Operation Pending Closing. During the period from the date hereof to Closing: a. Seller shall: (i) Conduct the Business according to the ordinary and usual course and use Seller's best efforts to maintain and preserve the organization of the Business, its employees and relationships with suppliers, customers and others; and (ii) Inform Buyer in writing from time to time of the development of any material matters relating to the Business, including, without limitation, any adverse changes in the results of operation or financial position of the Business or any litigation, proceeding or government investigation instituted or threatened against Seller relating to the Business or the occurrence of any factor that might give rise to any litigation, proceeding or investigation as aforesaid. b. Seller shall not, without the prior written consent of Buyer: (i) Mortgage, pledge or subject any of the Assets to liens, security interests or other obligations or encumbrance; (ii) Sell or otherwise transfer any of the Assets other than the sale of inventory in the ordinary course; (iii) Enter into any contract or agreement relating to the Business not in the usual ordinary course or terminate or make any material change in any contracts or agreements relating to the Business; or (iv) Increase or agree to increase in any manner the compensation of any of the employees of the Business or commit the Business to any pension, retirement or profit sharing plan or agreement or employment agreement with or for the benefit of any employee or other person. c. Seller shall afford to Buyer and its counsel, auditors, and authorized representatives full access to all personnel, properties, records and documents of the Business and shall furnish such financial and other information with respect to the Business, its personnel and property as Buyer may reasonably require, except that such access shall not be disruptive to Seller's normal Business operation. d. Except as otherwise provided in this Agreement, all revenues, profits, losses and liabilities resulting from the ownership or operation of the Business and the Assets before Closing shall accrue to and be the responsibility of Seller. All revenues, profit, losses and liabilities resulting from the ownership or operation of the Assets after Closing shall accrue to and be the responsibility of Buyer. Seller shall keep the Assets adequately insured against fire and casualty until Closing. Buyer shall show continuing evidence that the Assets are adequately insured against fire and casualty after Closing until all obligations to Seller have been satisfied. Prior to Closing, all risk of loss shall be borne by Seller; after Closing, all risk of loss shall be borne by Buyer. e. Seller will cause all property owned or leased by it to be insured against all ordinary and insurable risks and will operate, maintain and repair all its property in a careful, prudent and efficient manner. f. Each party to this Agreement hereby covenants and agrees to furnish all information and to make all filings required by any statute or governmental regulation.
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Operation Pending Closing. During the period from the date hereof of this Agreement to Closing:
a. 15.1 Except as contemplated by this Agreement and to the extent not inconsistent with the Bankruptcy Code, the Bankruptcy Rules, the operation and information requirements of the Office of the United States Trustee (the "OIRR"), any orders entered by the Bankruptcy Court in Seller's Chapter 11 Case, and subject to the availability of Cash Collateral financing, during the period prior to Closing, Seller shall conduct its operations in compliance with all other applicable laws and regulations in all material respects, and to the extent consistent therewith so as to preserve the current value and integrity of the Assets, pay all post-petition taxes as they become due and payable, maintain insurance on the Assets (in amounts and types consistent with past practice), use commercially reasonable efforts to preserve its relationships with franchisees, customers, suppliers and others having business dealings with it. Without limiting the generality of the foregoing, prior to Closing, Seller shall:
(i) Conduct , subject to the Business according requirements of the Bankruptcy Code, Bankruptcy Rules, the OIRR, any orders entered by the Bankruptcy Court in Seller's Chapter 11 Case and subject to the availability of cash collateral financing, conduct its operations in the ordinary and usual course of business and use Seller's best efforts to maintain and preserve the organization of the BusinessAssets, the Business and its employees and relationships with suppliers, customers and others; andemployees.
(ii) Inform 15.2 Seller shall inform Buyer in writing from time to time of the development of any material matters relating to the Business, Business or Assets including, without limitation, any adverse changes in the results of operation operations or financial position of the Business or Assets or any litigation, proceeding proceeding, or government investigation instituted or threatened against Seller relating to the Business or Assets or the occurrence of any factor that might give rise to any such litigation, proceeding proceeding, or investigation as aforesaidinvestigation.
b. 15.3 Seller shall use its commercially reasonable efforts to market and sell its company-owned stores to franchisees who execute a valid franchise agreement and supply agreement for Kodak products. Upon a sale of any company-owned store, Seller shall receive an increase in the Purchase Price of $15,000 pursuant to Section 5.4.3. In connection with the sale of any company-owned store, Seller shall use its commercially reasonable efforts to cause the landlord to enter into a direct Lease with the purchasing franchisee without recourse to Seller.
15.4 Seller shall not, without the prior written consent of Buyer:
(i) Mortgage, pledge or subject any of the Assets to liens, security interests or other obligations or encumbrance;
(ii) 15.4.1 Sell or otherwise transfer any of the Assets other than the sale of inventory in the ordinary course, except pursuant to Section 15.3;
15.4.2 Take any action to waive or compromise any material claims (iii) Enter into whether or not asserted in any contract or agreement relating to the Business not pending litigation), which are included in the usual ordinary Assets except as provided in this Agreement, outside of the normal course or terminate or make any material change in any contracts or agreements relating to the Business; orof business;
(iv) 15.4.3 Increase or agree to increase in any manner the compensation of any of the employees of the Business or commit the Business to any pension, retirement retirement, or profit sharing plan or agreement or employment agreement with or for the benefit of any employee or other person, outside of the normal course of business.
c. 15.5 Seller shall not enter into any new contracts relating to the Business, except in the ordinary and usual course of business consistent with past practices, and shall not in any event enter into any contracts relating to the Business providing for total payment by Seller in excess of $10,000 without Buyer's prior written consent.
15.6 Seller shall not, without Buyer's prior written consent, cancel, amend, modify or breach any Assumed Contracts or Assumed Obligations.
15.7 Seller shall afford to Buyer and its counsel, auditorsaccountants, and authorized representatives full opportunity and access to inspect, investigate and audit all personnel, properties, records books, records, contracts and other documents of the Business and shall furnish such financial and other information with respect to the Business, its personnel personnel, and property as Buyer may reasonably require, except that such access shall not be disruptive to Seller's require either offsite of the Business premises or onsite during normal Business operationbusiness hours.
d. 15.8 Except as otherwise provided in this Agreement, all revenues, profits, losses losses, risk of loss and liabilities resulting from the ownership or operation of the Seller's Business and the Assets before Closing shall accrue to and be the responsibility of Seller's responsibility. All revenues, profit, losses losses, and liabilities resulting from the ownership or operation of the Assets after Closing shall accrue to and be the responsibility of Buyer's responsibility. Seller shall keep the Assets adequately insured against fire and casualty until Closing. Buyer shall show continuing evidence that If any part of the Assets are adequately insured against damaged or destroyed by fire and or casualty after Closing until all obligations to Seller have been satisfied. Prior to before Closing, the Seller shall assign all risk insurance proceeds to Buyer. In the absence of loss adequate insurance proceeds for the full replacement value of any Assets, Buyer shall be borne by Seller; after Closing, all risk receive a credit to the Purchase Price in the amount of loss shall be borne by Buyerany shortfall.
e. 15.9 Seller shall pay all amounts due under written or oral Area Developer Agreements, as and when due, and shall pay all amounts due under the Area Developer Agreements at Closing. If Seller fails to make all such payments, Buyer may take a credit toward the Purchase Price in an amount equal to any such deficiency pursuant to Section 5.4.4 and provided that Buyer remit same to the Area Developers.
15.10 Seller will cause all property owned or leased by it to be insured against all ordinary and insurable risks (except in respect of any leased property where the terms of the lease do not impose on lessee the obligation to maintain insurance) and will operate, maintain maintain, and repair all its property in a careful, prudent prudent, and efficient manner.
f. Each party to this Agreement hereby covenants and agrees to 15.11 Seller shall furnish all information to and to make all filings required by any statute state or governmental regulationregulation including making the appropriate filing and notices with the appropriate federal and state environmental protection agency in any state where it operated a company-owned store.
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Operation Pending Closing. During the period from the date hereof to Closing:
a. Seller shall:
Except (i) Conduct the Business according to the ordinary and usual course and use Seller's best efforts to maintain and preserve the organization of the Businessas otherwise expressly contemplated by this Agreement, its employees and relationships with suppliers, customers and others; and
(ii) Inform Buyer in writing from time to time of the development of any material matters relating to the Business, including, without limitation, any adverse changes in the results of operation or financial position of the Business or any litigation, proceeding or government investigation instituted or threatened against Seller relating to the Business or the occurrence of any factor that might give rise to any litigation, proceeding or investigation as aforesaid.
b. Seller shall not, without with the prior written consent of Buyer:
, (iii) as prohibited or restricted by the Bankruptcy Code or other applicable Laws or by the terms and provisions of any debtor in possession financing agreement entered into in the Bankruptcy Case (the “DIP Agreement”), or (iv) as described on Schedule 8.1 attached hereto and incorporated herein by this reference, from the date hereof until the earlier of the termination of this Agreement or the Closing Date, the Sellers shall use commercially reasonable efforts to: (a) conduct the Sale Property and Assumed Liabilities in the usual and ordinary course taking into account the Bankruptcy Case, applicable bankruptcy Law, and the Orders of the Bankruptcy Court in respect of the Bankruptcy Case, and shall timely satisfy, through the Closing, all post-Petition Date obligations arising under any Potential Assigned General Contract that is permitted or required to satisfy under the Bankruptcy Code or any Order of the Bankruptcy Court, and shall not (except as expressly authorized by Buyer, in writing) seek to reject any such Contract, and (b) use commercially reasonable efforts to preserve intact the Sale Property and the Assumed Liabilities, to keep available the services of its current employees and agents and to maintain its relations and goodwill with its suppliers, customers, distributors and any others with whom or with which it has business relations. Further, without Buyer’s written consent, which shall not be unreasonably withheld or delayed, Sellers shall not: (i) Mortgageterminate (other than by expiration), pledge or subject amend or modify (other than by automatic extension or renewal) in any of material respect any Assigned General Contract or Potential Assigned General Contract relating to the Assets to liens, security interests or other obligations or encumbrance;
Sale Property; (ii) Sell settle or compromise any pending or threated material Litigation that could give rise to Liabilities of the Business that are not Excluded Liabilities; (iii) sell, assign, license, transfer, convey, lease, surrender, relinquish or otherwise dispose of any material portion of the Sale Property, other than pursuant to existing Contracts; (iv) subject any portion of the Sale Property that is material to the Business to any Interests; (v) accelerate the collection of, discount or compromise, or factor, sell or otherwise transfer any of the Assets other than Accounts Receivable that arose from the sale of inventory Products in the ordinary course;
(iii) Enter into any contract or agreement relating 30 days prior to the Business not in date of this Agreement or that arise from the usual ordinary course sale of Products on or terminate after the date of this Agreement; or make any material change in any contracts (vi) agree or agreements relating commit to the Business; or
(iv) Increase or agree to increase in any manner the compensation of do any of the employees foregoing. Nothing contained in this Agreement is intended to give Buyer or its Affiliates, directly or indirectly, the right to control or direct the business of the Business or commit the Business to any pension, retirement or profit sharing plan or agreement or employment agreement with or for the benefit of any employee or other person.
c. Seller shall afford to Buyer and its counsel, auditors, and authorized representatives full access to all personnel, properties, records and documents of the Business and shall furnish such financial and other information with respect Sellers prior to the Business, its personnel and property as Buyer may reasonably require, except that such access shall not be disruptive to Seller's normal Business operationClosing.
d. Except as otherwise provided in this Agreement, all revenues, profits, losses and liabilities resulting from the ownership or operation of the Business and the Assets before Closing shall accrue to and be the responsibility of Seller. All revenues, profit, losses and liabilities resulting from the ownership or operation of the Assets after Closing shall accrue to and be the responsibility of Buyer. Seller shall keep the Assets adequately insured against fire and casualty until Closing. Buyer shall show continuing evidence that the Assets are adequately insured against fire and casualty after Closing until all obligations to Seller have been satisfied. Prior to Closing, all risk of loss shall be borne by Seller; after Closing, all risk of loss shall be borne by Buyer.
e. Seller will cause all property owned or leased by it to be insured against all ordinary and insurable risks and will operate, maintain and repair all its property in a careful, prudent and efficient manner.
f. Each party to this Agreement hereby covenants and agrees to furnish all information and to make all filings required by any statute or governmental regulation.
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