Common use of Conduct of the Business Pending the Closing Clause in Contracts

Conduct of the Business Pending the Closing. Except as otherwise contemplated by this Agreement (including the information on the exhibits and schedules attached hereto), except with the prior written consent of Buyer, and except for any actions or omissions that would not be expected to have a Material Adverse Effect, during the period from the date hereof to and through the Closing Date, Sellers shall, subject to the limitations imposed on Sellers as a result of having filed the Bankruptcy Cases, conduct the Business in all material respects in the Ordinary Course of Business and in compliance with Applicable Law, and preserve in all material respects the present business operations, organization and goodwill of the Business; and without limiting the generality of the foregoing, from the date hereof until the Closing Date, subject to the foregoing exceptions, Sellers shall not (a) change any method of accounting or accounting practice used by them, except for any change required by generally accepted accounting principles, (b) establish or increase the benefits under, or promise to establish, modify or increase the benefits under, any employee benefit plan or otherwise increase the compensation payable to any Foods Employee, except in the Ordinary Course of Business or otherwise in accordance with existing plans and agreements consistent with past practice, or establish, adopt or enter into any collective bargaining agreement, (c) obtain any rulings or make any elections with respect to Taxes, or enter into any agreements with any taxing authority in the event the same could materially and adversely impact the Business, (d) merge or consolidate with any other Person or acquire a material amount of assets of any other Person, (e) except in the Ordinary Course of Business, lease, license or otherwise surrender, relinquish, encumber, or dispose of any Transferred Assets other than the disposition of obsolete or damaged immaterial Transferred Assets, (f) fail to maintain Inventory to and including the Closing Date of a quality usable and salable in the Ordinary Course of Business (which takes into account normal levels of damaged, short dated, obsolete or outdated goods or supplies), and in quantities in accordance with the Ordinary Course of Business and adjusted for seasonality, (g) create accounts receivable to be included among the Transferred Assets other than those arising from bona fide transactions in the Ordinary Course of Business, or (h) establish accounts payable to be included among the Assumed Liabilities other than those arising from bona fide transactions in the Ordinary Course of Business. For the avoidance of doubt, the foregoing shall not require Sellers to make any payments, incur any costs, or enter into or amend any contractual arrangements, agreements or understandings, unless such payment, incurrence or other action is required by Applicable Law, by contractual obligation with such third parties or to operate in the Ordinary Course of Business.

Conduct of the Business Pending the Closing. Except as otherwise contemplated by this Agreement (including the information on the exhibits and schedules attached hereto), except with the prior written consent of Buyer, and except for any actions or omissions that would not be expected to have a Material Adverse Effect, during the period from the date hereof to and through the Closing Date, Sellers shall, subject to the limitations imposed on Sellers as a result of having filed the Bankruptcy Cases, conduct the Business in all material respects in the Ordinary Course of Business and in compliance with Applicable Law, and preserve in all material respects the present business operations, organization and goodwill of the Business; and without limiting the generality of the foregoing, from the date hereof until the Closing Date, subject to the foregoing exceptions, Sellers shall not (a) Except as expressly provided otherwise in this Agreement, Seller shall cause APL and the APL Subsidiaries to (i) conduct APL's Business in the ordinary course consistent with its past practice and (ii) use their commercially reasonable best efforts to maintain the assets of APL's Business in substantially the same condition (except normal wear and tear) existing on the Effective Date and to maintain the services of, and with respect to APL's Business, good relations with, APL's customers and suppliers. (b) Except as expressly provided otherwise in this Agreement, including the transactions contemplated by Section 3.1 and the ASI Conversion and APL Conversion, Seller shall cause APL and the APL Subsidiaries not to take any of the following actions: (i) incur, assume or guarantee any indebtedness or make any loans, advances or capital contributions to or investments in any other Person, in each case other than in the ordinary course of business consistent with its past practice; (ii) sell, transfer, pledge or otherwise dispose of any property that is used or held for use in APL's Business, except for sales of inventory (unless otherwise agreed by Buyer in writing) and the sale, transfer or other disposition of uneconomic or obsolete equipment in the ordinary course of business consistent with its past practice; (iii) except for transfers of cash in the ordinary course of business under Seller's cash management program, including daily sweeps of substantially all cash to Seller, or as otherwise provided by this Agreement, split, combine or reclassify any shares of its capital stock, declare, set aside or pay any dividends or other distributions in respect of its capital stock or redeem, purchase or otherwise acquire any of its capital stock; (iv) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver (whether through the issuance or granting of options, warrants, commitments, subscriptions, rights to purchase or otherwise) any capital stock of any class or any other securities or equity equivalents or amend any of the terms of any such securities or agreements; (v) cancel or compromise any indebtedness owed to it or waive any claims or rights except in the ordinary course of business consistent with its past practice; (vi) make any capital expenditure or commitment in excess of $5 million individually or $25 million in the aggregate, except as required by Applicable Law; (vii) make any change in any method of accounting or keeping of books of account or accounting practice used practices or principles, except as required by themApplicable Law; (viii) except as set forth in Section 4.13 of the Disclosure Schedule and except in the ordinary course of business consistent with its past practice, enter into, materially modify, amend or terminate, or waive any material rights under, any contract listed on Section 4.13 of the Disclosure Schedule; (ix) close any facilities which are material to the financial condition, results of operations or business of APL's Business; (x) amend the charter documents or other governing instruments of, or cause the liquidation or dissolution of, or fail to preserve the existence of, APL or any of the APL Subsidiaries; or (xi) mortgage, pledge or subject to any Lien any assets included in APL's Business, except for any change required by generally accepted accounting principles, (b) establish or increase the benefits under, or promise to establish, modify or increase the benefits under, any employee benefit plan or otherwise increase the compensation payable to any Foods Employee, except in the Ordinary Course of Business or otherwise in accordance with existing plans and agreements consistent with past practice, or establish, adopt or enter into any collective bargaining agreement, (c) obtain any rulings or make any elections with respect to Taxes, or enter into any agreements with any taxing authority in the event the same could materially and adversely impact the Business, (d) merge or consolidate with any other Person or acquire a material amount of assets of any other Person, (e) except in the Ordinary Course of Business, lease, license or otherwise surrender, relinquish, encumber, or dispose of any Transferred Assets other than the disposition of obsolete or damaged immaterial Transferred Assets, (f) fail to maintain Inventory to and including the Closing Date of a quality usable and salable in the Ordinary Course of Business (which takes into account normal levels of damaged, short dated, obsolete or outdated goods or supplies), and in quantities in accordance with the Ordinary Course of Business and adjusted for seasonality, (g) create accounts receivable to be included among the Transferred Assets other than those arising from bona fide transactions in the Ordinary Course of Business, or (h) establish accounts payable to be included among the Assumed Liabilities other than those arising from bona fide transactions in the Ordinary Course of BusinessPermitted Liens. For the avoidance of doubt, none of the foregoing covenants set forth in this Section 6.2 are intended to or shall impose any restriction on the operations of APL or its Affiliates' activities that are not require Sellers related to make APL's Business; specifically, APL may sell or transfer any payments, incur Excluded Assets prior to Closing and any costs, or enter into or amend any contractual arrangements, agreements or understandings, unless such payment, incurrence cash or other action is required by Applicable Law, by contractual obligation with proceeds from such third parties sale or to operate in the Ordinary Course of Businesstransfer shall constitute Excluded Assets.

Conduct of the Business Pending the Closing. Except (a) Between the Effective Date and the Closing, except (i) as required by applicable Law or Contract in effect as of the Effective Date, (ii) as otherwise contemplated by expressly provided for in this Agreement or (including the information on the exhibits and schedules attached hereto), except iii) with the prior written consent of Buyer, and except for any actions or omissions that would Purchaser (which consent shall not be expected to have a Material Adverse Effectunreasonably withheld, during delayed or conditioned), Seller shall maintain the period from the date hereof to System in good working order and through the Closing Date, Sellers shall, subject to the limitations imposed on Sellers as a result of having filed the Bankruptcy Cases, conduct the operations of the System and the Business in all material respects only in the Ordinary Course of Business and in compliance with Applicable Law, and preserve in all material respects Business. Purchaser acknowledges that historical or planned levels of capital spending based on capital plans developed on the present business operations, organization and goodwill assumption of Seller’s continued ownership of the Business; and without limiting System are not indicative of levels of capital spending Seller may incur after the generality of the foregoing, from the date hereof until the Closing Effective Date, subject due, in part, to the foregoing exceptionsthere being an insufficient rate of return on investment to justify, Sellers shall not (a) change any method of accounting or accounting practice used by themin Seller’s sole business judgment, except for any change required by generally accepted accounting principles, certain expenditures. (b) establish Between the Effective Date and the Closing, except (i) as required by applicable Law or increase System Contract in effect as of the benefits underEffective Date, (ii) as otherwise expressly provided for in this Agreement, or promise to establish(iii) with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, modify delayed or increase the benefits underconditioned), any employee benefit plan or otherwise increase the compensation payable to any Foods Employee, except in the Ordinary Course of Business or otherwise in accordance with existing plans and agreements consistent with past practice, or establish, adopt or enter into any collective bargaining agreement, Seller shall not: (cA) obtain any rulings or make any elections with respect to Taxes, or enter into any agreements with any taxing authority in the event the same could materially and adversely impact the Business, (d) merge or consolidate with any other Person or acquire a material amount of assets of any other Person, (e) except than in the Ordinary Course of Business, lease(1) increase the annual level of compensation of any Employee, license (2) grant any bonus, benefit or other direct or indirect compensation to any Employee, (3) adopt, amend or increase the coverage or benefits available under, any Employee Benefit Plan or (4) enter into any employment, deferred compensation, severance, consulting, non-competition or similar agreement (or amend any such agreement) with any Employee; (B) create, or permit to exist any lien on any of the Purchased Assets except for Permitted Exceptions; (C) sell, assign, license, transfer, convey, lease or otherwise surrender, relinquish, encumber, or dispose of any Transferred Assets other than the disposition of obsolete or damaged immaterial Transferred Assets, (f) fail to maintain Inventory to and including the Closing Date of a quality usable and salable in the Ordinary Course of Business (which takes into account normal levels of damaged, short dated, obsolete or outdated goods or supplies), and in quantities in accordance with the Ordinary Course of Business and adjusted for seasonality, (g) create accounts receivable to be included among the Transferred Assets other than those arising from bona fide transactions Purchased Asset except inventory in the Ordinary Course of Business, or for the purpose of disposing of obsolete assets no longer used or useful in the Business or in conjunction with the acquisition of replacement property of equivalent kind and value; (hD) establish accounts payable enter into any Contract or cause any amendment to be included among any Contract existing as of the Assumed Liabilities Effective Date that is either not terminable on 30 days prior written notice without penalty to Purchaser or which involves the payment of more than $10,000 and requires Purchaser to assume obligations under such Contract; (E) amend or modify in any material respect, or terminate or suspend, any Franchise or Permit or enter into any new Franchise or Permit; (F) other than those arising from bona fide transactions annual rate increases or as related to marketing activities, (A) change customer rates or charges; or (B) change billing, disconnect or marketing practices, except in the Ordinary Course of Business; or (G) agree to do anything prohibited by this Section 7.2. (c) Seller shall use commercially reasonable efforts to obtain and Purchaser shall (and each shall cause its respective Affiliates to) reasonably cooperate with Seller’s efforts to obtain agreements for the 3 year period commencing January 1, 2012 for the carriage of broadcast television stations that have elected retransmission consent pursuant to 47 C.F.R. §76.64. For (“Retransmission Consent Agreements”) and Seller shall keep Purchaser reasonably informed of its efforts to obtain such consents including the avoidance proposed terms and conditions of doubtsuch consents. Purchaser agrees that it shall not, without the foregoing prior written consent of Seller (which may be withheld at Seller’s sole discretion), seek amendments or modifications that would materially adversely affect Seller or Seller’s operation of the System prior to Closing. Seller’s obligations hereunder with respect to obtaining the Retransmission Consent Agreements shall not require Sellers be fully satisfied if Seller has executed a new contract with the respective broadcast station in writing on terms substantially similar to make any paymentsthe current terms thereof and for consideration that is substantially the same as the consideration being paid by cable television companies for carriage of substantially similar broadcast stations in substantially similar cable television systems. (d) Seller shall use commercially reasonable efforts to: (i) cause the System to be in compliance with all applicable FCC and other rate regulations; (ii) cause the headend located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ in Canon, incur any costsFranklin County, or Georgia to be in compliance with all applicable FCC and other rules and regulations regarding emergency alert systems; (iii) cause the tower located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ in Canon, Franklin County, Georgia to be dismantled and removed; and (iv) enter into or amend any contractual arrangementsa written arrangement with BellSouth Telecommunications, agreements or understandings, unless such payment, incurrence or other action is required by Applicable Law, by contractual obligation with such third parties or to operate Inc. for the approximately 96 pole attachments in the Ordinary Course of BusinessRoyston area referenced at Schedule 5.3(b)(v).