Continuity and Maintenance of Operations. From the date of this Agreement until the Closing, unless otherwise agreed to in writing by the Buyer, with respect to the assets and properties of the Companies and the Systems (other than the Transferred Assets): (a) Except as described in Schedule 7.12(a): (i) the Companies shall, and the Sellers shall cause the Companies to, continue to operate the Systems in the usual, regular and ordinary course consistent with past practice and make ordinary marketing, advertising, capital, promotional and other expenditures and implement ordinary pricing and promotional strategies consistent with past practice and, to the extent consistent with such conduct and operation, use commercially reasonable efforts to (a) preserve the current business intact in all material respects, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with the Companies and the Systems, (b) continue the Rebuild of the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w), (c) complete line extensions, placing conduit or cable in new developments and fulfill installation requests in the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer. (ii) the Companies shall continue to operate the Systems in material compliance with all Legal Requirements; (iii) without limiting the generality of the foregoing, each Company shall maintain its assets and properties consistent with past practice, maintain the Real Property in substantially the same condition as exists as of the date of this Agreement, ordinary wear and tear excepted, maintain commercially reasonable Inventory levels in its ordinary course of business (which shall include sufficient quantities of amplifiers, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business), maintain insurance as in effect on the date of this Agreement and keep all of its business books, records and files in the ordinary course of business; (iv) except in the ordinary course of business consistent with past practice, neither Company shall itself, or will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable (other than for their own residences) prior to the Closing Date; (v) each Company shall continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement or consistent with past practice; and (vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR service. (b) Except as described in Schedule 7.12(b), neither Company shall, except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreement, or with the prior written consent of the Buyer: (i) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Franchise, Governmental Authorization or Material Contract relating to the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, that the Buyer’s consent thereto will not be unreasonably withheld; (ii) change the rate charged for any subscriber service or establish a rate for DVR or HDTV service; (iii) sell, transfer or assign any of the Companies’ assets or properties to any Affiliate or any other third party, except for Transferred Assets, other than sales, transfers or assignments of inventory in the ordinary course of business and of obsolete or worn-out equipment; provided that the Companies shall not sell any digital converters currently used by the Systems without the prior consent of the Buyer; (iv) enter into any contract or commitment or incur any indebtedness or other Liability or obligation of any kind relating to the Systems; (v) enter into any agreement with a billing service with respect to the Systems; (vi) take any action that would result in the loss, lapse or abandonment of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets); (vii) with respect to the Systems, engage in any marketing, subscriber installation, collection or disconnection practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b); (viii) make any capital expenditure or series of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or (ix) take or commit to take any other action which, if taken prior to the date of this Agreement, would be required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date). (c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement or any Retained Programming Agreement. (d) The Cable Venture shall deliver to the Buyer correct and complete copies of (i) all rate regulation documents prepared or filed at any time between the date of this Agreement and the Closing, and (ii) all non-routine correspondence, filings and submissions with or to any Governmental Authority made between the date of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers of the Systems as of the last day of such month, listed by the subscriber categories described in Section 4.5(a). (e) Neither Company shall, with respect to any of its employees, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10: (i) increase or decrease in any manner the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); (ii) voluntarily recognize any union as collective bargaining representative of any of its employees; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employees; (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussions.
Appears in 2 contracts
Sources: Interest Acquisition Agreement (Arahova Communications Inc), Interest Acquisition Agreement (Adelphia Communications Corp)
Continuity and Maintenance of Operations. From the date of this Agreement until the Closing, unless otherwise agreed to in writing by the Buyer, with respect to the assets and properties of the Companies Assets and the Systems (other than the Transferred Assets):
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and the Sellers shall cause the Companies to, System: Each Seller will continue to operate its portion of the Systems System only in the usual, regular and ordinary course consistent with past practice practices, including taking the actions described in Schedule 6.1(a), and make making ordinary marketing, advertising, capital, promotional and other expenditures and implement ordinary pricing capital and promotional strategies consistent with past practice expenditures and, to the extent consistent with such conduct and operation, use using commercially reasonable efforts to to: (ai) preserve the current business intact in all material respects, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with the Companies System; and the Systems, (b) continue the Rebuild of the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w), (cii) complete line extensions, placing conduit or cable in new developments and fulfill installation requests in the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall business. Each Seller will continue to operate its portion of the Systems System in material compliance with all Legal Requirements;
(iii) without . Without limiting the generality of the foregoing, each Company shall Seller will maintain its assets Assets in good condition and properties consistent with past practice, maintain the Real Property in substantially the same condition as exists as of the date of this Agreement, ordinary repair (subject to normal wear and tear exceptedand routine repairs), maintain commercially reasonable Inventory levels inventories in its ordinary course of business (which shall include sufficient quantities of amplifiersat not less than normal historical levels consistent with past practices, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business), will maintain insurance as in effect on the date of this Agreement and will keep all of its their business books, records and files in the ordinary course of business;
(iv) except business in the ordinary course of business consistent accordance with past practice, neither Company shall practices. No Seller will itself, or will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable Seller's subscriber accounts receivable (other than for their own residences) prior to the Closing Date;
(v) each Company shall . Each Seller will continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement or and consistent with past practice; and
(vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR service.
(b) . Except as described in Schedule 7.12(b6.1(a), neither Company shall, except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreementno Seller will, or with will permit the System to, without the prior written consent of the Buyer:
: (i) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any System Contract, Franchise, Governmental Authorization or Material Contract relating to other instrument that would be included in the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System)Assets, provided, provided that the Buyer’s 's consent thereto will not be unreasonably withheld;
; (ii) add or delete any program services except to the extent required under the Cable Act or any other Legal Requirement or change the rate charged for any subscriber service or establish a rate for DVR or HDTV service;
; (iii) sell, transfer or assign any of the Companies’ Assets (or items that, if they were held on the Closing Date, would be Assets) except for (A) assets or properties transferred and assigned to any Seller pursuant to Section 6.9(b), (B) assets transferred by any Seller pursuant to Section 6.19, and (C) assets sold, transferred, assigned or disposed of to a Person that is not an Affiliate or of any other third party, except for Transferred Assets, other than sales, transfers or assignments of inventory Seller in the ordinary course of business consistent with past practice and replaced by other assets of obsolete comparable utility and value, or worn-out equipmentpermit the creation of any Encumbrance, other than a Permitted Encumbrance, on any Asset; provided that the Companies shall not sell any digital converters currently used by the Systems without the prior consent of the Buyer;
(iv) enter into any contract or commitment or incur any indebtedness or other Liability liability or obligation of any kind relating to the Systems;
System except in the ordinary course of business consistent with past practices and not involving an expenditure in excess of $25,000 individually (unless either (x) such contract or commitment has a term expiring prior to Closing, or (y) any Seller discloses such contract or commitment to Buyer in writing prior to the Closing and such contract or commitment can be terminated by Buyer upon not more than thirty (30) days' notice without liability to Buyer or the System); (v) enter into any agreement with a billing service with respect to the Systems;
System; (vi) take enter into any action programming arrangement relating to the System that would result in the loss, lapse provides for any Launch Fees; or abandonment of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(vii) with respect to the SystemsSystem, engage in any marketing, subscriber installation, collection or disconnection practices outside the ordinary course or inconsistent with past practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b);
(viii) make any capital expenditure or series campaigns not in existence as of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to the date of this Agreement. At the Closing, would be required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically Sellers will deliver to the Buyer a true, correct and complete an accurate copy of each Material Contract, Governmental Authorization or other agreement System Contract that is entered into after the date of this Agreement and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, Schedule 4.7, 4.8, 4.9, 4.10 4.11 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date).
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
(d) The Cable Venture shall 4.12. Sellers will deliver to the Buyer correct and complete copies of (i) monthly financial statements and operating reports (including year-to-date results) for the operations of the System within 60 days after each month's end and any other reports with respect to the operations of the System prepared by or for any Seller or any Affiliate of any Seller, (ii) all rate regulation documents prepared or filed at any time between the date of this Agreement and the Closing, and (iiiii) all non-routine material correspondence, filings filing and submissions with or to any Governmental Authority made between the date of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in including any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and stationsubsequent transfers). In addition, within 30 days after the last day of each calendar month, the Cable Venture shall Sellers will deliver to the Buyer a report setting forth the number of Equivalent Subscribers subscribers of the Systems System as of the last day of such month and the number of subscribers of the System whose service was disconnected during such month, in each case listed by the subscriber categories described in Section 4.5(a4.21(b) or Section 4.21(c).
(e) Neither Company shall, as applicable. All financial statements so delivered will be prepared on a basis consistent with the Financial Statements attached as Schedule 4.5. Each Seller will cause its appropriate Affiliates to be bound by and comply with the provisions of this Section 6.1 and this Agreement to the extent such Affiliates own, operate or manage any of the Assets or the System. Each Seller will cause any Affiliate which is a party to a System Contract or Governmental Authorization to assign such System Contract or Governmental Authorization to such Seller prior to the Closing Date so that such System Contract and Governmental Authorization shall be included in the Assets and conveyed to Buyer pursuant to this Agreement. No Seller will, with respect to any of its employeesEmployee, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 4.17 or Schedule 4.10: 4.18, (i) increase or decrease in any manner the compensation or fringe benefits of any employee Employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews), (ii) increase the number of Employees; (iiiii) voluntarily recognize any union as collective bargaining representative of any of its employeesthe Employees; (iiiiv) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employeesthe Employees; (ivv) enter into any government contract giving rise to affirmative action obligations relating to any of its employeesthe Employees; or (vvi) agree to do any of the foregoing. The Cable Venture shall Sellers will also notify the Buyer if, to the Companies’ KnowledgeKnowledge of Sellers, there is any union organizing involving, or directed towards, any group of employees of the CompaniesEmployees, and consult with the Buyer concerning the Companies’ Sellers' response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies Employees for collective bargaining purposes or, at the Buyer’s 's option, notify the Buyer of the progress of such discussions.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Charter Communications Inc /Mo/), Asset Purchase Agreement (Charter Communications Inc /Mo/)
Continuity and Maintenance of Operations. From the date of Except as specifically ---------------------------------------- permitted or required by this Agreement until or by any Legal Requirement, Seller shall:
A. Operate the Closing, unless otherwise agreed to in writing by the Buyer, with respect to the assets and properties of the Companies and the Systems (other than the Transferred Assets):
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and the Sellers shall cause the Companies to, continue to operate the Systems Business in the usual, regular and ordinary course consistent with past practice and make ordinary marketingpractices, advertisingincluding without limitation, capitalits billing, promotional and other expenditures marketing practices and implement ordinary pricing and promotional strategies consistent with past practice and, to the extent consistent with such conduct and operation, use commercially reasonable efforts to (a) preserve the current any beneficial business intact in all material respects, including preserving existing relationships with franchising authoritiescustomers, suppliers, customers employees, Governmental Authorities and others having business dealings with Seller relating to the Companies Business;
B. Maintain the Assets, including the plant and the SystemsEquipment related thereto, in good operating condition (b) continue the Rebuild of the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(wnormal wear and tear excepted), (c) complete line extensions, placing conduit or cable in new developments and fulfill installation requests in the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices implement any capital expenditures required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall continue to operate the Systems in material compliance with all Legal Requirementssuch maintenance;
(iii) without limiting C. Maintain all bonds and casualty and liability insurance relating to the generality of the foregoing, each Company shall maintain its assets and properties consistent with past practice, maintain the Real Property in substantially the same condition as exists as of the date of this Agreement, ordinary wear and tear excepted, maintain commercially reasonable Inventory levels in its ordinary course of business (which shall include sufficient quantities of amplifiers, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business), maintain insurance System as in effect on the date of this Agreement and keep Agreement;
D. Keep all of its business books, records and files in relating to the ordinary course of business;
(iv) except System in the ordinary course of business in accordance with past practices, and pay, consistent with past practicepractices, neither Company shall itselfall accounts payable and other debts, or will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable (other than for their own residences) prior liabilities and obligations relating to the Closing DateSystem;
(v) each Company shall continue E. Continue to implement its procedures for disconnection and discontinuance of service to System subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement Agreement;
F. Not sell, transfer or assign any Assets other than on an arms- length basis in the ordinary course of business consistent with past practice; andpractices;
G. Not permit the amendment or cancellation of any of the Governmental Permits, Contracts or any other contract or agreement (viother than those constituting Excluded Assets) which, individually or in the Companies aggregate, materially adversely effects the System or the Business, provided, that Seller shall make capital expenditures during satisfy all outstanding obligations under all personal property (including vehicle) lease arrangements so that all such Assets shall be free and clear of all Encumbrances at Closing;
H. Not enter into any contracts or commitments for the period from January 1acquisition of goods or services relating to the System or the Business, 2005 through the performance of which will not be completed by the Closing Date or involving an expenditure individually in an aggregate amount equal to 100% excess of the amount of capital $10,000 or expenditures budgeted in the 2005 Budget aggregate in excess of $30,000;
I. Not take or omit to take any action that would cause Seller to be in breach of any of its representations or warranties in this Agreement;
J. Maintain inventories for the period from January 1Business of equipment, 2005 through cable and supplies at normal levels consistent with past practice and good industry standards;
K. Not increase the Previous Month End (allocating compensation or change any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis benefits available to the three months employees of Seller who work in the quarter), including all capital expenditures at the head-end site Business except as required pursuant to launch HDTV-DVR service.
(b) Except as described in Schedule 7.12(b), neither Company shall, existing written agreements or except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreement, or ;
L. Report and write off Accounts Receivable in accordance with the prior written consent past practices;
M. Withhold and pay when due all Taxes relating to employees of the Buyer:Business, the Assets, the Business and/or the System;
(i) modifyN. Not create, amend, extend, terminate, renew, suspend, abrogate assume or enter into permit to exist any Franchise, Governmental Authorization or Material Contract relating to the assets or properties of the Companies or the Systems Encumbrance (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, that the Buyer’s consent thereto will not be unreasonably withheld;
(iiPermitted Encumbrances) change the rate charged for any subscriber service or establish a rate for DVR or HDTV service;
(iii) sell, transfer or assign on any of the Companies’ assets or properties to any Affiliate or any other third party, except for Transferred Assets, other than sales, transfers or assignments of inventory in the ordinary course of business and of obsolete or worn-out equipment; provided that the Companies shall not sell any digital converters currently used by the Systems without the prior consent of the Buyer;
(iv) enter into any contract or commitment or incur any indebtedness or other Liability or obligation of any kind relating to the Systems;
(v) enter into any agreement with a billing service with respect to the Systems;
(vi) take any action that would result in the loss, lapse or abandonment of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(vii) with respect to the Systems, engage in any marketing, subscriber installation, collection or disconnection practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b);
(viii) make any capital expenditure or series of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to the date of this Agreement, would be required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement and that, if it were in effect Encumbrances existing on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date).
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
(d) The Cable Venture shall deliver to the Buyer correct and complete copies of (i) all rate regulation documents prepared or filed at any time between the date of this Agreement and the Closing, and (ii) all non-routine correspondence, filings and submissions with or to any Governmental Authority made between the date of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers of the Systems as of the last day of such month, listed by the subscriber categories described in Section 4.5(a).
(e) Neither Company shall, with respect to any of its employees, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10: (i) increase or decrease in any manner the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); (ii) voluntarily recognize any union as collective bargaining representative of any of its employees; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employees; (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussions.hereof;
Appears in 2 contracts
Sources: Asset Purchase and Sale Agreement (Mediacom Capital Corp), Asset Purchase and Sale Agreement (Mediacom LLC)
Continuity and Maintenance of Operations. From the date of this Agreement until the Closing, unless otherwise agreed to in writing by the Buyer, with respect to the assets and properties of the Companies Assets and the Systems (other than the Transferred Assets):System:
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and the Sellers shall cause the Companies to, Each Seller will continue to operate its portion of the Systems System only in the usual, regular and ordinary course consistent with past practice practices, including taking the actions described in Schedule 6.1(a), and make making ordinary marketing, advertising, capital, promotional and other expenditures and implement ordinary pricing capital and promotional strategies consistent with past practice expenditures and, to the extent consistent with such conduct and operation, use using commercially reasonable efforts to to: (ai) preserve the current business intact in all material respects, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with the Companies System; and the Systems, (b) continue the Rebuild of the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w), (cii) complete line extensions, placing conduit or cable in new developments and fulfill installation requests in the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall business. Each Seller will continue to operate its portion of the Systems System in material compliance with all Legal Requirements;
(iii) without . Without limiting the generality of the foregoing, each Company shall Seller will maintain its assets Assets in good condition and properties consistent with past practice, maintain the Real Property in substantially the same condition as exists as of the date of this Agreement, ordinary repair (subject to normal wear and tear exceptedand routine repairs), maintain commercially reasonable Inventory levels inventories in its ordinary course of business (which shall include sufficient quantities of amplifiersat not less than normal historical levels consistent with past practices, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business), will maintain insurance as in effect on the date of this Agreement and will keep all of its their business books, records and files in the ordinary course of business;
(iv) except business in the ordinary course of business consistent accordance with past practice, neither Company shall practices. No Seller will itself, or will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable Seller’s subscriber accounts receivable (other than for their own residences) prior to the Closing Date;
(v) each Company shall . Each Seller will continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement or and consistent with past practice; and
(vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR service.
(b) Except as described in Schedule 7.12(b6.1(a), neither Company shall, except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreementno Seller will, or with will permit the System to, without the prior written consent of the Buyer:
: (i) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any System Contract, Franchise, Governmental Authorization or Material Contract relating to other instrument that would be included in the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System)Assets, provided, provided that the Buyer’s consent thereto will not be unreasonably withheld;
; (ii) add or delete any program services except to the extent required under the Cable Act or any other Legal Requirement or change the rate charged for any subscriber service or establish a rate for DVR or HDTV service;
; (iii) sell, transfer or assign any of the Companies’ Assets (or items that, if they were held on the Closing Date, would be Assets) except for (A) assets or properties transferred and assigned to any Seller pursuant to Section 6.9(b), (B) assets transferred by any Seller pursuant to Section 6.19, and (C) assets sold, transferred, assigned or disposed of to a Person that is not an Affiliate or of any other third party, except for Transferred Assets, other than sales, transfers or assignments of inventory Seller in the ordinary course of business consistent with past practice and replaced by other assets of obsolete comparable utility and value, or worn-out equipmentpermit the creation of any Encumbrance, other than a Permitted Encumbrance, on any Asset; provided that the Companies shall not sell any digital converters currently used by the Systems without the prior consent of the Buyer;
(iv) enter into any contract or commitment or incur any indebtedness or other Liability liability or obligation of any kind relating to the Systems;
System except in the ordinary course of business consistent with past practices and not involving an expenditure in excess of $25,000 individually (unless either (x) such contract or commitment has a term expiring prior to Closing, or (y) any Seller discloses such contract or commitment to Buyer in writing prior to the Closing and such contract or commitment can be terminated by Buyer upon not more than thirty (30) days’ notice without liability to Buyer or the System); (v) enter into any agreement with a billing service with respect to the Systems;
System; (vi) take enter into any action programming arrangement relating to the System that would result in the loss, lapse provides for any Launch Fees; or abandonment of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(vii) with respect to the SystemsSystem, engage in any marketing, subscriber installation, collection or disconnection practices outside the ordinary course or inconsistent with past practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b);
(viii) make any capital expenditure or series campaigns not in existence as of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to the date of this Agreement. At the Closing, would be required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically Sellers will deliver to the Buyer a true, correct and complete an accurate copy of each Material Contract, Governmental Authorization or other agreement System Contract that is entered into after the date of this Agreement and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, Schedule 4.7, 4.8, 4.9, 4.10 4.11 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date)4.12.
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
(d) The Cable Venture shall Sellers will deliver to the Buyer correct and complete copies of (i) monthly financial statements and operating reports (including year-to-date results) for the operations of the System within 60 days after each month’s end and any other reports with respect to the operations of the System prepared by or for any Seller or any Affiliate of any Seller, (ii) all rate regulation documents prepared or filed at any time between the date of this Agreement and the Closing, and (iiiii) all non-routine material correspondence, filings filing and submissions with or to any Governmental Authority made between the date of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in including any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and stationsubsequent transfers). In addition, within 30 days after the last day of each calendar month, the Cable Venture shall Sellers will deliver to the Buyer a report setting forth the number of Equivalent Subscribers subscribers of the Systems System as of the last day of such month and the number of subscribers of the System whose service was disconnected during such month, in each case listed by the subscriber categories described in Section 4.5(a4.21(b) or Section 4.21(c), as applicable. All financial statements so delivered will be prepared on a basis consistent with the Financial Statements attached as Schedule 4.5.
(d) Each Seller will cause its appropriate Affiliates to be bound by and comply with the provisions of this Section 6.1 and this Agreement to the extent such Affiliates own, operate or manage any of the Assets or the System. Each Seller will cause any Affiliate which is a party to a System Contract or Governmental Authorization to assign such System Contract or Governmental Authorization to such Seller prior to the Closing Date so that such System Contract and Governmental Authorization shall be included in the Assets and conveyed to Buyer pursuant to this Agreement.
(e) Neither Company shallNo Seller will, with respect to any of its employeesEmployee, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 4.17 or Schedule 4.10: 4.18, (i) increase or decrease in any manner the compensation or fringe benefits of any employee Employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews), (ii) increase the number of Employees; (iiiii) voluntarily recognize any union as collective bargaining representative of any of its employeesthe Employees; (iiiiv) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employeesthe Employees; (ivv) enter into any government contract giving rise to affirmative action obligations relating to any of its employeesthe Employees; or (vvi) agree to do any of the foregoing. The Cable Venture shall Sellers will also notify the Buyer if, to the Companies’ KnowledgeKnowledge of Sellers, there is any union organizing involving, or directed towards, any group of employees of the CompaniesEmployees, and consult with the Buyer concerning the CompaniesSellers’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies Employees for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussions.
Appears in 1 contract
Sources: Asset Purchase Agreement (Atlantic Broadband Management, LLC)
Continuity and Maintenance of Operations. From the date of Except as specifically ---------------------------------------- permitted or required by this Agreement until the Closingor by any Legal Requirement, unless otherwise agreed to in writing by the Buyer, with respect to the assets and properties of the Companies and the Systems (other than the Transferred Assets):
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and the Sellers shall cause the Companies Company to, continue to operate and the Systems Company shall:
A. Operate the Business in the usual, regular and ordinary course consistent with past practice and make ordinary marketingpractices, advertisingincluding without limitation, capitalits billing, promotional and other expenditures marketing practices and implement ordinary pricing and promotional strategies consistent with past practice and, to the extent consistent with such conduct and operation, use commercially reasonable efforts to (a) preserve the current any beneficial business intact in all material respects, including preserving existing relationships with franchising authoritiescustomers, suppliers, customers employees, Governmental Authorities and others having business dealings with the Companies Company relating to the Business;
B. Maintain the Assets, including the plant and the SystemsEquipment related thereto, in good operating condition (b) continue the Rebuild of the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(wnormal wear and tear excepted), (c) complete line extensions, placing conduit or cable in new developments and fulfill installation requests in the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices implement any capital expenditures required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.such maintenance;
(ii) the Companies shall continue C. Maintain all bonds and casualty and liability insurance relating to operate the Systems in material compliance with all Legal Requirements;
(iii) without limiting the generality of the foregoing, each Company shall maintain its assets and properties consistent with past practice, maintain the Real Property in substantially the same condition as exists as of the date of this Agreement, ordinary wear and tear excepted, maintain commercially reasonable Inventory levels in its ordinary course of business (which shall include sufficient quantities of amplifiers, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business), maintain insurance as in effect on the date of this Agreement and keep Agreement;
D. Keep all of its business books, records and files in relating to the ordinary course of business;
(iv) except Systems in the ordinary course of business in accordance with past practices, and pay, consistent with past practicepractices ( but in all events within 60 days), neither Company shall itselfall accounts payable and other debts, or will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable (other than for their own residences) prior liabilities and obligations relating to the Closing DateSystems;
(v) each Company shall continue E. Continue to implement its procedures for disconnection and discontinuance of service to System subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement Agreement;
F. Not sell, transfer or assign any Assets, other than the Excluded Assets or on an arms-length basis in the ordinary course of business consistent with past practice; andpractices;
(vi) G. Not permit the Companies shall make capital expenditures during amendment or cancellation of any of the period from January 1Governmental Permits, 2005 through Contracts or any other contract or agreement which materially affects or is applicable to the Systems or the Business;
H. Except as otherwise agreed by Buyer and Sellers, not enter into any contract or commitment for the acquisition of goods or services relating to the Systems or the Business, the performance of which will not be completed by the Closing Date or involving an expenditure in an aggregate amount equal excess of $5,000;
I. Not take or omit to 100% take any action that would cause Sellers to be in breach of any of its representations or warranties in this Agreement;
J. Maintain inventories of equipment, cable and supplies at normal levels consistent with past practice and good industry standards;
K. Not increase the compensation or change any benefits available to director, officer or employees of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis Company except as required pursuant to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR service.
(b) Except as described in Schedule 7.12(b), neither Company shall, existing written agreements or except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreement, or ;
L. Report and write off Accounts Receivable in accordance with the prior written consent past practices;
M. Withhold and pay when due all Taxes relating to employees of the Buyer:Business, the Assets, the Business and/or the Systems;
(i) modifyN. Not create, amend, extend, terminate, renew, suspend, abrogate assume or enter into permit to exist any Franchise, Governmental Authorization or Material Contract relating to the assets or properties of the Companies or the Systems Encumbrance (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, that the Buyer’s consent thereto will not be unreasonably withheld;
(iiPermitted Encumbrances) change the rate charged for any subscriber service or establish a rate for DVR or HDTV service;
(iii) sell, transfer or assign on any of the Companies’ assets or properties to any Affiliate or any other third party, except for Transferred Assets, other than sales, transfers or assignments those Encumbrances existing on the date hereof;
O. Maintain service quality of inventory in the ordinary course of business and of obsolete or worn-out equipment; provided that the Companies shall not sell any digital converters currently used by the Systems without the prior consent of the Buyerat a level at least consistent with past practices;
(iv) enter into any contract or commitment or incur any indebtedness or other Liability or obligation of any kind relating P. File with the FCC all reports required to the Systems;
(v) enter into any agreement be filed under applicable FCC rules and regulations, and otherwise comply with a billing service all Governmental Permits and Legal Requirements with respect to the Systems;
(vi) take Q. Not implement any action that new marketing program, policy or practice other than as described on Schedule 4.13, or implement any rate change, retiering or repackaging;
R. Not increase the channel capacity of the Systems;
S. Not make any change in its Articles of Incorporation or By-laws;
T. Not make any change in its authorized or issued capital stock, including treasury stock;
U. Not grant any option, authorize or issue any warrant, scrip or subscription right to make any call, or make any redemption or commitment of any nature with respect to its authorized or issued stock including treasury stock;
V. Provided such payments or distributions would not result in the lossfailure to comply with the other provisions of this Section 6.2, lapse not declare, set aside or abandonment of pay any Company Intellectual Property (except dividend or make any other distribution with respect to actions permitted its stock in excess of $50,000 per month;
W. Not enter into any collective bargaining, bonus, stock-option, profit- sharing, compensation, pension, welfare, retirement, employment or similar agreement except where required by Law or approved by Buyer;
X. Not lend any money or, other than with respect to Transferred Assets)draws on existing lines of credit of the Company, borrow any money;
(vii) with respect to Y. Except as otherwise agreed by Buyer and Sellers, not make or contract for any capital expenditures the Systems, engage in any marketing, subscriber installation, collection or disconnection practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b)aggregate costs of which shall exceed $10,000.00;
(viii) make Z. Not implement any capital expenditure or series of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to the date of this Agreement, would be required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date).
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided in this Agreement, neither Company shall, rate increases without the prior written consent of Buyer;
AA. Expend approximately $3,100,000 to complete the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
two-way 750MHz upgrade of the Yankton Cable TV system (dwhich consists of approximately 110 miles) The Cable Venture shall deliver in accordance with the specifications detailed in the Offering Memorandum prepared and delivered to the Buyer correct by ▇▇▇▇▇▇▇ and complete copies of (i) all rate regulation documents prepared or filed Associates; provided that at any time between the date of this Agreement and the Closing, and (ii) all non-routine correspondence, filings and submissions with or the Purchase Price will be increased to any Governmental Authority made between reflect the date of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers of the Systems as of the last day of such month, listed by the subscriber categories described in Section 4.5(a).
(e) Neither Company shall, with respect to any of its employees, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10costs of: (i) increase or decrease in any manner the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews)fiber run to ▇▇▇▇▇▇▇▇▇▇; (ii) voluntarily recognize any union as collective bargaining representative of any of its employeesequipping the new headend building between Yankton and ▇▇▇▇▇▇▇▇▇▇; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employeesreplacing drops; and (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; or (v) agree to do any wrecking-out the old distribution plant, as agreed by Buyer and Sellers.
BB. Effect and facilitate the transfer of the foregoing. The Cable Venture shall also notify Shares and the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees transition of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any operation of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Company and The Systems to Buyer of the progress of such discussionsas contemplated by this Agreement.
Appears in 1 contract
Continuity and Maintenance of Operations. From the date of this Agreement until the Closing, unless otherwise agreed to in writing by the Buyer, with respect to the assets and properties of the Companies Assets and the Systems (other than the Transferred Assets):System:
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and the Sellers shall cause the Companies to, Each Seller will continue to operate its portion of the Systems System only in the usual, regular and ordinary course consistent with past practice practices, including taking the actions described in Schedule 6.1(a), and make making ordinary marketing, advertising, capital, promotional and other expenditures and implement ordinary pricing capital and promotional strategies consistent with past practice expenditures and, to the extent consistent with such conduct and operation, use using commercially reasonable efforts to to: (ai) preserve the current business intact in all material respects, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with the Companies System; and the Systems, (b) continue the Rebuild of the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w), (cii) complete line extensions, placing conduit or cable in new developments and fulfill installation requests in the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall business. Each Seller will continue to operate its portion of the Systems System in material compliance with all Legal Requirements;
(iii) without . Without limiting the generality of the foregoing, each Company shall Seller will maintain its assets Assets in good condition and properties consistent with past practice, maintain the Real Property in substantially the same condition as exists as of the date of this Agreement, ordinary repair (subject to normal wear and tear exceptedand routine repairs), maintain commercially reasonable Inventory levels inventories in its ordinary course of business (which shall include sufficient quantities of amplifiersat not less than normal historical levels consistent with past practices, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business), will maintain insurance as in effect on the date of this Agreement and will keep all of its their business books, records and files in the ordinary course of business;
(iv) except business in the ordinary course of business consistent accordance with past practice, neither Company shall practices. No Seller will itself, or will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable Seller’s subscriber accounts receivable (other than for their own residences) prior to the Closing Date;
(v) each Company shall . Each Seller will continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement or and consistent with past practice; and
(vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR service.
(b) Except as described in Schedule 7.12(b6.1(a), neither Company shall, except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreementno Seller will, or with will permit the System to, without the prior written consent of the Buyer:
: (i) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any System Contract, Franchise, Governmental Authorization or Material Contract relating to other instrument that would be included in the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System)Assets, provided, provided that the Buyer’s consent thereto will not be unreasonably withheld;
; (ii) add or delete any program services except to the extent required under the Cable Act or any other Legal Requirement or change the rate charged for any subscriber service or establish a rate for DVR or HDTV service;
; (iii) sell, transfer or assign any of the Companies’ Assets (or items that, if they were held on the Closing Date, would be Assets) except for (A) assets or properties transferred and assigned to any Seller pursuant to Section 6.9(b), (B) assets transferred by any Seller pursuant to Section 6.19, and (C) assets sold, transferred, assigned or disposed of to a Person that is not an Affiliate or of any other third party, except for Transferred Assets, other than sales, transfers or assignments of inventory Seller in the ordinary course of business consistent with past practice and replaced by other assets of obsolete comparable utility and value, or worn-out equipmentpermit the creation of any Encumbrance, other than a Permitted Encumbrance, on any Asset; provided that the Companies shall not sell any digital converters currently used by the Systems without the prior consent of the Buyer;
(iv) enter into any contract or commitment or incur any indebtedness or other Liability liability or obligation of any kind relating to the Systems;
System except in the ordinary course of business consistent with past practices and not involving an expenditure in excess of $25,000 individually (unless either (x) such contract or commitment has a term expiring prior to Closing, or (y) any Seller discloses such contract or commitment to Buyer in writing prior to the Closing and such contract or commitment can be terminated by Buyer upon not more than thirty (30) days’ notice without liability to Buyer or the System); (v) enter into any agreement with a billing service with respect to the Systems;
System; (vi) take enter into any action programming arrangement relating to the System that would result in the loss, lapse provides for any Launch Fees; or abandonment of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(vii) with respect to the SystemsSystem, engage in any marketing, subscriber installation, collection or disconnection practices outside the ordinary course or inconsistent with past practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b);
(viii) make any capital expenditure or series campaigns not in existence as of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to the date of this Agreement. At the Closing, would be required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically Sellers will deliver to the Buyer a true, correct and complete an accurate copy of each Material Contract, Governmental Authorization or other agreement System Contract that is entered into after the date of this Agreement and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, Schedule 4.7, 4.8, 4.9, 4.10 4.11 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date)4.12.
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
(d) The Cable Venture shall Sellers will deliver to the Buyer correct and complete copies of (i) monthly financial statements and operating reports (including year-to-date results) for the operations of the System within 60 days after each month’s end and any other reports with respect to the operations of the System prepared by or for any Seller or any Affiliate of any Seller, (ii) all rate regulation documents prepared or filed at any time between the date of this Agreement and the Closing, and (iiiii) all non-routine material correspondence, filings filing and submissions with or to any Governmental Authority made between the date of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in including any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and stationsubsequent transfers). In addition, within 30 days after the last day of each calendar month, the Cable Venture shall Sellers will deliver to the Buyer a report setting forth the number of Equivalent Subscribers subscribers of the Systems System as of the last day of such month and the number of subscribers of the System whose service was disconnected during such month, in each case listed by the subscriber categories described in Section 4.5(a4.21(b) or Section 4.21(c), as applicable. All financial statements so delivered will be prepared on a basis consistent with the Financial Statements attached as Schedule 4.5.
(d) Each Seller will cause its appropriate Affiliates to be bound by and comply with the provisions of this Section 6.1 and this Agreement to the extent such Affiliates own, operate or manage any of the Assets or the System. Each Seller will cause any Affiliate which is a party to a System Contract or Governmental Authorization to assign such System Contract or Governmental Authorization to such Seller prior to the Closing Date so that such System Contract and Governmental Authorization shall be included in the Assets and conveyed to Buyer pursuant to this Agreement.
(e) Neither Company shallNo Seller will, with respect to any of its employeesEmployee, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 4.17 or Schedule 4.10: 4.18, (i) increase or decrease in any manner the compensation or fringe benefits of any employee Employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); , (ii) voluntarily recognize any union as collective bargaining representative increase the number of any of its employees; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employees; (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussions.Employees;
Appears in 1 contract
Sources: Asset Purchase Agreement
Continuity and Maintenance of Operations. From Except as Buyer may otherwise consent in writing (which consent will not be withheld unreasonably), between the date of this Agreement until Effective Date and the Closing, unless otherwise agreed to in writing by Seller will comply with the Buyer, with respect to following:
7.2.1 Seller will conduct the assets Business and properties of the Companies and the Systems (other than the Transferred Assets):
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and the Sellers shall cause the Companies to, continue to operate the Systems only in the usual, regular and ordinary course consistent with its past practice practices, and make ordinary marketing, advertising, capital, promotional and other expenditures and implement ordinary pricing and promotional strategies consistent with past practice and, to the extent consistent with such conduct and operation, will use commercially reasonable efforts to (a) preserve the current business intact in all material respectsBusiness intact, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with Seller relating to the Companies and the SystemsBusiness, (b) continue keep available the Rebuild services of its employees and agents providing services in connection with the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w)Business, and (c) complete line extensionscontinue making marketing, placing conduit or cable in new developments advertising and fulfill installation requests in promotional expenditures with respect to the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall continue to operate the Systems in material compliance with all Legal Requirements;
(iii) without limiting the generality of the foregoing, each Company shall maintain its assets and properties Business consistent with past practice, practices.
7.2.2 Seller will perform regular maintenance on the Assets to maintain the Real Property Assets in substantially the same good repair, order and condition as exists as of the date of this Agreement, (ordinary wear and tear excepted, maintain commercially reasonable Inventory levels in its ordinary course of business (which shall include sufficient quantities of amplifiers, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business), will maintain equipment and inventory at historical levels consistent with past practices, will maintain in full force and effect, policies of insurance as with respect to the Business in effect on the date of this Agreement amounts consistent with good industry practice, and keep all of will maintain its business books, records and files accounts in the usual, regular and ordinary course of business;
(iv) except in the ordinary course of business manner on a basis consistent with past practice, neither Company shall itself, or will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable (other than for their own residences) prior to the Closing Date;
(v) each Company shall continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement or consistent with past practice; and
(vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR servicepractices.
(b) Except as described in Schedule 7.12(b), neither Company shall, except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreement, or with the prior written consent of the Buyer:
(i) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Franchise, Governmental Authorization or Material Contract relating to the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, that the Buyer’s consent thereto 7.2.3 Seller will not be unreasonably withheld;
(iia) change the rate rates charged for any subscriber service programming services provided by the Systems or establish a rate for DVR add, delete, retier or HDTV service;
repackage any such programming services except to the extent required under any Legal Requirement, (iiib) sell, transfer or assign any portion of the Companies’ assets or properties to any Affiliate or any other third party, except for Transferred Assets, Assets other than sales, transfers or assignments of inventory sales in the ordinary course of business and business, or permit the creation of obsolete any Encumbrance on any Asset other than a Permitted Encumbrance or worn-out equipment; provided that any Encumbrance which will be released at or prior to the Companies shall not sell Closing, (c) modify in any digital converters currently used by the Systems without the prior consent of the Buyer;
material respect, terminate, suspend or abrogate any Governmental Permits, material Contracts or any other material agreement (ivother than those constituting Excluded Assets), or (d) enter into any contract Contract or commitment or incur any indebtedness or other Liability or obligation of any kind relating to the Systems;
(v) enter into any agreement with a billing service with respect to the Systems;
(vi) take any action that would result Systems involving an expenditure in the loss, lapse or abandonment excess of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(vii) with respect to the Systems, engage in any marketing, subscriber installation, collection or disconnection practices or offer discounts pursuant to selling or marketing campaigns$5,000, other than those described as required by the Franchises or as contemplated by this Agreement, other than contracts or commitments which are cancelable on Schedule 7.12(b);60 days' notice or less without penalty.
7.2.4 Seller will promptly notify Buyer of any fact, circumstance, event or action by it or otherwise (viiia) make any capital expenditure or series of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to known at the date of this AgreementEffective Date, would be have been required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver in or pursuant to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement or (b) the existence, occurrence or taking of which would result in any of Seller's representations and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date).
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided warranties in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
(d) The Cable Venture shall deliver to the Buyer correct Transaction Document not being true, complete and complete copies of (i) correct, if not already qualified by materiality, in all rate regulation documents prepared material respects, and if qualified by materiality, in all respects, in each case when made or filed at any time between the date of this Agreement and the Closing, and (ii) all non-routine correspondence, filings and submissions with or to any Governmental Authority made between the date of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers of the Systems as of the last day of such month, listed by the subscriber categories described in Section 4.5(a).
(e) Neither Company shall, with respect to any of its employees, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10: (i) increase or decrease in any manner the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); (ii) voluntarily recognize any union as collective bargaining representative of any of its employees; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employees; (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussions.
Appears in 1 contract
Sources: Asset Purchase Agreement (Corridor Communications Corp)
Continuity and Maintenance of Operations. From Certain ------------------------------------------------- Deliveries and Notices. Except as the other party may otherwise consent in ---------------------- writing, between the date of this Agreement until and the Closing, unless otherwise agreed to in writing by the Buyereach of TCI, with respect to the assets and properties of TCI Cable Business, the Companies TCI Systems and the Systems (other than the Transferred TCI Assets):
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and ▇▇▇▇▇, with respect to the Sellers shall cause ▇▇▇▇▇ Cable Business, the Companies to, continue to ▇▇▇▇▇ Systems and the ▇▇▇▇▇ Assets:
7.2.1 will conduct its Cable Business and operate the its Systems only in the usual, regular and ordinary course and consistent with past practice and make ordinary marketing, advertising, capital, promotional and other practices (including making capital expenditures and implement ordinary pricing and promotional strategies consistent with past practice fulfilling installation requests) and, to the extent consistent with such conduct and operation, use its commercially reasonable efforts to (a) preserve the its current business intact in all material respects, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with those Systems, unless the Companies and the Systemsother party requests otherwise, (b) continue keep available the Rebuild services of the San ▇▇▇▇ System its employees and agents providing services in accordance connection with specifications set forth on Schedule 1.1(w), its Cable Business and (c) complete line extensionscontinue making marketing, placing conduit or cable in new developments advertising and fulfill installation requests in the ordinary course of business and (d) exercise all of the Companies’ rights promotional expenditures with respect to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall continue to operate the Systems in material compliance with all Legal Requirements;
(iii) without limiting the generality of the foregoing, each Company shall maintain its assets and properties Cable Business consistent with past practicepractices;
7.2.2 will maintain its Assets in good repair, maintain the Real Property in substantially the same condition as exists as of the date of this Agreementorder and condition, ordinary wear and tear excepted; will maintain equipment and inventory for those Systems at historical levels consistent with past practices; will maintain in full force and effect, maintain commercially reasonable Inventory levels policies of insurance with respect to its Cable Business, in its ordinary course such amounts and with respect to such risks as customarily maintained by operators of business (which shall include sufficient quantities cable television systems of amplifiers, line extenders, installation materials the size and converters to operate and maintain the Systems in the ordinary course of business), maintain insurance as in effect on the date of this Agreement and keep all geographic location of its business Systems; and will maintain its books, records and files accounts with respect to its Assets and the operation of its Systems in the usual, regular and ordinary course of business;
(iv) except in the ordinary course of business manner on a basis consistent with past practice, neither Company shall itself, or practices. Neither party will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable of its subscriber accounts receivable in the Systems (other than for their own residences) prior to the Closing Date;
(v) each Company shall . Each party will continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement Agreement;
7.2.3 will not (a) modify in any material respect, terminate, suspend or consistent with past practice; and
(vi) the Companies shall make capital expenditures during the period from January 1abrogate any System Contract, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted other than retransmission consent, multiple dwelling, bulk billing or commercial service Contracts, other than in the 2005 Budget for the period from January 1, 2005 through the Previous Month End ordinary course of business (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarterother than those constituting Excluded Assets), including all capital expenditures at the head-end site required to launch HDTV-DVR service.
(b) Except as described in Schedule 7.12(bmodify, terminate, suspend or abrogate any retransmission consent, multiple dwelling, bulk billing or commercial service Contract, System Franchise, lease or document evidencing Leased Property or Real Property Interests or System License (except on terms that are not materially different or other than with respect to those constituting Excluded Assets), neither Company shall(c) take or omit to take any action that would result in the condition as set forth in SECTION 8.1.1, with respect to TCI, or SECTION 8.2.1, with respect to ▇▇▇▇▇, not to be satisfied at any time through or at the Closing; (d) engage in any marketing, subscriber installation, collection disconnection practices that are inconsistent with its past practices; (e) change the rate charged for any level of Basic Service, Expanded Basic Service, or any Pay TV or add, delete, retier or repackage any programming services except in the ordinary course of business consistent or to the extent required under the 1992 Cable Act or any other Legal Requirement; provided however if rates are changed, the party changing the rates will provide the other with past practicecopies of any FCC forms (even if not filed with any Governmental Authority) that such party used to determine that the new rates were allowable, as contemplated by the 2005 Budget(f) make any Cost of Service Election, as contemplated by this Agreement, or with the prior written consent of the Buyer:
(ig) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Franchiseagreement with or commitment to any competitive access providers with respect to any System, Governmental Authorization or Material Contract relating to the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, that the Buyer’s consent thereto will not be unreasonably withheld;
(ii) change the rate charged for any subscriber service or establish a rate for DVR or HDTV service;
(iiih) sell, transfer or assign any portion of the Companies’ assets or properties to any Affiliate or any other third party, except for Transferred Assets, Assets other than sales, transfers or assignments of inventory sales in the ordinary course of business and or permit the creation of obsolete a Lien on any Asset, other than a Permitted Lien or wornany Lien which will be released at or prior to Closing, (i) take any actions that would cause the transactions contemplated hereby to fail to qualify as a like-out equipment; provided that the Companies shall not sell any digital converters currently used by the Systems without the prior consent kind exchange under Section 1031 of the Buyer;
Code, (ivj) engage in any hiring or employee compensation practices that are inconsistent with past practices except for changes in such practices implemented by such party and its Affiliates on a company-wide basis, or (k) enter into any contract or commitment or incur any indebtedness or other Liability liability or obligation of any kind relating to the Systemsany System involving an expenditure in excess of $25,000, other than contracts or commitments which are cancellable on 30 days' notice or less without penalty;
(v) enter into 7.2.4 will promptly deliver to the other true and complete copies of all monthly and quarterly financial statements and operating reports and any agreement with a billing service reports with respect to the Systemsoperation of the Cable Business prepared by or for such party at any time from the date of this Agreement until the Closing;
(vi) take any action that would result in the loss, lapse 7.2.5 will give or abandonment of any Company Intellectual Property (except with respect cause to actions permitted with respect to Transferred Assets);
(vii) with respect be given to the Systems, engage other as soon as reasonably possible but in any marketing, subscriber installation, collection or disconnection practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b);
(viii) make any capital expenditure or series of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken event prior to the date of this Agreementsubmission to the appropriate Governmental Authority, would be copies of all FCC Forms 1200, 1205, 1210, 1215, 1220, 1225, 1235 and 1240 or any other FCC forms required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date).
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
(d) The Cable Venture shall deliver to the Buyer correct and complete copies of (i) all rate regulation documents prepared or filed at any time between the date of this Agreement and the Closing, and (ii) all non-routine correspondence, filings and submissions with or to any Governmental Authority made under the 1992 Cable Act with respect to rates and prepared with respect to any of its Systems, and make a good faith effort to address any specific concerns raised by the other with respect to such documents;
7.2.6 will duly and timely file a valid notice of renewal under Section 626 of the Cable Act with the appropriate Governmental Authority with respect to any System Franchise that will expire within 36 months after any date between the date of this Agreement and the Closing within two Date; and
7.2.7 will promptly notify the other of any fact, circumstance, event or action by it or otherwise (2a) days which, if known at the date of this Agreement, would have been required to be disclosed by it in or pursuant to this Agreement or (b) the filingexistence, submission occurrence or receipt thereof. The Cable Venture shall deliver to taking of which would result in the Buyer, condition as soon as practicable and set forth in any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers of the Systems as of the last day of such month, listed by the subscriber categories described in Section 4.5(a).
(e) Neither Company shallSECTION 8.1.1, with respect to any of its employees, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10: (i) increase or decrease in any manner the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); (ii) voluntarily recognize any union as collective bargaining representative of any of its employees; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employees; (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involvingTCI, or directed towardsSECTION 8.2.1, any group of employees of with respect to ▇▇▇▇▇, not to be satisfied, and, with respect to clause (b), use its commercially reasonable efforts to remedy the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussionssame.
Appears in 1 contract
Continuity and Maintenance of Operations. From Financial --------------------------------------------------- Statements. Except as Buyer may otherwise consent in writing, between the date ---------- of this Agreement until and the Closing, unless otherwise agreed to in writing by :
7.2.1 Seller will conduct the Buyer, with respect to the assets Business and properties of the Companies and the Systems (other than the Transferred Assets):
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and the Sellers shall cause the Companies to, continue to operate the Systems only in the usual, regular and ordinary course consistent with past practice and make ordinary marketing, advertising, capital, promotional and other practices (including making budgeted capital expenditures and implement ordinary pricing fulfilling installation requests) and promotional strategies consistent with past practice and, to the extent consistent with such conduct and operation, will use commercially reasonable efforts to (a) preserve the its current business intact in all material respectsintact, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with Seller relating to the Companies and the SystemsBusiness unless Buyer requests otherwise, (b) continue keep available the Rebuild services of its employees and agents providing services in connection with the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w), Business and (c) complete line extensionscontinue making marketing, placing conduit or cable in new developments advertising and fulfill installation requests in promotional expenditures with respect to the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall continue to operate the Systems in material compliance with all Legal Requirements;
(iii) without limiting the generality of the foregoing, each Company shall maintain its assets and properties Business consistent with past practice, practices.
7.2.2 Seller will maintain the Real Property Assets in substantially the same good repair, order and condition as exists as of the date of this Agreement, (ordinary wear and tear excepted), will maintain commercially reasonable Inventory equipment and inventory at historical levels consistent with past practices, will maintain in its ordinary course full force and effect, policies of business (which shall include sufficient quantities insurance with respect to the Business in such amounts and with respect to such risks as customarily maintained by operators of amplifiers, line extenders, installation materials cable television systems of the size and converters to operate and maintain geographic location as the Systems in the ordinary course of business), and will maintain insurance as in effect on the date of this Agreement and keep all of its business books, records and files accounts in the usual, regular and ordinary course of business;
(iv) except in the ordinary course of business manner on a basis consistent with past practice, neither Company shall practices. Seller will not itself, or and will not permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable of Seller's subscriber accounts receivable (other than for their own residences) prior to the Closing Date;
(v) each Company shall . Seller will continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement or consistent with past practice; and
(vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR serviceAgreement.
(b) 7.2.3 Except as described specified in Schedule 7.12(b)Section 7.2.5, neither Company shall, except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreement, or with without the prior written consent approval of the Buyer:
(i) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Franchise, Governmental Authorization or Material Contract relating to the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, that the Buyer’s consent thereto Seller will not be unreasonably withheld;
(iia) change the rate charged for Basic Service, Expanded Basic Service or Pay TV or add, delete, retier or repackage any subscriber service programming services except to the extent required under the 1992 Cable Act or establish a rate for DVR or HDTV service;
any other Legal Requirement, provided however if Seller changes such rates in order to so comply, Seller will provide Buyer with copies of any FCC forms (iiieven if not filed with any Governmental Authority) that Seller used to determine that the new rates were allowable, (b) make any Cost of Service Election with respect to any of the Systems, (c) sell, transfer or assign any portion of the Companies’ assets or properties to any Affiliate or any other third party, except for Transferred Assets, Assets other than sales, transfers or assignments of inventory sales in the ordinary course of business and or permit the creation of obsolete any Encumbrance on any Asset other than a Permitted Encumbrance or worn-out equipment; provided that the Companies shall not sell any digital converters currently used by the Systems without the Encumbrance which will be released at or prior consent of the Buyer;
to Closing, (ivd) modify in any material respect, terminate, suspend or abrogate any Governmental Permits, Seller Contracts or any other contract or agreement (other than those constituting Excluded Assets), (e) enter into any contract or commitment or incur any indebtedness or other Liability liability or obligation of any kind relating to any System or the Systems;
Business involving an expenditure in excess of $25,000, other than contracts or commitments which are cancellable on 30 days' notice or less without penalty, (vf) enter into any agreement with a billing service with respect take or omit to the Systems;
(vi) take any action that would result in any of its representations or warranties in this Agreement or in any Transaction Document not being true and correct when made or as of the lossClosing, lapse or abandonment of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(viig) with respect to the Systems, engage in any marketing, subscriber installationinstallation or collection practices that are inconsistent with past practices, collection or disconnection practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b);
(viiih) make any capital expenditure or series of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to the date of this Agreement, would be required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date).
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement agreement with or commitment to any Retained Programming Agreementcompetitive access providers with respect to the Systems.
(d) The Cable Venture shall 7.2.4 Seller promptly will deliver to the Buyer correct true and complete copies of (i) all rate regulation documents monthly and quarterly financial statements and operating reports and any reports with respect to the operations of the Business prepared by or filed for Seller at any time between the date of this Agreement and the ClosingClosing Date. All financial statements so delivered will be prepared in accordance with GAAP on a basis consistent with the Financial Statements.
7.2.5 Seller will give or cause to be given to Buyer as soon as reasonably possible but in any event no later than 5 Business Days prior to the date of submission to the appropriate Governmental Authority, copies of all Rate Regulation Documents prepared with respect to any of the Systems, and (ii) all non-routine correspondenceSeller will make a good faith effort to address any specific concerns raised by Buyer with respect to such documents. Seller will cause its "Operator Selected Rate for Projected Period" as shown on line 110 of the FCC Form 1240 to go into effect in the System on February 1, filings 1997.
7.2.6 Seller will duly and submissions timely file a valid notice of renewal under Section 626 of the Cable Communications Policy Act of 1984 with or to any the appropriate Governmental Authority made with respect to all cable television franchises of the Business that will expire within 36 months after any date between the date of this Agreement and the Closing within two Date.
7.2.7 Seller will promptly notify Buyer of any fact, circumstance, event or action by it or otherwise (2a) days which, if known at the date of this Agreement, would have been required to be disclosed in or pursuant to this Agreement or (b) the filingexistence, submission occurrence or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and taking of which would result in any event of Seller's representations and warranties in this Agreement or any Transaction Document not later than being true, complete and correct when made or at the delivery of the Estimated Adjustment CertificateClosing, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers of the Systems as of the last day of such month, listed by the subscriber categories described in Section 4.5(a).
(e) Neither Company shalland, with respect to any of clause (b) use its employees, except as required best efforts to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10: (i) increase or decrease in any manner remedy the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); (ii) voluntarily recognize any union as collective bargaining representative of any of its employees; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employees; (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussionssame.
Appears in 1 contract
Sources: Asset Purchase Agreement (Jones Cable Income Fund 1-a LTD)
Continuity and Maintenance of Operations. From Except as disclosed in SCHEDULE 7.2 and except for the Peak Systems located in and around Rogers, Arkansas and Peco▇▇, ▇▇lahoma which are managed by TCA Cable TV, Inc., or as Cox may otherwise agree in writing, during the period from the date of this Agreement until the Closing, unless otherwise agreed to in writing by the Buyer, with respect to the assets and properties :
7.2.1. Each of the Companies and the Systems (other than the Transferred Assets):
(a) Except as described in Schedule 7.12(a):
(i) the Companies AT&T Cable Subsidiaries shall, and the Sellers shall cause each of the Companies Consolidated Entities and Non-Consolidated Entities to, continue to operate the Systems owned by it in the usual, regular and ordinary course consistent with past practice and practices (including taking budgeted or planned rate increases, continuing to make ordinary budgeted marketing, advertising, capital, promotional and other expenditures and implement ordinary pricing advertising and promotional strategies consistent expenditures with past practice and, respect to the extent consistent with such conduct Systems and operation, use commercially reasonable efforts to (a) preserve the current business intact in all material respects, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with the Companies and the Systems, (b) continue the Rebuild of the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w), (c) complete completing line extensions, placing conduit or cable in new developments and fulfill developments, fulfilling installation requests in and continuing work on existing construction projects) and to use its commercially reasonable efforts to keep available the ordinary course services of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required its employees employed in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall continue to operate the Systems in material compliance and to preserve any beneficial business relationships with all Legal Requirements;
(iii) without franchising authorities, customers, suppliers and others having business dealings with it relating to the Systems. Without limiting the generality of the foregoing, each Company AT&T Cable Subsidiary shall, and shall maintain its assets cause each of the Consolidated Entities and properties consistent with past practiceNon-Consolidated Entities to, (i) maintain the Real Property in substantially the same condition as exists as Assets of the date of this Agreement, ordinary wear and tear excepted, maintain commercially reasonable Inventory levels in its ordinary course of business (which shall include sufficient quantities of amplifiers, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business)reasonable operating condition and repair, (ii) maintain insurance with respect to the Assets and the Systems as in effect on the date of this Agreement Agreement, (iii) maintain inventories of equipment and keep supplies at levels substantially consistent with the level of inventory maintained at each System during the 12 months preceding the date hereof, as adjusted in connection with any construction upgrade in progress at such System, (iv) maintain all of its business books, records and files related to the Systems in the ordinary course of business;
business in accordance with past practices and (ivv) except pay, in the ordinary course of business consistent with past practicepractices, neither Company all accounts payable of the Systems. Each AT&T Cable Subsidiary shall not itself, or will and shall not permit any of its officers, managers, directors, shareholders, agents or employees or Affiliates to, and shall cause each of the Consolidated Entities and Non-Consolidated Entities not to and not to permit any of their officers, directors, members, partners, agents or employees or Affiliates to, pay or forgive any Subscriber Accounts Receivable of its customer accounts receivable related to the Systems (other than for their own residences) prior to the Closing Date;
(v) . Each AT&T Cable Subsidiary shall, and shall cause each Company shall of the Consolidated Entities and Non-Consolidated Entities to, continue to implement its procedures for disconnection and discontinuance of service to subscribers customers of the Systems whose accounts are delinquent in accordance with those in effect on the date of this Agreement or consistent with past practice; and
(vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR service.
(b) Except as described in Schedule 7.12(b), neither Company shall, except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreement, or with the prior written consent of the Buyer:
(i) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Franchise, Governmental Authorization or Material Contract relating to the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, that the Buyer’s consent thereto will not be unreasonably withheld;
(ii) change the rate charged for any subscriber service or establish a rate for DVR or HDTV service;
(iii) sell, transfer or assign any of the Companies’ assets or properties to any Affiliate or any other third party, except for Transferred Assets, other than sales, transfers or assignments of inventory in the ordinary course of business and of obsolete or worn-out equipment; provided that the Companies shall not sell any digital converters currently used by the Systems without the prior consent of the Buyer;
(iv) enter into any contract or commitment or incur any indebtedness or other Liability or obligation of any kind relating to the Systems;
(v) enter into any agreement with a billing service with respect to the Systems;
(vi) take any action that would result in the loss, lapse or abandonment of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(vii) with respect to the Systems, engage in any marketing, subscriber installation, collection or disconnection practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b);
(viii) make any capital expenditure or series of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to the date of this Agreement, would be required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement and that, if it were procedures in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior .
7.2.2. Except to the Closing Date).
extent required by law (cof which the AT&T Cable Subsidiaries shall give notice to Cox) Notwithstanding anything in Section 7.12(b) to after the contrary, except as otherwise provided in date of this Agreement, neither Company shalleach AT&T Cable Subsidiary shall not, and shall cause each of the Consolidated Entities and Non-Consolidated Entities not to, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate Cox (which will not be unreasonably withheld or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
(d) The Cable Venture shall deliver to the Buyer correct and complete copies of delayed): (i) all change customer rates of any of the Systems (other than budgeted or planned rate regulation documents prepared increases taken pursuant to Section 7.2.1) for any tier of service or filed at charges for remotes or installation except to the extent required under the Cable Act or any time between other Legal Requirement; provided, however, that if it changes such rates in order to so comply, it will provide Cox with copies of any FCC forms used to determine the date of this Agreement and the Closing, and new rates; (ii) all non-routine correspondencemake channel additions (other than channel additions associated with initial upgraded plant activation made in conjunction with budgeted or planned rate increases permitted by clause (i) above), filings and submissions with channel substitutions, change the channel lineups or to implement any Governmental Authority made between the date retiering or repackaging of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided programming offered by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers any of the Systems other than as required by "Headend in the Sky"; (iii) make any Cost of Service Election or filing based on the "effective competition" provisions of the last day of such month, listed by the subscriber categories described in Section 4.5(a).
(e) Neither Company shall, Cable Act with respect to any of its employeesthe Systems or change billing, except as required to comply with applicable law collection, installation, disconnection, marketing or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10: (i) increase or decrease in any manner the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); (ii) voluntarily recognize any union as collective bargaining representative of any of its employees; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employeespromotional practices; (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; sell, transfer, lease, assign or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussions.otherwise
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Cox Communications Inc /De/)
Continuity and Maintenance of Operations. From the date of this Agreement Except as disclosed in Schedule 7.2 A (Insight) and 7.2 B (Cox), or as Transferee may otherwise agree in writing, until the Closing, unless otherwise agreed to in writing by the Buyer, with respect to the assets and properties of the Companies and the Systems (other than the Transferred Assets)::
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and the Sellers shall cause the Companies to, 7.2.1. Transferor will continue to operate the Systems System in the usual, regular and ordinary course consistent with past practice and make ordinary marketing, advertising, capital, promotional and other expenditures and implement ordinary pricing and promotional strategies consistent with past practice and, to the extent consistent with such conduct and operation, use commercially reasonable efforts to practices (a) preserve the current business intact in all material respects, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with the Companies and the Systems, (b) continue the Rebuild of the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w), (c) complete completing line extensions, placing conduit or cable in new developments and fulfill fulfilling installation requests in requests) and will use its commercially reasonable efforts to keep available the ordinary course services of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required its employees employed in connection with extensions or renewals); providedthe System and to preserve any beneficial business relationships with customers, however, suppliers and others having business dealings with Transferor relating to the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall continue to operate the Systems in material compliance with all Legal Requirements;
(iii) without System. Without limiting the generality of the foregoing, each Company shall Transferor will maintain its assets (i) the Assets in reasonable operating condition and properties consistent with past practicerepair, maintain the Real Property in substantially the same condition as exists as of the date of this Agreement, ordinary wear (ii) bonds and tear excepted, maintain commercially reasonable Inventory levels in its ordinary course of business (which shall include sufficient quantities of amplifiers, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business), maintain insurance as in effect on the date of this Agreement Agreement, (iii) inventories of equipment and keep supplies at levels consistent with prior practice, and (iv) all of its business books, records and files in the ordinary course of business;
(iv) except business in the ordinary course of business consistent accordance with past practice, neither Company shall practices. Transferor will not itself, or and will not permit any of its officers, managers, directors, shareholders, members, partners, agents or employees or Affiliates to, pay or forgive any Subscriber of Transferor's customer Accounts Receivable (other than for their own residences) prior to the Closing Date;
(v) each Company shall . Transferor will continue to implement its procedures for disconnection and discontinuance of service to subscribers customers whose accounts are delinquent in accordance with those procedures in effect on the date of this Agreement or consistent with past practice; andAgreement.
(vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis 7.2.2. Except to the three months in extent required by law (of which Transferor shall give notice to Transferee) after the quarter)date of this Agreement, including all capital expenditures at Transferor will not, without the head-end site required to launch HDTV-DVR service.
prior written consent of Transferee (bwhich will not be unreasonably withheld or delayed): (i) Except as change customer rates other than scheduled rate increases described in Schedule 7.12(b)7.2 A or 7.2 B, neither Company shallas appropriate, for any tier of service or charges for remotes or installation, make channel additions, channel substitutions, change the channel lineups or implement any retiering or repackaging of cable television programming offered by the Transferor's System, or change billing, collection, installation, disconnection, marketing or promotional practices; (ii) sell, transfer, lease, assign or otherwise dispose of any of the Assets (except for assets consumed in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreement, or in conjunction with the prior written consent acquisition of replacement property of equivalent kind and value); (iii) create, assume or permit to exist any Encumbrance on any Asset, except for Permitted Encumbrances; (iv) amend or terminate or permit cancellation of any of the Buyer:
(i) modifyGovernmental Permits, amend, extend, terminate, renew, suspend, abrogate Contracts or enter into any Franchise, Governmental Authorization other material contract or Material Contract relating to the assets or properties of the Companies or the Systems agreement (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, that the Buyer’s consent thereto will not be unreasonably withheld;
(ii) change the rate charged for any subscriber service or establish a rate for DVR or HDTV service;
(iii) sell, transfer or assign any of the Companies’ assets or properties to any Affiliate or any other third party, except for Transferred Assets, those constituting Excluded Assets and other than sales, transfers or assignments of inventory in the ordinary course of business and of obsolete business) which affects or worn-out equipmentis related to the System; provided that the Companies shall not sell any digital converters currently used by the Systems without the prior consent of the Buyer;
(ivv) enter into any contract or commitment or incur any indebtedness or other Liability liability or obligation of any kind relating to the Systems;
(v) enter into any agreement with a billing service with respect to the Systems;
System which will be an Assumed Liability of Transferee involving an expenditure in excess of $30,000; (vi) engage in any selling or marketing campaigns or promotional activities not in the ordinary course of business, consistent with past practice; (vii) take or omit to take any commercially reasonable action that would result cause Transferor to be in the loss, lapse or abandonment breach of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(vii) with respect to the Systems, engage of its representations or warranties in any marketing, subscriber installation, collection this Agreement; or disconnection practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b);
(viii) other than in the ordinary course of business and consistent with prior practice make any capital expenditure material increase in compensation payable or series of capital expenditures that would require payment to become payable to Transferor's employees employed at the System or make any material change in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to the date of this Agreement, would be required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date)personnel policies.
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided in this Agreement, neither Company shall7.2.3. Transferor shall not, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate Transferee (which shall not be unreasonably withheld or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
(d) The Cable Venture shall deliver to the Buyer correct and complete copies of (i) all rate regulation documents prepared or filed at any time between the date of this Agreement and the Closing, and (ii) all non-routine correspondence, filings and submissions with or to any Governmental Authority made between the date of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers of the Systems as of the last day of such month, listed by the subscriber categories described in Section 4.5(a).
(e) Neither Company shall, with respect to any of its employees, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10: (i) increase or decrease in any manner the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); (ii) voluntarily recognize any union as collective bargaining representative of any of its employees; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employees; (ivdelayed) enter into any government new contract giving rise to affirmative action obligations or amendment or renewal of any existing contract with any broadcaster concerning retransmission consents relating to any of its employees; or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussionsSystem.
Appears in 1 contract
Sources: Asset Exchange Agreement (Insight Communications Co Inc)
Continuity and Maintenance of Operations. From Certain Deliveries and ---------------------------------------------------------------- Notices. Between the date of this Agreement until and the Closing, unless otherwise agreed AT&T Illinois with ------- respect to in writing by AT&T's Cable Business, the Buyer, AT&T Systems and the AT&T Assets and Insight with respect to Insight's Cable Business, the assets and properties of the Companies Insight Systems and the Systems (other than the Transferred Insight Assets)::
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, will conduct its Cable Business and the Sellers shall cause the Companies to, continue to operate the its Systems only in the usual, regular and ordinary course and consistent with past practice and practices, including continuing to make ordinary marketing, advertising, capital, promotional and other expenditures and implement ordinary pricing advertising and promotional strategies consistent with past practice expenditures, and, to the extent consistent with such conduct and operation, will use its commercially reasonable efforts to (ai) preserve the its current business intact in all material respects, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with the Companies and the its Systems, and (ii) keep available the services of its employees and agents providing services in connection with the Cable Business but will be under no obligation to incur cost to do so (other than employee salaries and similar costs);
(b) continue the Rebuild of the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w), (c) complete line extensions, placing conduit or cable in new developments and fulfill installation requests in the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall continue to operate the Systems in material compliance with all Legal Requirements;
(iii) without limiting the generality of the foregoing, each Company shall will maintain its assets Assets in good repair, order and properties consistent with past practice, maintain the Real Property in substantially the same condition as exists as of the date of this Agreementcondition, ordinary wear and tear excepted, ; will maintain commercially reasonable Inventory equipment and inventory for its Systems at not less than normal historical levels consistent with past practices; will maintain in full force and effect policies of insurance with respect to its ordinary course of business (which shall include sufficient quantities of amplifiers, line extenders, installation materials Cable Business consistent with past practices; and converters to operate and will maintain the Systems in the ordinary course of business), maintain insurance as in effect on the date of this Agreement and keep all of its business books, records and files accounts with respect to its Assets and the operation of its Systems in the usual, regular and ordinary course of businessmanner on a basis consistent with past practices;
(ivc) except in the ordinary course of business consistent with past practicerespect to Excluded Assets, neither Company shall itself, or will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable (other than for their own residences) prior to the Closing Date;
(v) each Company shall continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement or consistent with past practice; and
(vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR service.
(b) Except as described in Schedule 7.12(b), neither Company shall, except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreement, or with the prior written consent of the Buyer:
not (i) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Franchise, Governmental Authorization System Contract or Material Contract relating to the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, instrument that the Buyer’s consent thereto will not would be unreasonably withheld;
(ii) change the rate charged for any subscriber service or establish a rate for DVR or HDTV service;
(iii) sell, transfer or assign any of the Companies’ assets or properties to any Affiliate or any other third included in such party, except for Transferred 's Assets, other than sales, transfers or assignments of inventory in the ordinary course of business and of obsolete or worn-out equipment; provided that the Companies shall other party's consent, not sell any digital converters currently used by the Systems without the prior consent of the Buyer;
(iv) enter into any contract to be unreasonably withheld or commitment or incur any indebtedness or other Liability or obligation of any kind relating to the Systems;
(v) enter into any agreement with a billing service with respect to the Systems;
(vi) take any action that would result in the lossdelayed, lapse or abandonment of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(vii) with respect to the Systems, engage in any marketing, subscriber installation, collection or disconnection practices or offer discounts pursuant to selling or marketing campaigns, other than those described on Schedule 7.12(b);
(viii) make any capital expenditure or series of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to the date of this Agreement, would will be required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date).
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement retransmission consent or programming agreement, any System Franchise, any lease or document evidencing Leased Property or any Retained Programming Agreement.other agreement that contemplates payments to or by the transferring party in any 12-month period exceeding $25,000 individually or $150,000 in the aggregate; (ii) take or omit to take any action that would result in the condition set forth in Section 8.1(a) with respect to AT&T Illinois or Section 8.2(a) with respect to Insight not being satisfied at any time prior to the Closing; (iii) engage in any marketing, subscriber installation, disconnection or collection practices other than in the ordinary course of business consistent with its past practices; (iv) make any Cost of Service Election; (v) enter into any agreement with or commitment to any competitive access providers with respect to any System; (vi) sell, transfer or assign any portion of its Assets other than sales in the ordinary course of business and assets sold or disposed of and replaced by other assets of comparable utility and value or permit the creation of a Lien, other than a Permitted Lien, on any Asset; (vii) engage in any hiring or employee compensation practices (including severance plans or policies) that are inconsistent with past practices except for changes in such practices implemented by such party and its Affiliates on a company-wide basis (and it being agreed that such party will give prompt notice to the other party of any such changes); or (viii) take any actions that would cause the transactions contemplated hereby to fail to qualify as like-kind exchanges under Section 1031 of the Code;
(d) The Cable Venture shall will promptly deliver to the Buyer correct other true and complete copies of (i) all rate regulation documents quarterly financial statements and all monthly and quarterly operating reports with respect to the operation of the Cable Business prepared in the ordinary course of business by or filed for such party at any time between from the date of this Agreement and until the Closing;
(e) will give or cause to be given to the other and its counsel, accountants and (ii) other representatives, as soon as reasonably possible but in any event prior to the date of submission to the appropriate Governmental Authority, copies of all non-routine correspondenceFCC Forms 1200, filings 1205, 1210, 1215, 1220, 1225, 1235 and submissions 1240 or any other FCC forms required to be filed with or to any Governmental Authority made under the 1992 Cable Act with respect to rates and prepared with respect to any of its Systems, such forms to be reasonably satisfactory in form and substance to the other;
(f) will duly and timely file a valid notice of renewal under Section 626 of the Cable Act with the appropriate Governmental Authority with respect to any System Franchise that will expire within 36 months after any date between the date of this Agreement and the Closing within two Date;
(2g) days will promptly notify the other of any fact, circumstance, event or action by it or otherwise (i) which if known at the filingdate of this Agreement would have been required to be disclosed by it in or pursuant to this Agreement or (ii) the existence, submission occurrence or receipt thereof. The Cable Venture shall deliver taking of which would result in the condition set forth in Section 8.1(a) with respect to AT&T Illinois or Section 8.2(a) with respect to Insight not being satisfied at any time prior to the BuyerClosing, as soon as practicable and in any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers of the Systems as of the last day of such month, listed by the subscriber categories described in Section 4.5(a).
(e) Neither Company shalland, with respect to any of its employees, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10: (i) increase or decrease in any manner the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); clause (ii), will use its commercially reasonable efforts to remedy the same, subject to Section 12.16; and
(h) voluntarily recognize will consult the other prior to decreasing or increasing the rate charged for any union as collective bargaining representative level of Basic Services, Expanded Basic Services or Pay TV and prior to adding, deleting, retiering or repackaging any of its employeesprogramming services; (iii) enter into a collective bargaining agreement governing provided that the terms or condition of employment of other's consent is not required for any of its employees; (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussionsaction.
Appears in 1 contract
Sources: Asset Exchange Agreement (Insight Communications Co Inc)
Continuity and Maintenance of Operations. From Except as Buyer may otherwise consent in writing (which consent will not be withheld unreasonably), between the date of this Agreement until Effective Date and the Closing, unless otherwise agreed to in writing by Seller will comply with the Buyer, with respect to following: Seller will conduct the assets Business and properties of the Companies and the Systems (other than the Transferred Assets):
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and the Sellers shall cause the Companies to, continue to operate the Systems only in the usual, regular and ordinary course consistent with its past practice practices, and make ordinary marketing, advertising, capital, promotional and other expenditures and implement ordinary pricing and promotional strategies consistent with past practice and, to the extent consistent with such conduct and operation, will use commercially reasonable efforts to (a) preserve the current business intact in all material respectsBusiness intact, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with Seller relating to the Companies and the SystemsBusiness, (b) continue keep available the Rebuild services of its employees and agents providing services in connection with the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w)Business, and (c) complete line extensionscontinue making marketing, placing conduit or cable in new developments advertising and fulfill installation requests in promotional expenditures with respect to the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall continue to operate the Systems in material compliance with all Legal Requirements;
(iii) without limiting the generality of the foregoing, each Company shall maintain its assets and properties Business consistent with past practice, practices. Seller will perform regular maintenance on the Assets to maintain the Real Property Assets in substantially the same good repair, order and condition as exists as of the date of this Agreement, (ordinary wear and tear excepted, maintain commercially reasonable Inventory levels in its ordinary course of business (which shall include sufficient quantities of amplifiers, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business), will maintain equipment and inventory at historical levels consistent with past practices, will maintain in full force and effect, policies of insurance as with respect to the Business in effect on the date of this Agreement amounts consistent with good industry practice, and keep all of will maintain its business books, records and files accounts in the usual, regular and ordinary course of business;
(iv) except in the ordinary course of business manner on a basis consistent with past practice, neither Company shall itself, or will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable (other than for their own residences) prior to the Closing Date;
(v) each Company shall continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement or consistent with past practice; and
(vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR service.
(b) Except as described in Schedule 7.12(b), neither Company shall, except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreement, or with the prior written consent of the Buyer:
(i) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Franchise, Governmental Authorization or Material Contract relating to the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, that the Buyer’s consent thereto practices. Seller will not be unreasonably withheld;
(iia) change the rate rates charged for any subscriber service programming services provided by the Systems or establish a rate for DVR add, delete, re-tier or HDTV service;
repackage any such programming services except to the extent required under any Legal Requirement, (iiib) sell, transfer or assign any portion of the Companies’ assets or properties to any Affiliate or any other third party, except for Transferred Assets, Assets other than sales, transfers or assignments of inventory sales in the ordinary course of business and business, or permit the creation of obsolete any Encumbrance on any Asset other than a Permitted Encumbrance or worn-out equipment; provided that any Encumbrance which will be released at or prior to the Companies shall not sell Closing, (c) modify in any digital converters currently used by the Systems without the prior consent of the Buyer;
material respect, terminate, suspend or abrogate any Governmental Permits, material Contracts or any other material agreement (ivother than those constituting Excluded Assets), or (d) enter into any contract Contract or commitment or incur any indebtedness or other Liability or obligation of any kind relating to the Systems;
(v) enter into any agreement with a billing service with respect to the Systems;
(vi) take any action that would result Systems involving an expenditure in the loss, lapse or abandonment excess of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(vii) with respect to the Systems, engage in any marketing, subscriber installation, collection or disconnection practices or offer discounts pursuant to selling or marketing campaigns$5,000, other than those described as required by the Franchises or as contemplated by this Agreement, other than contracts or commitments which are cancelable on Schedule 7.12(b);
60 days' notice or less without penalty. Seller will promptly notify Buyer of any fact, circumstance, event or action by it or otherwise (viiia) make any capital expenditure or series of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to known at the date of this AgreementEffective Date, would be have been required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver in or pursuant to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement or (b) the existence, occurrence or taking of which would result in any of Seller's representations and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date).
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided warranties in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
(d) The Cable Venture shall deliver to the Buyer correct Transaction Document not being true, complete and complete copies of (i) correct, if not already qualified by materiality, in all rate regulation documents prepared material respects, and if qualified by materiality, in all respects, in each case when made or filed at any time between the date of this Agreement and the Closing, and (ii) all non-routine correspondence, filings and submissions with or to any Governmental Authority made between the date of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers of the Systems as of the last day of such month, listed by the subscriber categories described in Section 4.5(a).
(e) Neither Company shall, with respect to any of its employees, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10: (i) increase or decrease in any manner the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); (ii) voluntarily recognize any union as collective bargaining representative of any of its employees; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employees; (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussions.
Appears in 1 contract
Sources: Asset Purchase Agreement (Telecommunication Products Inc)
Continuity and Maintenance of Operations. From Except as Buyer may otherwise consent in writing (which consent will not be withheld unreasonably), between the date of this Agreement until Effective Date and the Closing, unless otherwise agreed to in writing by Seller will comply with the Buyer, with respect to following:
7.2.1 Seller will conduct the assets Business and properties of the Companies and the Systems (other than the Transferred Assets):
(a) Except as described in Schedule 7.12(a):
(i) the Companies shall, and the Sellers shall cause the Companies to, continue to operate the Systems only in the usual, regular and ordinary course consistent with its past practice practices, and make ordinary marketing, advertising, capital, promotional and other expenditures and implement ordinary pricing and promotional strategies consistent with past practice and, to the extent consistent with such conduct and operation, will use commercially reasonable efforts to (a) preserve the current business intact in all material respectsBusiness intact, including preserving existing relationships with franchising authorities, suppliers, customers and others having business dealings with Seller relating to the Companies and the SystemsBusiness, (b) continue keep available the Rebuild services of its employees and agents providing services in connection with the San ▇▇▇▇ System in accordance with specifications set forth on Schedule 1.1(w)Business, and (c) complete line extensionscontinue making marketing, placing conduit or cable in new developments advertising and fulfill installation requests in promotional expenditures with respect to the ordinary course of business and (d) exercise all of the Companies’ rights to maintain existing “must carry” and retransmission agreements (including delivery of timely notices required in connection with extensions or renewals); provided, however, the Companies shall not institute any promotions longer than six months, other than a Dish-Win-Back promotion, without the consent of the Buyer.
(ii) the Companies shall continue to operate the Systems in material compliance with all Legal Requirements;
(iii) without limiting the generality of the foregoing, each Company shall maintain its assets and properties Business consistent with past practice, practices.
7.2.2 Seller will perform regular maintenance on the Assets to maintain the Real Property Assets in substantially the same good repair, order and condition as exists as of the date of this Agreement, (ordinary wear and tear excepted, maintain commercially reasonable Inventory levels in its ordinary course of business (which shall include sufficient quantities of amplifiers, line extenders, installation materials and converters to operate and maintain the Systems in the ordinary course of business), will maintain equipment and inventory at historical levels consistent with past practices, will maintain in full force and effect, policies of insurance as with respect to the Business in effect on the date of this Agreement amounts consistent with good industry practice, and keep all of will maintain its business books, records and files accounts in the usual, regular and ordinary course of business;
(iv) except in the ordinary course of business manner on a basis consistent with past practice, neither Company shall itself, or will permit any of its officers, managers, directors, shareholders, members, partners, agents or employees to, pay or forgive any Subscriber Accounts Receivable (other than for their own residences) prior to the Closing Date;
(v) each Company shall continue to implement its procedures for disconnection and discontinuance of service to subscribers whose accounts are delinquent in accordance with those in effect on the date of this Agreement or consistent with past practice; and
(vi) the Companies shall make capital expenditures during the period from January 1, 2005 through the Closing Date in an aggregate amount equal to 100% of the amount of capital expenditures budgeted in the 2005 Budget for the period from January 1, 2005 through the Previous Month End (allocating any capital expenditures budgeted for the last quarterly period in that period on a pro rata basis to the three months in the quarter), including all capital expenditures at the head-end site required to launch HDTV-DVR servicepractices.
(b) Except as described in Schedule 7.12(b), neither Company shall, except in the ordinary course of business consistent with past practice, as contemplated by the 2005 Budget, as contemplated by this Agreement, or with the prior written consent of the Buyer:
(i) modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Franchise, Governmental Authorization or Material Contract relating to the assets or properties of the Companies or the Systems (other than Material Contracts relating principally to the Rebuild of the San ▇▇▇▇ System), provided, that the Buyer’s consent thereto 7.2.3 Seller will not be unreasonably withheld;
(iia) change the rate rates charged for any subscriber service programming services provided by the Systems or establish a rate for DVR add, delete, re-tier or HDTV service;
repackage any such programming services except to the extent required under any Legal Requirement, (iiib) sell, transfer or assign any portion of the Companies’ assets or properties to any Affiliate or any other third party, except for Transferred Assets, Assets other than sales, transfers or assignments of inventory sales in the ordinary course of business and business, or permit the creation of obsolete any Encumbrance on any Asset other than a Permitted Encumbrance or worn-out equipment; provided that any Encumbrance which will be released at or prior to the Companies shall not sell Closing, (c) modify in any digital converters currently used by the Systems without the prior consent of the Buyer;
material respect, terminate, suspend or abrogate any Governmental Permits, material Contracts or any other material agreement (ivother than those constituting Excluded Assets), or (d) enter into any contract Contract or commitment or incur any indebtedness or other Liability or obligation of any kind relating to the Systems;
(v) enter into any agreement with a billing service with respect to the Systems;
(vi) take any action that would result Systems involving an expenditure in the loss, lapse or abandonment excess of any Company Intellectual Property (except with respect to actions permitted with respect to Transferred Assets);
(vii) with respect to the Systems, engage in any marketing, subscriber installation, collection or disconnection practices or offer discounts pursuant to selling or marketing campaigns$5,000, other than those described as required by the Franchises or as contemplated by this Agreement, other than contracts or commitments which are cancelable on Schedule 7.12(b);60 days’ notice or less without penalty.
7.2.4 Seller will promptly notify Buyer of any fact, circumstance, event or action by it or otherwise (viiia) make any capital expenditure or series of capital expenditures that would require payment in whole or in part post-Closing (to the extent that such post-Closing Liability would not be included in the calculation of Closing Date Working Capital); or
(ix) take or commit to take any other action which, if taken prior to known at the date of this AgreementEffective Date, would be have been required to be disclosed on Schedule 4.3(f). The Cable Venture shall periodically deliver in or pursuant to the Buyer a true, correct and complete copy of each Material Contract, Governmental Authorization or other agreement that is entered into after the date of this Agreement or (b) the existence, occurrence or taking of which would result in any of Seller’s representations and that, if it were in effect on the date of this Agreement, would be required to be listed on Schedules 4.5, 4.6, 4.7, 4.8, 4.9, 4.10 or 4.17 (and shall deliver all such copies not less than two (2) days prior to the Closing Date).
(c) Notwithstanding anything in Section 7.12(b) to the contrary, except as otherwise provided warranties in this Agreement, neither Company shall, without the prior written consent of the Buyer, modify, amend, extend, terminate, renew, suspend, abrogate or enter into any Pole Attachment Agreement or any Retained Programming Agreement.
(d) The Cable Venture shall deliver to the Buyer correct Transaction Document not being true, complete and complete copies of (i) correct, if not already qualified by materiality, in all rate regulation documents prepared material respects, and if qualified by materiality, in all respects, in each case when made or filed at any time between the date of this Agreement and the Closing, and (ii) all non-routine correspondence, filings and submissions with or to any Governmental Authority made between the date of this Agreement and the Closing within two (2) days of the filing, submission or receipt thereof. The Cable Venture shall deliver to the Buyer, as soon as practicable and in any event not later than the delivery of the Estimated Adjustment Certificate, the rate card as of the Calculation Date, describing the services available from the Systems, and the rates charged by the Companies therefor, including all rates, tariffs, and other charges for cable television or other services provided by the Systems, and the line up of the stations and signals carried by the Systems and the channel position of each such signal and station. In addition, within 30 days after the last day of each calendar month, the Cable Venture shall deliver to the Buyer a report setting forth the number of Equivalent Subscribers of the Systems as of the last day of such month, listed by the subscriber categories described in Section 4.5(a).
(e) Neither Company shall, with respect to any of its employees, except as required to comply with applicable law or as required to comply with existing contracts or plans that are disclosed on Schedule 4.9 or Schedule 4.10: (i) increase or decrease in any manner the compensation or fringe benefits of any employee (except for increases in the ordinary course of business consistent with past practice in connection with normal salary reviews); (ii) voluntarily recognize any union as collective bargaining representative of any of its employees; (iii) enter into a collective bargaining agreement governing the terms or condition of employment of any of its employees; (iv) enter into any government contract giving rise to affirmative action obligations relating to any of its employees; or (v) agree to do any of the foregoing. The Cable Venture shall also notify the Buyer if, to the Companies’ Knowledge, there is any union organizing involving, or directed towards, any group of employees of the Companies, and consult with the Buyer concerning the Companies’ response to such organizing, and permit the Buyer to attend any collective bargaining discussions that may occur with any union representing any of the employees of the Companies for collective bargaining purposes or, at the Buyer’s option, notify the Buyer of the progress of such discussions.
Appears in 1 contract