwise) in any material respect, the Organizational Documents of any Company Group member; (ii) (A) split, combine or reclassify the Interests or (B) declare, set aside or pay any dividend or other distribution, other than (x) cash dividends or other cash distributions by any Company Group member to Seller, its Subsidiaries or any other Company Group member, or (y) as may facilitate the settlement or elimination of intercompany accounts between a Company Group member, on the one hand, and Seller, another Company Group member and any of their respective Affiliates, on the other; (iii) to the extent not already included in the Company Group’s applicable annual budget that has been made available to Buyer prior to the date of this Agreement, make capital expenditures in excess of $1,000,000 in the aggregate; (iv) issue additional equity or debt securities of any Company Group member or sell the Interests or the equity securities of any other Company Group member; (v) acquire or dispose of (whether by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assets, other than (A) pursuant to Contracts in existence on the date of this Agreement or (B) in the ordinary course of business; (vi) make any material loans, advances or capital contributions to, or material investments in, any other Person, other than (A) among Company Group members or (B) in Class A, Series I Preferred Stock of USS Portfolio in the ordinary course of the business; (vii) (A) adopt, terminate, or materially amend any Employee Benefit Plan (or any arrangement that would be an Employee Benefit Plan if in effect on the date hereof), other than the negotiation and renewal of collective bargaining agreements in accordance with Section 5.01(a)(xiv), which on their terms have or will expire prior to the Closing Date; (B) materially modify the compensation of any Company Employee; (C) transfer or modify the employment or services of any employee such that he or she ceases, or commences, providing services primarily related to the Company Group; or (D) terminate the employment of, or hire, any Covered Person; (viii) to the extent such actions could reasonably be expected to materially and adversely affect any Company Group member following the Closing Date, (A) prepare or file any material Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods, (B) file any amended Tax Return, (C) settle or compromise any claim related to Taxes, (D) enter into any closing agreement relating to Taxes, (E) otherwise settle any dispute relating to Taxes, (F) surrender any right to claim a Tax refund, offset or other reduction in Tax liability, or (G) request any ruling or similar guidance with respect to Taxes, in each case, excluding for the avoidance of doubt, any such action that is solely with respect to any Seller Group or Seller Group Tax Return; (ix) make any change to its methods of financial accounting, except as required by changes in GAAP or Applicable Law; (x) adopt a plan or agreement of complete or partial liquidation or dissolution; (xi) enter into any Contract that would be required to be listed in Section 3.11(a) of the Seller Disclosure Schedule if entered into prior to the date of this Agreement or modify, amend or terminate any Material Contract, other than any renewal of a Material Contract on terms and conditions that are substantially the same or better (from the Company Group’s perspective) than the terms and conditions of the pre-existing Material Contract; (xii) abandon or discontinue rail service over any track or facilities operated by any Company Group member; (xiii) grant to any Person any easement, license, trackage rights, haulage rights or other right of use or access to any track or facilities operated by any Company Group member; (xiv) enter into, amend or otherwise modify a collective bargaining agreement, other than the negotiation and renewal of collective bargaining agreements which, on their terms have or will expire prior to the Closing Date; provided that, prior to the entry into any renewal of a collective bargaining agreement that has or will expire prior to the Closing Date, Buyer shall be afforded a reasonable opportunity to meet with Representatives of Seller involved in the relevant negotiations to discuss such negotiations and Seller shall cause such Representatives to consider any related input Buyer may have in good faith; (xv) enter into any neutrality agreement or grant voluntary recognition to any labor union or labor organization as representative of any Company Employees; (xvi) incur any third party Indebtedness or grant any Liens (other than a Permitted Lien); (xvii) pay any payable owing to any Affiliate or forgive any Indebtedness due or owing from any Affiliate (other than any other Company Group member) other than (A) as contemplated by Section 5.09 and (B) in the ordinary course of business; (A) accelerate receivables, (B) delay payables, or (C) change in any material respect its practices in connection with the payment of payables or the collection of receivables; or (xix) agree or commit to do any of the foregoing. (b) Notwithstanding anything in Section 5.01(a) to the contrary, Seller shall be permitted to take, and shall be permitted to cause the Company Group members to take, any COVID Actions; provided, however, that, prior to undertaking any COVID Action after the date hereof or materially expanding or modifying any previously taken COVID Action, Seller shall consult with Buyer and consider in good faith Buyer’s suggestions or other recommendations with respect to such COVID Action.

Pre-Closing Obligations. (a) From 5.1 The Transferor undertakes that during the period from the execution date of this Agreement until the Closing Date, except as unless otherwise expressly contemplated by required in this Agreement, required by Applicable Law, Permit, Contract in existence as of the date of this Agreement, or any Governmental Authority, as set forth in Section 5.01 of the Seller Disclosure Schedule or with the written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall, and it shall cause the Company Group toto carry out its normal business activities in the same manner as previously carried out and such business activities shall be in compliance with the PRC Laws. Without prejudice to the generality of the foregoing, use Commercially Reasonable Efforts the Company shall, and the Transferor shall: 5.1.1 ensure that the Company conducts its business only in the ordinary course and shall not make or agree to conduct make any payment, nor shall the Business Company create or agree to create any mortgage, lien, pledge or encumbrance of any nature, except for routine payments in the ordinary course of business or with the prior written consent of the Transferees; 5.1.2 use their best efforts to preserve the business intact of the Company, maintain the Company’s assets in all material respects, including use Commercially Reasonable Efforts to (w) keep available the services of all Company Employees, (x) maintain good working conditions and operate its assets and properties in a good and workmanlike manner (and consistent with good industry practice and past practices), (y) maintain all Company Intellectual Property Rights to be in full force and effectrepair, and (z) keep all Material Contracts in full force maintain the relationships with its customers, suppliers and effect (and, where such Contracts are due other persons having business dealings with it; 5.1.3 endeavor to expire ensure that the Company’s current officers and key employees will continue to provide services to the Company; 5.1.4 at the reasonable request and prior to Closing, use Commercially Reasonable Efforts to secure a renewal or extension of such Contracts on terms substantially similar to their existing terms) and comply with all notice of the material termsTransferees, covenants make available all books, records and obligations contained in all Material Contracts. Without limiting the generality accounts of the foregoingCompany to the Transferees and/or any person authorized by the Transferees. The audit shall only be conducted during the normal business hours and the Transferees and/or its authorized person shall not copy or take away such books, from records and accounts; and 5.1.5 unless upon prior written consent of the date hereof until the Closing Date, except as Transferees or unless otherwise contemplated by specifically permitted in this Agreement, required by Applicable Law, Permit, Contract in existence as of comply with the date of this Agreement, or any Governmental Authority, as items set forth in Section 5.01 Exhibit 2. 5.2 From the execution date hereof, the Transferor shall immediately notify the Transferees in writing of material information, notices and events relating to the Company, the employees of the Seller Disclosure Schedule Company or with the written consent of Buyer (which consent shall not be unreasonably withheldassets once they become known to the Transferor; such material information, conditioned or delayed), Seller shall not permit any Company Group member to (and, with respect to clause (vii) below, Seller shall not notices and shall not permit any of its Subsidiaries to): events mean (i) amend (whether the information, notices and events determined by mergerthe Transferor to be material, consolidation or otherwise) in any material respect, the Organizational Documents of any Company Group member; (ii) such information, notices and events that may materially and adversely affect the Company. 5.3 Unless otherwise specifically provided for herein, the Transferor and the Transferees shall each bear their own transfer taxes/fees (A) splitincluding the income tax, combine or reclassify the Interests or (B) declarebusiness tax, set aside or pay any dividend or other distributionvalue-added tax, consumption tax, stamp duty, other than (xsimilar taxes and governmental charges) cash dividends or other cash distributions by any Company Group member to Seller, its Subsidiaries or any other Company Group member, or (y) as may facilitate the settlement or elimination of intercompany accounts between a Company Group member, on the one hand, and Seller, another Company Group member and any of their respective Affiliates, on the other; (iii) to the extent not already included in the Company Group’s applicable annual budget that has been made available to Buyer prior to the date of this Agreement, make capital expenditures in excess of $1,000,000 in the aggregate; (iv) issue additional equity or debt securities of any Company Group member or sell the Interests or the equity securities of any other Company Group member; (v) acquire or dispose of (whether by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assets, other than (A) pursuant to Contracts in existence on the date arising out of this Agreement or (B) in the ordinary course of business; (vi) make any material loans, advances or capital contributions to, or material investments in, any other Person, other than (A) among Company Group members or (B) in Class A, Series I Preferred Stock of USS Portfolio in the ordinary course of the business; (vii) (A) adopt, terminate, or materially amend any Employee Benefit Plan (or any arrangement that would be an Employee Benefit Plan if in effect on the date hereof), other than the negotiation and renewal of collective bargaining agreements Transfer in accordance with Section 5.01(a)(xiv), which on their terms have or will expire prior to the Closing Date; (B) materially modify the compensation of any Company Employee; (C) transfer or modify the employment or services of any employee such that he or she ceases, or commences, providing services primarily related to the Company Group; or (D) terminate the employment of, or hire, any Covered Person; (viii) applicable laws. The Parties shall cooperate with each other as far as reasonably required and to the extent consistent with laws to reduce such actions could reasonably be expected to materially transfer taxes/fees. 5.4 References in this Section 5 and adversely affect any Company Group member following the Closing Date, (A) prepare or file any material Tax Return inconsistent with past practice or, on any such Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods, (B) file any amended Tax Return, (C) settle or compromise any claim related to Taxes, (D) enter into any closing agreement relating to Taxes, (E) otherwise settle any dispute relating to Taxes, (F) surrender any right to claim a Tax refund, offset or other reduction in Tax liability, or (G) request any ruling or similar guidance with respect to Taxes, in each case, excluding for the avoidance of doubt, any such action that is solely with respect to any Seller Group or Seller Group Tax Return; (ix) make any change to its methods of financial accounting, except as required by changes in GAAP or Applicable Law; (x) adopt a plan or agreement of complete or partial liquidation or dissolution; (xi) enter into any Contract that would be required to be listed in Section 3.11(a) of the Seller Disclosure Schedule if entered into prior to the date of this Agreement or modify, amend or terminate any Material Contract, other than any renewal of a Material Contract on terms and conditions that are substantially the same or better (from the Company Group’s perspective) than the terms and conditions of the pre-existing Material Contract; (xii) abandon or discontinue rail service over any track or facilities operated by any Company Group member; (xiii) grant to any Person any easementclosing obligations set forth in Exhibit 2 involving the Company, license, trackage rights, haulage rights or other right of use or access to any track or facilities operated by any Company Group member; (xiv) enter into, amend or otherwise modify a collective bargaining agreement, other than the negotiation and renewal of collective bargaining agreements which, on their terms have or will expire prior to the Closing Date; provided that, prior to the entry into any renewal of a collective bargaining agreement that has or will expire prior to the Closing Date, Buyer term “Company” shall be afforded a reasonable opportunity to meet with Representatives of Seller involved in the relevant negotiations to discuss such negotiations and Seller shall cause such Representatives to consider any related input Buyer may have in good faith; (xv) enter into any neutrality agreement or grant voluntary recognition to any labor union or labor organization as representative of any Company Employees; (xvi) incur any third party Indebtedness or grant any Liens (other than a Permitted Lien); (xvii) pay any payable owing to any Affiliate or forgive any Indebtedness due or owing from any Affiliate (other than any other Company Group member) other than (A) as contemplated by Section 5.09 and (B) in the ordinary course of business; (A) accelerate receivables, (B) delay payables, or (C) change in any material respect its practices in connection with the payment of payables or the collection of receivables; or (xix) agree or commit to do any of the foregoing. (b) Notwithstanding anything in Section 5.01(a) to the contrary, Seller shall be permitted to take, and shall be permitted to cause include the Company Group members to take, and any COVID Actions; provided, however, that, prior to undertaking any COVID Action after entity controlled by the date hereof or materially expanding or modifying any previously taken COVID Action, Seller shall consult with Buyer and consider in good faith Buyer’s suggestions or other recommendations with respect to such COVID ActionCompany.

Pre-Closing Obligations. (a) 3. From the date of this Agreement until the Closing Date, except as otherwise expressly contemplated by this Agreement or the Contribution Agreement, required by Applicable Law, Permit, Contract in existence as of the date of this Agreement, Permit or any Governmental Authority, as set forth in Section 5.01 of the Seller Sellers Disclosure Schedule or with the written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller the Sellers shall, and shall cause the Company Group Companies to, use Commercially Reasonable Efforts their respective reasonable best efforts to (A) conduct the Business in the ordinary course of business consistent with past practice and (B) preserve intact, in all material respects, including use Commercially Reasonable Efforts to (w) keep available the services of all Company EmployeesCompanies’ business organization, (x) maintain material assets, key employees, relationships with customers, suppliers and operate its assets and properties in a good and workmanlike manner (and consistent with good industry practice and past practices), (y) maintain all Company Intellectual Property Rights to be in full force and effect, and (z) keep all Material Contracts in full force and effect (and, where such Contracts are due to expire prior to Closing, use Commercially Reasonable Efforts to secure a renewal or extension of such Contracts on terms substantially similar to their existing terms) and comply with all of the material terms, covenants and obligations contained in all Material Contractsdistributors. Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except as otherwise contemplated by this Agreement or the Contribution Agreement, required by Applicable Law, Permit, Contract in existence as of the date of this Agreement, Permits or any Governmental Authority, as set forth in Section 5.01 of the Seller Sellers Disclosure Schedule or with the written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller the Sellers shall not permit any Company Group member to (and, with respect to clause (vii) below, Seller shall not and shall not permit any of its Subsidiaries the Companies or the Business to):: (i) amend (whether by merger, consolidation or otherwise) in any material respectCompany’s certificate of incorporation, the Organizational Documents of any Company Group memberbylaws, limited liability company agreement or equivalent organizational documents; (ii) (A%5) split, combine or reclassify any Company Securities or otherwise change the Interests capital structure of any Company or (B%5) recapitalize any Company or (C) declare, set aside aside, or pay any dividend or other distribution, other than (x) cash dividends or other cash distributions by any Company Group member the Companies to Seller, its Subsidiaries or any other Company Group membera Seller that are fully paid prior to the Closing Date, or (y) as may facilitate the settlement or elimination of intercompany accounts between a Company Group memberany of the Companies, on the one hand, and Seller, another Company Group member the Sellers and any of their respective Affiliates, on the other, in each case, in compliance with all Applicable Laws; (iii) to the extent not already included in the Company Group’s applicable annual budget that has been made available to Buyer prior to the date of this Agreement, make capital expenditures in excess of the aggregate amount set forth in the capital expenditures budget attached as Annex D hereto by more than $1,000,000 2,000,000 in the aggregate; (iv) issue additional equity authorize for issuance, issue, sell, pledge, deliver, grant or debt securities otherwise dispose of, any Company Securities, or amend any of the terms of any such Company Group member or sell the Interests or the equity securities of any other Company Group memberSecurities; (v) acquire or dispose of (whether by transfer, merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any material assetsassets properties or businesses, other than (A) pursuant to Contracts in existence on the date purchase of this Agreement or (B) raw materials, supplies and inventory in the ordinary course of business; (vi) dispose of (whether by transfer, merger, consolidation, disposition of stock or assets or otherwise), directly or indirectly, any material assets, properties or businesses other than (A) the sale of inventory or Products, in the ordinary course of business or (B) the sale or disposal of obsolete or excess equipment, in the ordinary course of business; (vii) (A) sell, transfer, assign or license to any Person other than a Company any material Company Intellectual Property Rights (other than non-exclusive licenses granted in the ordinary course of business) or (B) abandon, cancel, let lapse, or otherwise dispose of any material Company Intellectual Property Rights (other than such Company Intellectual Property Rights that, in the Sellers’ reasonable commercial judgment, in the ordinary course of business, are neither useful to the Business nor commercially justifiable for the Business to maintain); (viii) (A) incur, assume or guarantee any material Indebtedness, other than Indebtedness that will be fully repaid or extinguished prior to the Closing Date or (B) make any material loans, advances or capital contributions to, or material investments in, any other Person, other than (A1) among Company Group members or (B) in Class A, Series I Preferred Stock extension of USS Portfolio credit to customers in the ordinary course of the businessbusiness or (2) subject to Section 5.09, loans, advances or capital contributions to, or investments in, any Company; (viiix) create or otherwise incur any Lien on any material properties or assets (Aother than Permitted Liens other than in the ordinary course of business); (x) adopt, terminate, settle or materially amend compromise any litigation for an amount in excess of $250,000; (xi) other than as required by the terms of any Employee Benefit Plan (or any arrangement that would be an Employee Benefit Plan if as in effect on the date hereofof this Agreement or Applicable Law, (%5) grant or increase any severance or termination entitlement to any Business Employee (or materially amend any such existing severance or termination pay arrangement), (%5) enter into any employment, deferred compensation or other than the negotiation and renewal of similar agreement with any Business Employee (or materially amend any such existing agreement), (%5) establish, adopt or materially amend any collective bargaining agreements in accordance with Section 5.01(a)(xiv)agreement covering any Business Employee or (%5) increase compensation, which on their terms have bonus or will expire prior other benefits payable to the Closing Date; (B) materially modify the compensation of any Company Business Employee; (C%5) transfer establish, adopt, enter into, amend, terminate, exercise any discretion under or modify take any action to accelerate rights under any Company Benefit Plan; (%5) establish, adopt, enter into, amend terminate, exercise any discretion under or take any action to accelerate rights under any Parent Benefit Plan to the extent that such amendments disproportionately impact the Business Employees or would materially increase the obligations of Buyer and the Companies pursuant to Section 6.02 or Section 6.03 hereof; or (%5) terminate (other than for cause) the employment or services of any employee such that he Business Employee or she ceasestransfer the employment of any Business Employee out of the Companies, or commenceshire or replace any Business Employee, providing services primarily related to except in each case in the Company Group; or (D) terminate the employment of, or hire, any Covered Person; (viii) ordinary course of business and to the extent such actions could reasonably do not, together with any other such actions, materially increase the liabilities or obligations of Buyer or any of the Companies; (xii) amend, terminate, renew or cancel any Contract listed in Section 3.11(a) of the Sellers Disclosure Schedule, or enter into any new Contract that would have been required to be expected to materially and adversely affect any Company Group member following listed in Section 3.11(a) of the Closing DateSellers Disclosure Schedule had it been in effect as of the date hereof, in each case other than in the ordinary course of business; (Axiii) prepare (%5) make or file change any material Tax Return inconsistent with past practice or, on any such election or method of accounting for income Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar U.K. corporation Tax Returns in prior periods, purposes (B) file any amended material amendment to any Tax Return, (C) settle surrender any material right or compromise any claim related to a refund of Taxes, (D) settle or compromise any claim, audit or assessment or enter into any closing agreement relating to agreements in respect of any material amount of Taxes, or (E) otherwise settle consent to any dispute relating extension or waiver of the limitations period applicable to Taxesany material Tax claim or assessment, (F) surrender any right to claim a Tax refund, offset or other reduction in Tax liability, or (G) request any ruling or similar guidance with respect to Taxesthan, in each case, excluding for (1) in the avoidance ordinary course of doubtbusiness, any such action that is solely (2) as required by Applicable Law, or (3) with respect to any Seller Group or Seller Group Tax ReturnCombined Taxes; (ixxiv) make any change to its methods of financial accounting, except as required by changes in GAAP or other Applicable Law; (xxv) create any Subsidiary of a Company; (xvi) (A) adopt a plan or agreement of complete or partial liquidation or liquidation, dissolution; (xi) enter into any Contract that would be required to be listed in Section 3.11(a) of the Seller Disclosure Schedule if entered into prior to the date of this Agreement or modify, amend or terminate any Material Contractmerger, other than any renewal of a Material Contract on terms and conditions that are substantially the same or better (from the Company Group’s perspective) than the terms and conditions of the pre-existing Material Contract; (xii) abandon or discontinue rail service over any track or facilities operated by any Company Group member; (xiii) grant to any Person any easementconsolidation, licenserestructuring, trackage rights, haulage rights recapitalization or other right material reorganization or (B) file a bankruptcy petition under any provisions of use federal or access to any track or facilities operated by any Company Group member; (xiv) enter into, amend or otherwise modify a collective bargaining agreement, other than the negotiation and renewal of collective bargaining agreements which, state bankruptcy law on their terms have or will expire prior to the Closing Date; provided that, prior to the entry into any renewal of a collective bargaining agreement that has or will expire prior to the Closing Date, Buyer shall be afforded a reasonable opportunity to meet with Representatives of Seller involved in the relevant negotiations to discuss such negotiations and Seller shall cause such Representatives to consider any related input Buyer may have in good faith; (xv) enter into any neutrality agreement or grant voluntary recognition to any labor union or labor organization as representative behalf of any Company Employees; (xvi) incur or consent to the filing of any third party Indebtedness or grant bankruptcy petition against any Liens (other than a Permitted Lien); (xvii) pay Company under any payable owing to any Affiliate or forgive any Indebtedness due or owing from any Affiliate (other than any other Company Group member) other than (A) as contemplated by Section 5.09 and (B) in the ordinary course of business; (A) accelerate receivables, (B) delay payables, or (C) change in any material respect its practices in connection with the payment of payables or the collection of receivablessimilar law; or (xixxvii) agree or commit to do any of the foregoing. (b) Notwithstanding anything in Section 5.01(a) to ; provided that, the contrary, Seller Sellers and their respective Affiliates shall be permitted to takeconsummate the Pre-Closing Restructuring and the Tiger’s Milk Contribution without requiring the written consent of Buyer, and shall be permitted to cause any Cash held by or on behalf of the Company Group members to take, Companies in a swept account of a Seller or any COVID Actions; provided, however, that, of its Affiliates immediately prior to undertaking any COVID Action after the date hereof or materially expanding or modifying any previously taken COVID Action, Seller shall consult Closing will be used in the manner described on Annex C in connection with Buyer and consider in good faith Buyer’s suggestions or other recommendations with respect to such COVID Actionthe Pre-Closing Restructuring.