Purchaser Financing Purchaser assumes full responsibility to obtain the funds required for settlement, and Purchaser’s acquisition of such funds shall not be a contingency to the Closing.
Conduct of Business Prior to the Closing (a) Without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, except (x) as otherwise contemplated by this Agreement, the Closing Agreements or the Restructuring, (y) as disclosed on Section 5.1 of the Seller Disclosure Schedule or (z) as required by Law or Order, during the Pre-Closing Period, Seller shall cause the Sold Companies to conduct their businesses (other than in respect of the Legacy Defense Business, which shall not be subject to this Section 5.1(a)) in the ordinary course of business and, to the extent consistent therewith, use commercially reasonable efforts to maintain satisfactory relationships with suppliers, customers, and other third parties having material business relationships with the Sold Companies (other than in respect of the Legacy Defense Business, which shall not be subject to this Section 5.1(a)).
(b) In furtherance of Section 5.1(a), without the consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, except (x) as otherwise contemplated by this Agreement, the Closing Agreements or the Restructuring, (y) as disclosed on Section 5.1 of the Seller Disclosure Schedule or (z) as required by Law or Order, during the Pre-Closing Period, Seller shall cause each Sold Company (other than in respect of any actions relating to the Legacy Defense Business, which shall not be subject to this Section 5.1(b)) not to (and in the case of Section 5.1(b)(ii)(B), Seller shall not):
(i) amend its certificate of incorporation or bylaws or comparable organizational documents;
(ii) (A) issue, deliver, sell, pledge, dispose of or encumber any shares of capital stock or other ownership interests, or any options, warrants, convertible securities or other rights of any kind to acquire or receive any shares of capital stock or other ownership interests, in the Sold Companies, or (B) issue or grant any Seller Options;
(iii) reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire any shares of capital stock or ownership interests;
(iv) (A) incur any obligations or commitments to make any capital expenditures in excess of $250,000 in the aggregate following the Closing, or (B) cease to continue to make capital expenditures in the ordinary course of business;
(v) with respect to Company Products, make any material change in the selling, distribution, advertising, terms of sale or collection practices outside of the ordinary course of business consistent with past practices;
(vi) after the close of business on the Business Day immediately preceding the Closing Date, declare, set aside, make or pay any dividend or other distribution in respect of the capital stock or other ownership interests of any of the Sold Companies or repurchase, redeem or otherwise acquire, or grant any rights or enter into any Contracts or commitments to repurchase, redeem or acquire, any outstanding shares of the capital stock or ownership interests of any of the Sold Companies;
(vii) acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any assets, other than purchases of inventory and other assets in the ordinary course of business and pursuant to existing Contracts made available to Buyer prior to the date hereof;
(viii) sell, lease, license, assign, transfer or otherwise dispose of (whether by merger, consolidation or acquisition of stock or assets or otherwise) (A) any corporation, partnership or other business organization or division thereof or (B) any Inventory, equipment, assets, rights or properties (including Intellectual Property) for consideration in excess of $50,000, or abandon or allow to expire any issued patent or material registration or application included in the Company-Owned Intellectual Property, in each case, other than (w) sales or dispositions of Inventory and licenses of products and services, in each case, in the ordinary course of business, (x) pursuant to existing Contracts made available to Buyer prior to the date hereof, (y) non-exclusive licenses of Company-Owned Intellectual Property granted in the ordinary course of business as necessary to make available the Company Products or (z) sales of dispositions of obsolete and worthless assets or scrap;
(ix) sell, lease, license, assign, pledge transfer, abandon, permit any Lien on or otherwise dispose of any Company-Owned Intellectual Property used in or necessary for the operation of the businesses of the Sold Companies, other than (x) non-exclusive licenses of Company-Owned Intellectual Property granted in the ordinary course of business or (y) pursuant to existing Contracts made available to Buyer prior to the date hereof;
(x) modify, amend, terminate or waive any rights under any Material Contract in any material respect or enter into any new Contract that would be a Material Contract if entered into prior to the date of this Agreement;
(xi) acquire or obtain any license to any Intellectual Property or technology other than in the ordinary course of business (including commercially available computer software available or design tools on standard terms and in object-code form) for consideration not to exceed $100,000 in the aggregate;
(xii) permit the loss, expiration or termination of any material license or right to any third party Intellectual Property used in or necessary for the operation of the businesses of the Sold Companies other than in the ordinary course of business;
(xiii) agree to by any exclusivity, non-competition, most favored nation, or similar provision or covenant restricting the Sold Companies from competing in any line of business or with any Person or in any area or engaging in any activity or business (including with respect to the development, manufacture, marketing or distribution of their respective products or services);
(xiv) disclose any material trade secrets or other material proprietary or confidential information of the Sold Companies to any Person not subject to a confidentiality or non-disclosure agreement;
(xv) except in the ordinary course of business, make any loans, advances or capital contributions to, or investments in, any other Person (other than in a Subsidiary or sister Subsidiary of such Person);
(xvi) except to the extent required under any Company Benefit Plan or Seller Benefit Plan in existence as of the date hereof or as required by applicable Law: (A) hire or terminate (other than for cause) any Business Employee who holds (or, if hired, would hold) the position of “vice president”, “director”, “manager”, “senior engineer”, “executive” or any other individual in a salary grade of 07 or higher or any individual consultant of the Sold Companies, except with respect to individual consultants who perform services for any of the Sold Companies whose aggregate fees are less than $100,000, (B) increase or establish, or commit to increase or establish, the compensation or benefits of any Business Employee or individual consultant of the Sold Companies, (C) establish, adopt, enter into, amend in any material respect or terminate any Seller Benefit Plan or Company Benefit Plan, in each case, affecting any Business Employees, (D) accelerate the vesting or payment of any compensation or benefits under any Seller Benefit Plan or Company Benefit Plan, in each case, with respect to any Business Employees, or (E) grant any cash bonus, incentive, performance or other incentive compensation to any Business Employee;
Project Financing DZS poskytne příspěvek na financování nákladů na projekt, přičemž maximální výše grantu činí XXXXXXX CZK (XXXXXXX EUR). Grant určený na realizaci projektu pokrývá 100 % způsobilých výdajů. Bližší specifikace rozpočtu a jeho členění jsou ukotveny v Příloze I.
Operations Prior to the Closing Date (a) From the ------------------------------------ date hereof through the Closing Date, Parent shall cause the Companies to operate and carry on the Business in the ordinary course in accordance with past practice and in compliance with all applicable Requirements of Law, including Environmental Laws. Consistent with the foregoing, Parent shall cause each of the Companies to use its reasonable efforts consistent with good business practice to (i) maintain the business organization of the Companies intact, (ii) keep available the services of any key employees of the Companies and (iii) preserve the goodwill and beneficial relationships of the suppliers, contractors, licensors, employees, customers, distributors and others having business relations with the Companies.
(b) Notwithstanding Section 7.4(a), except as set forth in Schedule -------------- -------- 7.4, except as contemplated by this Agreement or except with the express written --- approval of Buyer (which, in the case of clauses (ii), (iii), (vi), (ix), (x) and (xviii), Buyer agrees shall not be unreasonably withheld or delayed), Parent shall cause each of the Companies not to:
(i) make any material change in the Business or its operations, except such changes as may be required to comply with any applicable Requirements of Law;
(ii) make any capital expenditure or enter into any contract or commitment therefor, other than in the ordinary course of the Business, which is in excess of $50,000;
(iii) other than in the ordinary course of the Business, enter into any contract, agreement, undertaking or commitment which would have been required to be set forth in Schedule 5.14(a) or 5.14(b) if in effect on the ---------------- ------- date hereof or amend any Business Agreement in any material respect;
(iv) enter into any contract that contains a "change of control" provision that would give the other party a right to terminate such contract upon the consummation of the transactions contemplated hereby or under which the consummation of the transactions contemplated hereby would constitute a default;
(v) enter into any contract for the purchase of real property or exercise any option to extend a lease listed in Schedule 5.9; ------------
(vi) sell, lease (as lessor), transfer or otherwise dispose of (including any transfers to any of its Affiliates), or mortgage or pledge, or impose or suffer to be imposed any Encumbrance on, any of its properties, rights or assets, other than inventory and minor amounts of personal property sold or otherwise disposed of in the ordinary course of the Business consistent with past practice and other than Permitted Encumbrances;
(vii) cancel any debts owed to or claims held by it or pay, settle or discharge any claims/litigation, proceedings, actions or liabilities, other than in the ordinary course of the Business consistent with past practice;
(viii) create, incur or assume, or agree to create, incur or assume, any Indebtedness for Borrowed Money (other than money borrowed or advances from any of its Affiliates in the ordinary course of the Business consistent with past practice) or enter into, as lessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13);
(ix) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the ordinary course of the Business consistent with past practice;
(x) delay or accelerate payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of the Business consistent with past practice;
(xi) make, or agree to make, any distribution of assets (other than cash) to Parent or any of its Affiliates;
(xii) institute any increase in any benefit provided, or loan or advance any money or property, to any present or former director, officer, consultant or employee of any of the Companies, other than in the ordinary course of the Business consistent with past practice or as required by any Company Plan, Parent Plan or Requirements of Law;
(xiii) make any material change in the compensation of its employees, other than changes made in accordance with normal compensation practices of the Companies or pursuant to existing contractual commitments and consistent with past compensation practices, or grant any severance or termination pay to any of its employees or amend the form of retention and severance agreement contained in Schedule 7.4; ------------
(xiv) establish, adopt, enter into, amend or terminate any Company Plan, or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Company Plan if it were in existence on the date hereof, other than in the ordinary course of the Business consistent with past practice or as required by any Company Plan, Parent Plan or Requirement of Law;
(xv) make any material change in the accounting policies applied in the preparation of the Interim Financial Statements, unless such change is required by GAAP;
(xvi) make any change in its charter, by-laws or other organizational document or issue any capital stock (or securities exchangeable, convertible or exercisable for capital stock);
(xvii) split, combine or reclassify any shares of its capital stock or partnership or membership interests or declare, set aside or pay any dividends or make any other distributions (whether in cash, stock or other property) in respect of such shares or interests, except for cash dividends and distributions payable by a Conveyed Companies Subsidiary to any of the Companies, Parent or Affiliates of Parent;
(xviii) except as required by law, and except in cases where doing so would not have a material adverse consequence to Buyer Group Members with respect to taxable years or periods beginning after the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date, file any Tax Return in a manner inconsistent with past practice or take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in prior periods in filing Tax Returns (including any such position, election or method which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Parent is liable);
(xix) amend any Tax Returns or settle or compromise any proceeding relating to Tax liabilities of any Company, in either case if doing so would, or would reasonably be expected to, materially adversely affect any Buyer Group Member with respect to taxable years or periods beginning after the Closing Date or, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date;
(xx) enter into or amend any aviation, manufacturing or transportation customer contract, other than new contracts with existing customers and amendments to existing contracts, in each case, where the terms of such new contract or amendment are not materially less favorable to the Companies than existing contracts with such customers;
(xxi) enter into any joint venture, partnership or similar arrangement or acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture association or other business organization or division thereof;
(xxii) merge or consolidate with or into any other Person or dissolve or liquidate; or
(xxiii) authorize, commit or agree, whether in writing or otherwise, to do any of the foregoing.
Parent A parent, legal guardian or person in parental relation to the Student.
Conduct of Business Pending Closing Between the date of this Agreement and the Funding and Consummation Date, the Company will, except as set forth on Schedule 7.2:
(i) carry on its business in substantially the same manner as it has heretofore and not introduce any material new method of management, operation or accounting;
(ii) use its reasonable efforts to maintain its properties and facilities, including those held under leases, in as good working order and condition as at present, ordinary wear and tear excepted;
(iii) perform in all material respects all of its obligations under agreements relating to or affecting its respective assets, properties or rights;
(iv) use its reasonable efforts to keep in full force and effect present insurance policies or other comparable insurance coverage;
(v) use its reasonable efforts to maintain and preserve its business organization intact, retain its respective present key employees and maintain its relationships with suppliers, customers and others having business relations with the Company;
(vi) use its reasonable efforts to maintain compliance with all Licenses, laws, rules and regulations, consent orders, and all other orders of applicable courts, regulatory agencies and similar governmental authorities applicable to it;
(vii) maintain present debt and lease instruments and not enter into new or amended debt or lease instruments without the knowledge and consent of TCI (which consent shall not be unreasonably withheld), provided that debt and/or lease instruments may be replaced without the consent of TCI if such replacement instruments are on terms at least as favorable to the Company as the instruments being replaced; and
(viii) maintain or reduce present salaries and commission levels for all officers, directors, employees and agents except for ordinary and customary bonus and salary increases for employees in accordance with past practices.
Conduct of Business Prior to Closing Between the date of the execution of this Agreement and the Closing, the Borrower and the Guarantor Parties: (a) shall not enter into any agreements of any nature relating to or affecting the Loan Collateral or the business of the Borrower or Guarantor, including any agreement which may restrict the Borrower or Guarantor, as applicable, from operating its business as currently conducted unless the written consent of the Lender shall first be obtained, (b) shall not convey or remove from any location where now located, any of the Loan Collateral to be conveyed under the Conveyance Documents, (c) shall not cancel any insurance policies with respect to the Loan Collateral and shall preserve and maintain its permits and licenses including any cannabis related licenses, (d) shall use commercially reasonable efforts to continue to operate the Cannabis Business and the Loan Collateral in the ordinary course consistent with past practice, subject to the availability of sufficient working capital and the Borrower and Guarantor’s reasonable business judgment, (e) shall use commercially reasonable efforts to preserve the rights, franchises, goodwill and relationships of its employees, customers, lenders, suppliers, regulators and others having business relationships with the Borrower and Guarantor and shall maintain the Loan Collateral in a state of repair and condition that is consistent with the requirements and normal conduct of the business of the Borrower and Guarantor, subject to the availability of sufficient working capital and the Borrower and Guarantor’s reasonable business judgment, (f) shall maintain its books and records in accordance with past practice, (g) shall not incur any Indebtedness other than Permitted Indebtedness or authorize or commit to the same, (h) shall not lend money to or guarantee the debts of any other Person or authorize or commit to the same, (i) shall not issue or amend any securities or authorize or commit to the same, except as contemplated by the Call Option Agreement, (j) shall not take any action that would materially delay, prohibit or impede the transactions contemplated by this Agreement or the Call Option Agreement, (k) shall fully cooperate with any reasonable requests of appraisers retained by the Lender or its counsel, (l) shall comply in all material respects with applicable laws, (m) shall not lend money to, or guarantee the debts of, any other Person, (n) shall not settle or commence any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity commenced to which the Borrower or Guarantor is a party, (o) shall not amend its constating documents, (p) shall not effect any split, consolidation, reclassification, redemption or repurchase of its securities, (q) shall not reorganize, amalgamate or merge, (r) shall not undertake any voluntary dissolution, liquidation or winding-up or any other disposition of its assets for the purpose of winding up, (s) shall not declare, set aside or pay any dividend or other disposition of any kind or nature (whether in cash, stock or property or any combination thereof) in respect of any securities, (t) shall not make any bonus or profit sharing distribution or similar payment of any kind, (u) except as required by applicable law, shall not agree to or make any severance, change of control or termination payment or increase the compensation of any employee, officer, director or consultant, (v) shall not terminate, dismiss, demote or otherwise decrease the job requirement of any officer, (w) shall not appoint any officer, (x) shall complete on a timely basis all requisite filings with Governmental Authorities or as may otherwise be required under applicable law, (y) shall allow a representative of the Lender to attend and observe any meeting of the board of directors of the Borrower or Guarantor, (z) shall not make or enter into any commitment or agreement in contravention of the foregoing and (aa) shall use best efforts to satisfy the conditions to Closing set forth in Section 3 of this Agreement. Notwithstanding the Existing Events of Default, the Borrower and Guarantor Parties shall comply with all covenants contained in the Loan Agreement and the other Loan Documents subject to the continuation of the Existing Events of Default; provided, that the Lender hereby consents to the Transfer of the Loan Collateral to the Designee and such Transfer shall not constitute a Default or Event of Default under the Loan Documents. Notwithstanding the foregoing, to the extent the Modesto Planning Department informs the Lender that any covenant contained in Section 4 of this Agreement constitutes “control” requiring thirty (30) day prior written consent from the Modesto Planning Department, the parties hereto agree that (i) upon written notice from the Lender such covenant shall be deemed to be of no force and effect until such thirty (30) day prior written notice from the Modesto Planning Department has been obtained, (ii) to the extent requested by the Lender in writing, the parties shall agree to amend this Agreement to remove or modify such covenant only to the extent required so as to not trigger such thirty (30) day prior written consent requirement, and (iii) solely to the extent the Lender elects in its sole discretion by written notice to the other parties, this Agreement shall be deemed terminated.
First Closing The First Closing shall have occurred.
Prior to Closing As used herein, “Compensation” shall mean the direct salaries and wages and other aggregate compensation paid to or accrued for the benefit of any employee together with all fringe benefits payable to or accrued for the benefit of such employee as to which the employer is responsible, including, without limitation, employer contributions under F.I.C.A., fringe benefits, annual bonuses, unemployment compensation or other employment taxes, pension fund contributions, vacation pay, sick leave, worker’s compensation, group life and accidental and health premiums, and pension or profit sharing, retirement, disability and other similar benefits. Purchaser shall be responsible for and shall pay (i) all Compensation with respect to the operations of the Property on and after the date of Closing and (ii) all Compensation which is accrued but not payable as of the Closing and for which Purchaser is credited at Closing. For these purposes, vacation benefits, sick leave, annual bonuses and related payroll expenses of Hotel Employees (the “Supplemental Employee Expenses”) as of the Closing shall be treated as accrued and subject to proration solely (A) if vested and not subject to expiration if not used or termination in the event of the employee’s departure or (B) to the extent of 70% of any such accrued Supplemental Employee Expenses subject to later vesting or expiration if not used or termination in the event of the employee’s departure. With respect to accrued bonuses for 2006, Seller’s pro-rated share at Closing shall be based upon Operator’s reasonable estimate of the bonuses to be paid to such Hotel Employees for 2006. No later than March 31, 2007, or earlier upon the mutual agreement of the parties, the parties shall adjust Seller’s pro-rated share of the bonuses paid to the Hotel Employees for 2006 based upon the actual amounts of such bonuses (as shown by such supporting documentation as may be reasonably required by either party), and Purchaser or Seller, as the case may be, shall make such additional payment or refund as shall be required by such adjustment. Purchaser acknowledges that the New HMA shall initially afford the Hotel Employees continuation of all rights under Operator’s existing Section 401(k) plans and health care plans, as previously afforded under the Current HMA.
Cooperation with Financing (a) Prior to the Closing, the Selling Entities shall use commercially reasonable efforts to provide to Buyer all cooperation that is reasonably requested by Buyer in connection with the Debt Financing, including: (i) assisting with the preparation and delivery of the Marketing Material; (ii) facilitating the pledging of collateral on the Assets, provided that no pledge shall be effective until the Closing; (iii) delivery to Buyer and its Debt Financing Sources of Required Information that is Compliant and the Financing Deliverables, in each case, as promptly as reasonably practicable following Buyer’s request therefor; (iv) assistance to Buyer in the negotiation of definitive financing documents, including guarantee and collateral documents, and customary closing certificates as may be required by the Debt Financing Sources, including the Financing Deliverables; (v) taking such actions as are reasonably requested by Buyer to facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Debt Financing that are within the Seller’s control; and (vi) providing, no later than three (3) Business Days prior to the Closing Date, all documentation and other information about the Selling Entities required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, that in each case has been requested in writing by Buyer at least ten (10) Business Days prior to the Closing Date; provided, however, that nothing in this Agreement shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Selling Entities; and provided, further, that notwithstanding anything in this Agreement to the contrary, the Selling Entities shall not (A) be required to pay any fees (including commitment or other similar fees) or to give any indemnities or incur any liabilities prior to the Closing, (B) have any liability or obligation under any loan agreement, debt security or any related document or any other agreement or document related to the Debt Financing (other than any such liabilities or obligations with respect to the Assets that become effective as of the Closing), (C) be required to provide access to or disclose information where such access or disclosure would jeopardize the attorney-client privilege or contravene any Applicable Law, or (D) be required to execute any document, certificate or instrument, or make any representation or warranty, in connection with the Debt Financing, except for customary authorization letters and any such contractual obligation, document, certificate or instrument that is conditioned upon, and not effective until, the consummation of the Closing.
(b) The Selling Entities hereby consent to the use of their respective logos in marketing materials for the Debt Financing; provided, however, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Selling Entities or the reputation or goodwill of the Selling Entities.
(c) Notwithstanding any other provision set forth herein or in any other agreement between the Selling Entities and Buyer (or, in each case, their Affiliates), the Selling Entities agree that Buyer may share non-public or confidential information regarding the Assets and the Assumed Liabilities with the Debt Financing Sources, and that Buyer, its Affiliates and such Debt Financing Sources may share such information with potential financing sources in connection with any Marketing Efforts (including any syndication) in connection with the Debt Financing; provided that the recipients of such information shall be treated as “Representatives” of Buyer pursuant to the Confidentiality Agreement.
