Conduct Pending Closing. Except as specifically identified otherwise on Schedule 5.2 of the Contributor Disclosure Schedules or as otherwise expressly provided by this Agreement or with the prior written consent of the Partnership, from June 1, 2015 until the Closing or termination of this Agreement as provided in Article VIII, Contributor shall, and shall cause its Subsidiaries to:
(a) operate the Assets in all material respects in the Ordinary Course of Business and use their commercially reasonable efforts to preserve the present business operations and organization relating to the Assets;
(b) with respect to the Assets, maintain books, accounts and records in the usual, regular and ordinary manner, on a basis consistent with prior years;
(c) use its commercially reasonable efforts to preserve intact its current material relationships and all material contractual and other obligations with third parties (including material customers and suppliers) having business dealings with the Partnership or any of its Subsidiaries;
(d) comply in all material respects with all Law to which the Assets are subject;
(e) not sell, transfer, assign, convey or otherwise dispose of the Membership Interests or any of the Assets other than the sale of inventory in the Ordinary Course of Business;
(f) not create or permit the creation of any Lien on the Membership Interests or any of the Assets other than Permitted Liens;
(g) not take any action that would materially adversely affect, or impede or impair, the ability of the Parties to consummate the transactions contemplated hereby or thereby;
(h) except as required by Law, not take any action that would reasonably be expected to result in any of the conditions to the Closing set forth in Article VI not being satisfied;
(i) not agree to take any action prohibited by this Section 5.2;
(j) not permit Kemmerer to increase its indebtedness, or incur any obligation or liability, direct or indirect, other than the incurrence of liabilities pursuant to existing agreements in the Ordinary Course of Business; or
(k) not permit Kemmerer to issue or sell any membership interests or other equity interests.
Conduct Pending Closing. (a) During the Pre-Closing Period:
(i) Seller shall conduct its businesses and operations in compliance in all material respects with all applicable Law (including the WARN Act) and with the requirements of all Specified Contracts;
(ii) Seller shall provide full cooperation and shall take whatever actions necessary to effect the transfer as of the Closing Date of all of Seller's Documentation and Foreign Documentation to Acquisition Sub;
(iii) Seller shall keep in full force, or renew at appropriate levels of coverage upon expiration, applicable insurance policies;
(iv) Seller will close all outstanding Product complaints received prior to the Closing Date, provided that if such complaints require return of the Product and such Product has not been returned at least ten (10) Business Days prior to the Closing Date, Seller shall have no obligation to close such complaints; and
(v) Seller shall promptly notify Parent and Acquisition Sub of any notice or other communication from any Person alleging that the Consent of such Person is or may be required in connection with any of the transactions contemplated by this Agreement.
(b) During the Pre-Closing Period, Seller shall not (without the prior written consent of Parent):
(i) (A) declare, accrue, set aside or pay any dividend on, or make any other distribution (whether in cash, securities or other property) in respect of, any of its outstanding capital stock , (B) split, combine or reclassify any of its outstanding capital stock or other equity interests or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock or other equity interests (other than the issuance of Seller Common Stock pursuant to the valid exercise of options to acquire Seller Common Stock outstanding as of the date of this Agreement), or (C) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares
(ii) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction;
(iii) form any subsidiary or directly or indirectly acquire any equity or other interest in, or make any other in...
Conduct Pending Closing. From the date of this Agreement to the Closing Date, and except as otherwise specifically provided in this Agreement or consented to or approved by the Purchaser in advance in writing, such consent or approval not to be unreasonably withheld or delayed, the Shareholders agree as follows:
(a) the Shareholders shall cause the Company to carry on its business substantially in the same manner as heretofore conducted and shall not engage in any transaction or activity, enter into or amend any agreement or make any commitment except in the ordinary course of business;
(b) the Shareholders shall use reasonable commercial efforts to preserve the Company’s existence and business organization intact and to preserve the Company’s business, properties, assets and relationships with its personnel, suppliers, customers and others with whom it has business relations;
(c) the Shareholders shall cause the Company to distribute all cash and cash equivalents to the Shareholders, except for cash necessary to cover outstanding checks as of the date of the Closing;
(d) the Shareholders shall cause the Company to not (A) grant any special conditions with respect to any Account Receivable other than in the ordinary course of business consistent with past practice, (B) fail to pay any Account Payable on a timely basis in the ordinary course of business consistent with past practice, (C) except as disclosed in this Agreement, make or commit to make any capital expenditures in excess of $10,000 in the aggregate without the prior written consent of the Purchaser or (D) start up or acquire any new business or product line which is not similar to or directly complementary to any existing business or product line;
(e) the Shareholders shall cause the Company to not enter into any settlement with respect to any Proceeding against or relating to the Company; and
(f) the Shareholders shall not voluntarily take any action or cause the Company to take any action, or voluntarily fail to take any action or cause the Company to voluntarily fail to take any action the failure of which, would cause, any representation or warranty of the Shareholders contained in this Agreement to be breached or untrue in any material respect.
Conduct Pending Closing. (a) Seller covenants and agrees that, from the date hereof (except as otherwise set forth below) to the Closing Date:
(i) Seller will cooperate with Purchaser in permitting Purchaser’s respective authorized representatives to review and copy any and all Resident Agreements, records, books, contracts, and commitments relating to the Property, and permit Purchaser and its authorized representatives free access to the Property upon prior notice to Seller or its representatives, subject to rights of the residents under their Resident Agreements.
(ii) Seller will use reasonable efforts to preserve for Purchaser the goodwill of Seller’s residents and others having business relations with the Property.
(iii) Seller will operate, maintain and manage the Property consistent with the manner in which Seller has operated, maintained and managed the Property.
(iv) Seller will perform and pay all of its obligations in the normal course of business so as not be to in material default with respect thereto, and shall maintain and keep in effect all insurance policies covering the Property.
(v) Seller agrees that Seller will not enter into any agreement affecting the Property without first obtaining Purchaser’s prior written consent (not to be unreasonably withheld), except Seller has the right to enter into Resident Agreements with respect to any rooms constituting the Property in the normal course of business for a term of not more than thirty (30) days and for a monthly rental rate not less than the applicable Medicaid rate for a semi-private room.
(vi) Seller shall promptly deliver to Purchaser any correspondence or other documents received by Seller related to the real estate tax assessment of the Property.
(vii) Seller shall file all cost and other reports required to be filed pursuant to the Medicare and Medicaid programs, accurately and on or prior to their due dates.
Conduct Pending Closing. Prior to each applicable Closing Date, each Party shall, and shall cause its subsidiaries to (in each case, except to the extent that the applicable matter is the responsibility of any applicable Dealer or Agent), (a) maintain its Properties and related equipment in working condition and repair and covered by existing policies of insurance; (b) comply in all material respects with all Assumed Contracts to which it is a party; (c) collect its accounts receivable and pay its accounts payable in the ordinary and usual course consistent with past practice; (d) except for the Dealerizations, operate its Properties in the ordinary course of business, consistent with their operations for the 12-month period prior to the date hereof, and (e) not take, directly or indirectly, any of the following actions with respect to the Assets to be assigned by it hereunder unless the other Party otherwise consents in writing or as required by applicable law:
(i) sell, lease or otherwise dispose of any of its Properties or Material Items of Equipment, or cause or permit any Lien to exist on any of its Properties or other Assets (except Permitted Liens);
(ii) make any capital expenditures at its Properties or enter into any Contract to do so that will not be completed prior to the applicable Closing Date;
(iii) assign, delegate, amend, terminate or permit to lapse, any of its Assumed Contracts; or
(iv) terminate or permit the lapse of any Permit necessary for its ownership or operation of any of its Properties. Prior to each applicable Closing Date, each Party shall confer with the other Party on a regular basis to keep it informed with respect to operational matters of a material nature relating to its Assets and to report the general status of the ongoing operations of the Properties and will give prompt notice to the other Party of any communication from any third party alleging that the consent of such third party is or may be required in connection with the transactions contemplated by this Agreement. Each Party shall also deliver to the other Party monthly income statements, fuel volume reports and other financial information reasonably requested by the other Party with respect to its Properties that have not yet been assigned hereunder, promptly after such information becomes available.
Conduct Pending Closing. From the date hereof until the Closing, the Company shall, and Seller shall cause the Company to, conduct and carry on its businesses in the Ordinary Course, and use commercially reasonable efforts to preserve intact the assets and properties of the Company, reasonable wear and tear excepted, as well as the Company Employees, and maintain and preserve their relationships with customers, suppliers and others having business relationships with the Company. Except as contemplated by this Agreement, as set forth in Section 6.03 of the Disclosure Schedule or as otherwise consented to in writing by Buyer, the Company shall, and Seller shall cause the Company to:
(a) not split, combine or reclassify any Shares or other equity interests;
(b) not declare, set aside, make or pay any dividend or other distribution in respect of the Shares or any other equity interests of the Company;
(c) not authorize for issuance, issue or sell or agree or commit to issue or sell (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any shares of capital stock or other equity interests, or grant any stock appreciation, phantom stock, profit participation, profits interests or similar rights or obligations with respect to any capital stock or other equity interests;
(d) not redeem or repurchase any Shares or other equity interests, except repurchases of any equity interests issued to employees or directors of, or consultants or advisors to, the Company in connection with the termination of such employee, director, consultant or advisor;
(e) not make any change to the Organizational Documents;
(f) not purchase, sell, lease, license, mortgage, pledge or otherwise acquire or dispose of any properties, rights or assets with a value in excess of $50,000;
(g) other than in the Ordinary Course, except as set forth in Section 4.10(a) of the Disclosure Schedule, not enter into, or become obligated under, any Contract that would be a Material Contract if existing on the date hereof except for any lease, contract, agreement or commitment with respect to capital expenditures in accordance with Section 6.03 or not prohibited by Section 6.03(p);
(h) except as specifically provided in this Agreement, materially amend, waive or terminate (except in the event the term thereof ends) any Material Contract; provided, however, that the foregoing shall in no event prohibit the Company from amending, renewing or extending Material Contr...
Conduct Pending Closing. The Business of ----------------------- Seller shall be conducted only in the ordinary course consistent with past practices.
Conduct Pending Closing. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Closing, the Company shall, and shall cause each of its Subsidiaries to (i) conduct its business in the ordinary course of business, (ii) maintain its corporate existence, preserve intact its business organization and, except in the ordinary course of business, its assets, (iii) keep available the services of its present executive officers, (iv) maintain in effect the Material Contracts (subject to the expiration of any such Contract pursuant to its terms), and (v) preserve present material business relationships with suppliers, customers, licensees and other Persons.
Conduct Pending Closing. Prior to Closing or termination of this Agreement, unless Seller shall otherwise consent in writing, Buyer shall not take any affirmative action which would intentionally cause any of Buyer’s representations and warranties set forth in Article 4 to be materially inaccurate as of Closing.
Conduct Pending Closing. (i) The business of Buyer ------------------------ shall be conducted only in the ordinary course consistent with past practices.
